Gorringe v The Queen

[2002] WASCA 285

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   COURT OF CRIMINAL APPEAL

CITATION:   GORRINGE -v- THE QUEEN [2002] WASCA 285

CORAM:   WALLWORK J

MURRAY J
ANDERSON J

HEARD:   10 SEPTEMBER 2002

DELIVERED          :   18 OCTOBER 2002

FILE NO/S:   CCA 171 of 2001

BETWEEN:   KEVIN JAMES GORRINGE

Appellant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal against conviction - Sexual penetration without consent - Semen stains found on clothing subject to DNA analysis - Whether DNA evidence admissible - Whether prejudicial effect outweighs probative value

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr R D Young

Respondent:     Mr P J Urquhart

Solicitors:

Appellant:     Gunning

Respondent:     State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. WALLWORK J:  I agree with the reasons for judgment and the conclusions of Anderson J.

2. There is nothing I wish to add.

3. MURRAY J:  I respectfully agree with Anderson J, for the reasons given by his Honour, to which I have nothing to add, that this appeal should be dismissed.

4. ANDERSON J:  The appellant stood trial in the District Court in November 2001 on four counts alleging sexual offences committed on another male at Casuarina Prison in November of the previous year.  The first two counts were of sexual penetration without consent in the form of fellatio committed on the same date.  Count (3) was of unlawful and indecent assault committed two days later.  Count (4) was another charge of that offence committed four days after the offence alleged in count (3).

5. The jury returned verdicts of guilty on counts (1) and (2) and acquitted the appellant of the offences charged in counts (3) and (4).  The appellant appeals against his conviction on counts (1) and (2).

6. Both the appellant and the complainant were sentenced prisoners.  The appellant was of the age of about 43 and the complainant was of the age of about 18 at the time of the alleged offences.  Both worked in the spray‑painting shop at the prison.  Based on the complainant's evidence, the Crown case was that the appellant got the complainant into a ventilation cavity behind the back wall of the spray‑painting shop where he first committed fellatio on the complainant and then made the complainant commit fellatio upon him to ejaculation.  It was the complainant's evidence that the appellant ejaculated onto the front left shoulder area of the blue work overalls which the complainant was wearing and that, after the appellant had ejaculated, the complainant wiped his hands on the seat of his (the complainant's) overalls.

7. The complainant did not immediately report the incident.  His evidence was that he made a report to a prison officer several days later after the appellant had made further unwelcome sexual advances.  It was not in dispute that this was on 27 November, some six days after the alleged encounter in the ventilation cavity.  Nor is it in dispute that police did not commence to search the spray‑painting shop and surrounds until two days after that, on 29 November. 

1. A number of items of clothing were seized in the search, including some overalls.  Two sets of overalls were taken from the clothing lockers in the spray‑painting shop and a third set of blue overalls was found wrapped in a plastic bag beside a rubbish disposal bin at the rear of the spray‑painting shop.

2. An attempt was made to have the complainant identify the overalls which he had been wearing at the time, but he was not able to do so.  Nothing of significance was found on any item of clothing, except the blue overalls which had been found in the plastic bag.  Forensic examination of those overalls revealed four semen stains on the outside of them.  Stain A was on the upper left front, stain B was on the upper front of the left leg, stain C was on the upper front of the right leg and stain D was on the back of the left sleeve, near the cuff.  No stains were located on the seat of the overalls. 

3. The stains were subjected to DNA analysis and DNA profiles were obtained from sperm cell fractions of stains B and D.  These matched the appellant's DNA profile and it is not disputed that these two stains were of the appellant's ejaculated semen.  Although no DNA profile was obtained from the other two semen stains, it was not the appellant's case that those stains were or might have been of another person's semen. 

4. On behalf of the appellant, it was submitted that the DNA evidence should not have been admitted at trial because it was not proved that the stained overalls were the overalls which the complainant was wearing at the time the alleged offences were committed.  As it was put in argument by counsel for the appellant, there was "nothing to connect" the stained overalls to the complainant. 

5. I am not persuaded that the admissibility of the DNA evidence depended on the prosecution first proving that the stained overalls were the ones which the complainant was wearing.  The evidence against the appellant was both direct evidence and circumstantial evidence.  The direct evidence was that of the complainant.  His evidence was that the appellant ejaculated onto the left shoulder of the overalls which he was wearing.  Evidence that a set of overalls fitting the general description of the overalls which the appellant was wearing were found in or in the vicinity of the spray‑painting shop and had the appellant's semen on the outside of them, including on the left shoulder area, was relevant to the question whether the appellant did the act which the complainant said he did.  It was evidence which tended to confirm the complainant's testimony and, in that sense, it tended to prove the appellant's guilt.

6. Counsel for the appellant mentioned a number of matters which he submitted made it not relevant that the appellant's semen was found on the overalls in question.  Apart from the fact that there was no evidence that the overalls in question were those which the complainant had been wearing, counsel also referred to the fact that they were not seized until eight or nine days after the alleged encounter between the two men in the ventilation cavity and were found at a place where someone other than the appellant might have put them, and so on.  In my opinion, these are matters which went to the weight or strength of the circumstantial evidence, not to its admissibility. 

7. Counsel for the appellant also submitted that the fact that the appellant's semen stains were found on the outside of a pair of overalls would have suggested to the jury that the appellant had engaged in an immoral act of some kind, at least masturbation so that the evidence was highly prejudicial and ought not to have been admitted because its prejudicial effect must have outweighed its probative value.  I do not accept this submission.  Proof that the semen of the appellant was found on a set of overalls of the same general description as those which the complainant said he was wearing at the time and that one of the semen stains was located on a part of the overalls where, according to the complainant, the appellant's ejaculated semen had been deposited are facts which the jury was entitled to know in considering whether to accept the complainant's testimonial evidence.

8. The ground of appeal which challenges the admissibility of the evidence is the only ground of appeal and, as it has not been made out, the appeal must be dismissed.