Cook v The State of Western Australia
[2010] WASCA 241
•22 DECEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: COOK -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 241
CORAM: McLURE P
BUSS JA
MAZZA J
HEARD: 15 OCTOBER 2010
DELIVERED : 22 DECEMBER 2010
FILE NO/S: CACR 117 of 2010
BETWEEN: CHRISTOPHER STUART COOK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCHOOMBEE DCJ
File No :IND 1768 of 2009
Catchwords:
Criminal law - Application for leave to appeal against conviction - Verdict unreasonable or unsupported by the evidence - Were verdicts inconsistent - Alleged failure by trial judge to provide a Markuleski direction
Legislation:
Criminal Appeals Act 2004 (WA), s 27(1), s 27(2), s 30(3)(a)
Result:
Application for an extension of time within which to appeal is granted
Leave to appeal is refused on all grounds
The appeal is dismissed
Category: B
Representation:
Counsel:
Appellant: Ms A S Rogers
Respondent: No appearance
Solicitors:
Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
DPJB v The State of Western Australia [2010] WASCA 12
Lefroy v The Queen [2004] WASCA 266; (2004) 150 A Crim R 82
MacKenzie v The Queen [1996] HCA 35; (1996) 190 CLR 348
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
McLURE P: I agree with Mazza J that leave to appeal should be refused generally for the reasons he gives. I propose to make some additional observations on the appellant's claim that the guilty verdict on count 4 is unsafe and unsatisfactory because it is inconsistent with the acquittals on counts 1, 2 and 3.
The appellant has to satisfy the court that the verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the conclusion: MacKenzie v The Queen (1996) 190 CLR 348, 366.
Where multiple offences are alleged involving one complainant, verdicts of not guilty on some counts do not necessarily reflect a view that the complainant was untruthful or unreliable or reflect a want of confidence in the evidence of the complainant. A verdict of not guilty may reflect a cautious approach by the jury to the discharge of a heavy responsibility. For example, supporting evidence may be sought: MacKenzie (367).
The significance of a verdict of not guilty must be considered in light of the facts and circumstances of each case and the directions given by the trial judge. The trial judge gave a standard direction concerning separate charges, noting that the verdicts did not have to be the same on each count.
On my assessment of the evidence, there is a proper way by which the verdicts can be reconciled. The verdicts of not guilty on counts 1, 2 and 3 reflect a cautious approach by the jury. At the time of the events the subject of the charges, the complainant was very intoxicated and drifting in and out of awareness. She could not remember the order in which the conduct occurred and could not say with any certainty whether or not the appellant's son had digitally penetrated her earlier in the evening. The split‑type laceration of which Dr Pitter gave evidence was consistent with recent penetration of the vagina whether by finger, penis or otherwise.
What distinguishes count 4 from the rest of the counts is that there was independent evidence capable of supporting the complainant's evidence that the appellant, without her consent, penetrated her vagina with his penis. It was accepted by the parties that the complainant's DNA contributed to the mixed DNA profile obtained from the swab taken from the head of the appellant's penis.
The defence theory put in cross‑examination was the possibility that the complainant's DNA was on the head of the appellant's penis as a result
of the appellant handling sheets on which the complainant had vomited. However, there was no positive evidence that the complainant had vomited on the bed linen. In cross‑examination the complainant said she did not think she did although she could not positively say she did not (ts 147). Her evidence was that she vomited into a bucket or a bowl.
The appellant did not give evidence at trial. However, in his video record of interview with police on 13 April 2009 (the date of the alleged offences) which was tendered in evidence, he explained to police that the bedding had been washed (it was not said by whom) because it 'smelled of spew'. There was no other evidence at trial relating to the presence of vomit or any associated stain on the bed linen or concerning other matters relevant to the possibility of the innocent transference of the complainant's DNA to the head of the appellant's penis.
Further, the complainant's evidence relating to count 4 is consistent with her subsequent conduct. The complainant's father and stepmother gave evidence that the complainant was hysterical and shaking when, at her request, they collected her in the early hours of the morning on 13 April 2009. She complained to both her father and her stepmother that the appellant had raped her.
I am satisfied that it was open to the jury, as a matter of law and fact, to convict the appellant on count 4 whilst acquitting him of counts 1, 2 and 3.
The appeal has insufficient merit to justify the grant of leave.
BUSS JA: I agree with McLure P.
MAZZA J: Before the court are the appellant's applications for an extension of time and leave to appeal against conviction.
The notice of appeal was filed one month out of time. There is an affidavit from the appellant's lawyer, Ms Abigail Rogers, sworn 15 July 2010 explaining the delay. The delay was caused by a combination of factors, including the time it took to come to an opinion about the merits of the appeal and obtaining funding for it. The delay is not gross. I would grant an extension of time.
The appellant was charged on indictment with four counts of sexually penetrating the complainant without her consent as follows:
(1)On 13 April 2009 at [a Perth suburb] Christopher Stuart Cook sexually penetrated [the complainant] without her consent, by penetrating her vagina with his fingers.
(2)On the same date and at the same place Christopher Stuart Cook again sexually penetrated [the complainant] without her consent, by penetrating her vagina with his fingers.
(3)On the same date and at the same place Christopher Stuart Cook sexually penetrated [the complainant] without her consent, by engaging in cunnilingus.
(4)On the same date and at the same place Christopher Stuart Cook sexually penetrated [the complainant] without her consent, by penetrating her vagina with his penis.
Each of these offences was alleged to have occurred in the one incident in the appellant's bedroom at his home. After a trial lasting four days before Schoombee DCJ and a jury, the appellant was acquitted of the first three counts but convicted of the fourth count.
This was not the appellant's first trial on the indictment. The jury at an earlier trial had been discharged before it delivered any verdict. At the earlier trial, the complainant's evidence was recorded by video. This recording was played to the jury at the trial presided over by Schoombee DCJ. However, the complainant gave further, albeit brief, evidence at the second trial.
There are two grounds of appeal. The first ground of appeal alleges that the verdict of guilty on count 4 should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported. In essence, it is alleged that the jury's verdict on count 4 is inconsistent with its verdicts of acquittal on the other counts in the indictment.
The second ground alleges that the learned trial judge erred in law in failing to direct the jury in accordance with what was said by Spigelman CJ: R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82.
Leave to appeal is required for each ground of appeal and leave cannot be granted unless this court is satisfied that the ground has a reasonable prospect of succeeding: s 27(1) and s 27(2) of the Criminal Appeals Act 2004 (WA). To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Uncontroversial facts
On 12 April 2009, the complainant, who was at the time 16 years of age, went to spend the night at the appellant's home. The complainant and the appellant's son, MC, were in a relationship.
The appellant went out for part of the evening and allowed his son and the complainant to remain at home with alcohol he had purchased for them. MC and the complainant drank between them almost an entire bottle of spirits. Each of them became very drunk. Later in the evening, the appellant returned home. The complainant and MC then left the house and went to a nearby beach. There, at the very least, MC and the complainant kissed and cuddled. Exactly what occurred at the beach was a matter of controversy.
Upon their return from the beach, MC passed out on his bed in his room. The complainant had a shower and was told by the appellant that she could get into his bed, which she did. The complainant was still intoxicated. When asked to describe how intoxicated she was out of 10, she replied 'nine' (ts 78). As a result of her intoxication, the complainant was physically ill. It is while she was in the appellant's bed that she said the offences were committed.
At approximately 3.00 am on 13 April 2009, the complainant telephoned her father. She spoke to him and her step‑mother. According to both of them, the complainant seemed to be in a very emotional state. The complainant's father and step‑mother drove to a location close to the appellant's house, arriving there at about 4.00 am. They found the complainant sitting underneath a street light. She was crying uncontrollably. At this point, the complainant said that the appellant had 'raped' her.
The complainant's father went to the appellant's house. There, he found the appellant sleeping on a couch in the living room. The appellant awoke and was then assaulted by the complainant's father. The complainant's step‑mother then arrived at the appellant's house and persuaded the complainant's father to leave. The alleged offences were then reported to the Rockingham Police.
Arrangements were made for the complainant to be medically examined and, at about 9.30 am on 13 April 2009, the complainant was examined by Dr Pitter at the Sexual Assault Resource Centre.
Dr Pitter made a number of observations including the presence of sand and debris around the posterior fourchette (at the base of the vaginal opening) and the peri‑anal area (ts 557), redness to the labia majora and a 0.2 cm split‑type laceration at the posterior fourchette (ts 558). Dr Pitter also took a number of forensic swabs and samples from the complainant.
Dr Pitter said that her findings of foreign debris and the split‑type laceration at the posterior fourchette were suggestive of recent penetration of the vagina (ts 564), but she was unable to say whether the penetration was by a finger, a penis or an object. She said that the injuries she observed could be consistent with two teenagers having sex on beach sand (ts 568). She also said that if penetration had occurred in a bed at a time when the complainant had sand around the peri‑anal area, that penetration could have pushed the sand into the area of the posterior fourchette (ts 570).
At about the time that the complainant was being medically examined, detectives, including Detective Andrew Kenworthy, attended at the appellant's house and executed a search warrant. Parts of the search and an interview that Detective Kenworthy conducted with the appellant were recorded onto a DVD. The DVD recording commences at 10.45 am and ceases at 12.38 pm. That DVD was played at trial (exhibit 8). The interview with the appellant is short. It commences at 10.45 am and ceases at 10.55 am. I will refer to it later in these reasons. The police observed and took photographs of bed linen hanging on an outside line, and then seized these items. There is no evidence that the bed linen was forensically examined. At some point the appellant's underpants were also seized.
The appellant was arrested and later volunteered to give forensic samples to a registered nurse, Lynette Jackson. Amongst the samples and swabs taken by her were three penile swabs, one of which was taken from the head of the appellant's penis. This swab was taken at 1.51 pm on 13 April 2009 (ts 622).
Those swabs, along with the forensic samples taken by Dr Pitter, were analysed for DNA by Mr Laurence Webb, a senior forensic scientist who has been involved in DNA profiling since 1989 (ts 576). He said that the swab taken from the head of the appellant's penis provided a mixed DNA profile from at least two people. Mr Webb said that the appellant and the complainant could not be excluded as possible contributors to that profile. His evidence was that it was 55 million times more likely that the mixed DNA had come from the appellant and the complainant, than from the appellant and some other person. Neither of the two other penile swabs revealed any reportable DNA (ts 583).
Mr Webb said that the appellant's underpants revealed a weak mixed DNA profile, but he could not say if the appellant or the complainant had contributed to it (ts 585 ‑ 586).
None of the forensic samples taken by Dr Pitter from the complainant revealed the presence of saliva, semen or spermatozoa, nor was any reportable DNA recovered from those samples. Mr Webb said that making contact with someone does not necessarily mean that DNA will be left behind (ts 589). He also said that even when sexual intercourse may have taken place, in 'up to 50% of sex assault cases' no male DNA will be recovered (ts 593).
In cross‑examination, Mr Webb said that it was possible for a person lying down in bed to shed cells from which DNA can be recovered (ts 591). Defence counsel then cross‑examined Mr Webb as follows:
If someone stripped a bed of sheets, let's say for example because someone had vomited in it, so they were collecting up the sheets the next morning for the purpose of washing them; carried those sheets into the laundry, went to toilet. For the purposes of going to the toilet grabbed the head of their penis to go to the toilet. It's quite possible, isn't it, the transference of DNA could have occurred from the person sleeping in the bed to the head of the penis of the person who stripped the bed, if that was a different person ‑ ‑ ‑?‑‑‑When you say 'quite possible', it would require a fairly concentrated number of cells that you would need to come into contact with. And they would have to contain viable DNA which we could detect and actually recover a - a reasonable DNA profile.
MAUGHAN, MR: Perhaps I'll rephrase the question for you. You're not able to exclude that possibility, are you, as a scientist?‑‑‑No, I - I can't exclude that as a possibility.
Okay. And equally, you're not able to state it in terms of a percentage likelihood that that's ‑ ‑ ‑?‑‑‑No. But just given what I've said, yes (ts 591 ‑ 592).
Mr Webb confirmed that no semen or spermatozoa had been found from any of the forensic samples that he examined. He agreed that an explanation for this was that no semen had been deposited into the complainant through sexual intercourse (ts 592). In re‑examination, Mr Webb said that washing the bedclothes would 'quite readily' wash out normal skin cells that had been shed, although DNA may still be recovered. He was asked what he meant when he referred in cross‑examination to a 'fairly concentrated number of cells'. He replied at ts 596 ‑ 597:
And you said it would require a concentrated number of cells. Now, what do you mean by a concentrated number of cells ‑ ‑ ‑?‑‑‑it would be more likely if you were dealing with, like, a stain situation, and particularly wet material, which would contain cells - cellular material. So a direct sort of stain, rather than just, you know, just looking at the general sheet or doona, which would - yes, it may contain quite a few cells, but over a fairly large area.
If you were to - if it was a concentrated stain area containing female cells, in this case, there is - there is more of a likelihood of that happening.
FITZPATRICK, MR: Right. You also used the word wet. If it's a wet stain ‑ ‑ ‑?‑‑‑Yeah, well, it would be more likely for a transfer if one of the surfaces is wet, where you're actually then able to - that material can be transferred more readily than if it was a dry one.
The appellant elected not to testify, however, MC testified for the defence.
The contested evidence
(i) The complainant's evidence
The complainant denied engaging in sexual intercourse with MC on the beach. However, she was unsure about whether he had digitally penetrated her. During the complainant's brief cross‑examination in the second trial, the following exchange took place:
Did you have sex on the beach with [MC]?---No.
What did you understand when I used the word 'sex' to you on the last occasion?---Having sex.
Okay, so penile intercourse?---Yeah.
Is that right?---Yes.
Did you understand that expression to extend to digital intercourse, or we've previously referred to it as fingering?---Yeah, no.
Okay?---We didn't.
Okay. I just wanted to clarify your answer. I'm suggesting to you that [MC] fingered you down at the beach?---No.
Are you certain about that?---Yes, I'm pretty sure ‑ ‑ ‑
You seem unsure, [the complainant]?---I'm pretty sure we didn't.
Pretty sure, but not certain?---No, no, no. Yeah, no. We didn't.
You seem very unsure about your answer, [the complainant]?---We didn't.
Can I suggest this to you; you can't be certain because of your state of drunkenness?---You can suggest it.
And what would you say to that proposition? Would you agree with it or disagree with it?---I'm pretty sure we didn't, but I - yeah, I can't be certain (ts 528).
In her recorded evidence, the complainant said that after she had returned from the beach and showered she asked the appellant 'Where do I sleep?' to which the appellant replied 'I'll put you in my room' (ts 77). When she got into the bed the appellant was in the room. She said that she 'threw up' perhaps three or four times. She testified that she had been given a bucket or bowl. The bucket or bowl was 'in the bed' whilst she was throwing up, but afterwards she put it to the side (ts 79).
She gave evidence that at one point when she was 'throwing up' the appellant got into bed with her and started to rub the side of her body. She said that the appellant took off her pyjama pants, and when she asked him '[w]hat are you doing?', he replied 'I'm just trying to make you more comfortable' (ts 80). She said that because of her intoxication she was 'in and out of awareness' (ts 80). When asked about her recollection at this point she said 'I remember certain things, but I don't really remember the order they happened in' (ts 80).
She said '[a]t one point he was fingering me and he went down on me and he had sex with me' (ts 82).
With respect to count 1 she said that '[h]e was down near the bottom half of my body and he had his fingers going in and out of me' (ts 82). She said that she did not want him to put his fingers into her vagina (ts 83). With respect to count 2 she said that he rubbed her clitoris (ts 83). With respect to count 3 she said 'he was doing oral sex to me' (ts 83). With respect to count 4 she said 'he had his penis inside my vagina' and he was 'moving in and out' (ts 84).
In cross‑examination she was asked about each of the alleged acts of sexual penetration. As to count 1 she said that the appellant used 'one or two fingers but I think it was no more than that' (ts 161). She said that she was conscious of this occurring for 'a few seconds' (ts 161).
As to count 2 she said that this occurred 'around the time he was fingering me'. She described it as 'a separate incident'. She said that she did not remember whether the appellant used his fingers or hand but she said that the appellant touched her clitoris (ts 178 ‑ 179).
As to count 3 when she was asked by defence counsel to describe what the appellant did she said 'he was licking my vagina' (ts 162).
As to count 4 she confirmed that 'he [the appellant] was having sex with me'. When asked by defence counsel to describe what he did she said '[h]is penis was inside me' (ts 164).
With respect to each act of penetration, the complainant was unable to say how long the act lasted. She said that she did not want any of the acts of sexual penetration to occur.
She testified that after the appellant finished having sexual intercourse with her he said 'I should stop'. The complainant said that she told the appellant that she wanted to go home to which the appellant replied, 'I'm not sending you back to your dad like this' (ts 167).
The complainant said that she fell asleep and woke up at 2.46 am. She gave evidence that she went to MC's room and got his mobile phone and then rang her father and asked him to come and get her (ts 87).
She said that she then left the appellant's house. As she did so, she noticed that the appellant was asleep on a couch.
(ii) The appellant's record of interview
The appellant said in his record of interview that, at about 6.00 pm on 12 April 2009, he caught up with a friend at a local tavern. He said that he arrived back home at about 8.00 pm and that his son and the complainant had been drinking. He said that he allowed them to go for a walk down to the beach. He described their state of sobriety when they returned as 'they were both pretty well drunk' (video transcript page 4).
The appellant said that MC went to bed and 'didn't move from there'. He said that he put the complainant into his bed. He told the police that she asked for a bucket so she could be sick. He said that he got her a bowl and that for the next hour he sat with her 'continually emptying the bowl while she threw up' (video transcript page 4).
The appellant said that he was 'backwards and forwards emptying buckets' but eventually the complainant went to sleep at about 11.00 pm. He told the police that he checked on the complainant and then slept on the lounge until about 4.00 am when the complainant's father came into the house and started throwing punches at him.
The appellant told the police that he had not changed his clothes or showered. He said that he had shaved and done some dishes. He then said to the police:
I can tell you if you're gonna go through the bedding it's all out on the line cos I washed it, cos it smelled of spew ... Everywhere (video transcript page 6).
(iii) MC's evidence
In examination‑in‑chief by defence counsel, MC was asked about what happened at the beach. At ts 649 the following exchange took place:
Did the intimacy between you and [the complainant] progress beyond kissing?‑‑‑Yes, it did.
Can you describe for the members of the jury, how the physical altercation, or the intimacy, progressed as between you and [the complainant]?‑‑‑Yeah, so we were kissing and then we were hugging, and then I fingered her.
Okay. If you use the word 'finger', just for the sake of clarity, what do you mean by that expression?‑‑‑I put my fingers in her vagina.
Okay. You've said fingers. More than once?‑‑‑Yeah, two fingers.
So I - I rephrase that question. More than one finger?‑‑‑Yes.
Okay. How many fingers?‑‑‑Two fingers.
Okay. All right. Did the intimacy progress beyond that?‑‑‑Not to my recollection. Not that I remember.
Not that you remember. Do you recall having sex with her on the beach?‑‑‑No, I don't.
Is it possible you had sex with her on the beach?‑‑‑Yes.
In cross‑examination, the State prosecutor asked MC if he had told the prosecutor at the first trial, Mr Elliott, and Detective Kenworthy in a meeting before he testified at that trial, that he had no recollection of inserting his fingers into the complainant's vagina on the beach. He denied this, alleging that he had said that he had put his finger into the complainant's vagina (ts 666).
As a result of this evidence, the State was given leave to call evidence in rebuttal from Mr Elliott and Detective Kenworthy. Both said that MC told them that he could not remember digitally penetrating the complainant at the beach.
The cases at trial
The crucial issue for the jury to decide on each count was whether the State had established beyond reasonable doubt that the complainant had been sexually penetrated as alleged. The complainant's lack of consent was not challenged. Further, no alternative case was put by the defence to the effect that if the acts of sexual penetration occurred, the appellant had an honest and reasonable but mistaken belief that the complainant had consented. It was not suggested that the complainant was mistaken as to the identity of the offender.
The State's case was that the complainant, although obviously affected by alcohol, was a truthful and reliable witness. The State submitted that the evidence that she had been penetrated by the appellant's fingers and penis was supported by the evidence of Dr Pitter, and that the allegation of penile penetration was further supported by the evidence of Mr Webb concerning the mixed DNA profile on the swab taken from the head of the appellant's penis. It was submitted by the State that the complainant's credibility was strengthened by the evidence of recent complaint and her emotional distress.
The defence case was that the appellant did not commit any sexual acts upon the complainant. The defence submitted that the evidence of MC should be accepted as to what occurred on the beach, and that his evidence was confirmed by the presence of sand and other debris in the complainant's genital area. MC's testimony was said to explain the evidence of Dr Pitter. It was submitted that the complainant's distress was caused by her remorse in engaging in sexual activity with MC.
With respect to the DNA evidence, the defence case theory was that the complainant's DNA could have been on the bedding and then transferred to the appellant's hands when he washed the bedding and then, when he later went to urinate, he could have deposited some of that DNA onto the head of his penis (the transfer theory).
The trial judge's summing up
Her Honour gave an orthodox and appropriate separate consideration direction (ts 708 ‑ 709) which is not the subject of any criticism. Her Honour was not asked to give any direction based on the authority of Markuleski.
Ground 1
The appellant submitted that the verdicts were factually inconsistent. It was submitted that the quality of the complainant's evidence on count 4 was no different from her evidence with respect to the first three counts for which the appellant was acquitted. It was submitted that the medical evidence of Dr Pitter and the DNA evidence of Mr Webb were plausibly explained in a way consistent with the appellant's innocence. It was submitted that there was no logical or reasonable basis upon which the jury, having found that the complainant's testimony was insufficient to ground a verdict of guilty on the first three counts, nevertheless convicted on count 4. Accordingly, the verdict of guilty on count 4 cannot be supported and should be set aside.
Section 30(3)(a) of the Criminal Appeals Act empowers this court to set aside a conviction if, having regard to the evidence, the verdict of guilty is unreasonable or cannot be supported.
The law with respect to an appeal where it is alleged that the verdict is unreasonable or cannot be supported, and in particular where it is said that the conviction is tainted with inconsistency, was explained by Owen JA in DPJB v The State of Western Australia [2010] WASCA 12 [67] ‑ [82].
The court must undertake its own independent assessment of the whole of the evidence presented at trial, paying full regard to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and to the consideration that the jury has had the benefit of having seen and heard the witnesses. It is not simply an issue of whether there was some evidence upon which the jury could convict. It is whether, based on the whole of the evidence, it was open for the jury to be satisfied beyond reasonable doubt that the accused was guilty.
The task which must be undertaken is to review the evidence and determine whether the differing verdicts can, as a matter of logic and reasonableness, stand together. If there is a proper way by which an appellate court can reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion would generally be accepted.
The complainant gave clear evidence of each count of sexual penetration both in examination‑in‑chief and cross‑examination. Leaving aside the issue of her intoxication, her evidence as to each act was capable of acceptance beyond reasonable doubt.
However, the complainant was, as she freely admitted, very intoxicated when the offences were allegedly committed by the appellant. This fact must impact adversely on any assessment of her reliability. For this reason, the jury, acting reasonably, may not have been prepared to convict on the complainant's unsupported evidence of a particular act of sexual penetration.
There was no independent evidence capable of supporting the complainant's testimony with respect to the alleged rubbing of the clitoris (count 2), and the licking of the vagina (count 3). The findings of Dr Pitter were not specific enough to confirm a rubbing of the clitoris or the licking of the vagina. With respect to count 3, no evidence of saliva was found by Mr Webb on the swabs of the complainant's genital area taken by Dr Pitter. In the light of the absence of supporting evidence, the verdicts of acquittal on counts 2 and 3 are logical and reasonable.
Dr Pitter's evidence concerning the laceration of the posterior fourchette was capable of supporting the allegations of digital and penile penetration of the vagina (counts 1 and 4) because the laceration was, as Dr Pitter explained, the type of tear to the skin that is caused by a blunt force being applied to that area and was suggestive of recent penetration of the vagina including by a penis or a finger (ts 563 ‑ 564). Of course, Dr Pitter could say nothing about the identity of the person who may have penetrated the complainant's vagina.
The defence dealt with Dr Pitter's evidence by reference to the evidence of MC. MC's testimony that he had digitally penetrated the complainant's vagina at the beach and possibly penetrated her with his penis, combined with the presence of sand and debris in the complainant's genital area, left open a conclusion that the complainant engaged in sexual behaviour involving the penetration of her vagina by MC on the beach. Dr Pitter herself agreed that her findings were consistent with this conclusion. However, MC's evidence that he had digitally penetrated the complainant on the beach was inconsistent with what he had told Mr Elliott and Detective Kenworthy during the first trial. To my mind, this inconsistency eroded MC's credibility. Although I have reservations about MC's testimony, I am unable to conclude that his evidence had to be rejected when seen in the context of the presence of sand and debris in the complainant's posterior fourchette and the complainant's lack of certainty about what had occurred at the beach. Consequently, Dr Pitter's evidence alone was insufficient to support the acts of penetration the subject of counts 1 and 4.
I now turn to the evidence of Mr Webb. Mr Webb's DNA evidence, which was unchallenged, was powerful evidence that the appellant had penetrated the complainant's vagina with his penis as alleged in count 4. The swab taken from the head of the appellant's penis revealed a mixed DNA profile which was highly likely to have included DNA belonging to the complainant. The absence of semen and spermatozoa in the forensic samples taken from the complainant is not significant. It was not alleged by the complainant that the appellant had ejaculated.
What must be carefully considered is the transfer theory. It is true that Mr Webb could not exclude the transfer theory as a possibility, but the existence of a possibility says virtually nothing about its cogency. What must be assessed is the cogency of the theory in light of the evidence.
The transfer theory involves three steps. The first step involves the complainant somehow leaving cells which contained her DNA on the bedding. Mr Webb's evidence was that a transfer of DNA would require contact with 'a fairly concentrated number of cells' containing the complainant's DNA. He described 'a fairly concentrated number of cells' as a concentrated stain area of female cells. The second step requires a transfer of the complainant's DNA onto the hands of the appellant. Mr Webb said that such a transfer would more readily occur if there was a wet stain on the bed. The third step involves the transfer of the complainant's DNA from the appellant's hands to the head of his penis. The mechanism by which this transfer is said to have occurred is by the appellant, presumably without washing or wiping his hands after handling bedding which he said smelled of 'spew', urinating and during that process, holding his penis in such a way that the complainant's DNA was transferred onto the head of his penis.
Based on the evidence that cells from which DNA can be recovered could be shed by a person lying in bed, it could be accepted that the complainant left cells on the bedding from which DNA could be transferred, although transference from these cells is unlikely as they are not in the form of a stain. I also note the evidence that the complainant was vomiting. The evidence was that she vomited into a bucket or bowl. There was no direct evidence that she vomited onto the bed, nor was there any evidence of spillage or spatter onto the bedding. The appellant did tell the police that the bedding 'smelled of spew'. It could be inferred that somehow there was some vomit on the bedding which gave rise to that smell. Assuming vomit contains DNA, there is no evidence of any concentrated area of staining on the bedding that the appellant handled. The amount of cellular material on the bedding from which the complainant's DNA could be transferred is, even in a general sense, unknown.
With respect to the second step, there is no evidence of any wet stain on the bedding the appellant handled. Although Mr Webb did not appear to rule out the possibility of a transfer of cells in the absence of a wet stain, this absence made the likelihood of transfer weaker.
As to the third step, there was no evidence at all that the appellant, having handled the bedding, without washing or wiping his hands, then handled the head of his penis while urinating. There is no evidence that the appellant urinated after handling the bedding, or if he did urinate, that he handled the head of his penis.
The transfer theory cannot be plausibly sustained on analysis. It is, in the end, largely speculative. It was entirely open for the jury to reject the defence theory and to be satisfied beyond reasonable doubt that the presence of DNA on the swab taken from the head of the appellant's penis, was as a result of the appellant penetrating the complainant's vagina with his penis as she had testified. The DNA evidence was a relevant and highly cogent point of differentiation between count 4 and the other three counts on the indictment.
The complainant's evidence with respect to counts 1, 2 and 3 was either unsupported, or the evidence that could have supported it was capable of being explained by the testimony of MC. The verdicts of not guilty on these counts were open to the jury. However, the complainant's evidence with respect count 4 was supported in a highly cogent way by the DNA evidence. The verdict of guilty on count 4 was open to the jury.
Having assessed the whole of the evidence, I have concluded that the differing verdicts were logical and reasonable and are not tainted by inconsistency. It was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on count 4.
There is no substance to ground 1.
Ground 2
In Markuleski, Spigelman CJ at [184] ‑ [191] concluded that, as a general rule in word‑against‑word cases, some direction should be given as to the effect upon the assessment of the complainant's credibility if a jury finds itself unable to accept the complainant's evidence with respect to any count.
The fundamental difficulty which confronts the appellant with respect to this ground of appeal is that in Lefroy v The Queen [2004] WASCA 266; (2004) 150 A Crim R 82 [27] ‑ [32], Murray J, with whom Steytler and Miller JJ agreed, declined to follow Markuleski, because to give directions of the type contemplated in Markuleski has the potential to undermine the direction customarily given to a jury (and given in this case) to decide each count on the indictment separately, and may invite propensity reasoning. The appellant does not challenge the correctness of Lefroy, which stands as the law in this State.
This ground of appeal has not been made out.
Conclusion
In my opinion, neither ground of appeal has any reasonable prospect of succeeding. The appeal must be dismissed.
Orders
1.The application for an extension of time within which to appeal is granted.
2.Leave to appeal is refused on all grounds.
3.The appeal is dismissed.
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