Gregory John Challenger v The Queen - [2021] VSCA 60

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2019 0249

GREGORY JOHN CHALLENGER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2021
DATE OF JUDGMENT:	17 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 60
JUDGMENT APPEALED FROM:	DPP v Challenger (Unreported, County Court of Victoria, Judge Gaynor, 16 May 2019) (Conviction)

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CRIMINAL LAW — Appeal — Conviction — Historic aggravated rape — Offending occurred on 1 January 1986 — Applicant’s DNA samples taken for unrelated investigation in 2015 match DNA samples taken from complainant’s clothing in 1986 — Whether convictions unsafe and unsatisfactory — Whether jury could not have excluded contamination as reasonable hypothesis explaining presence of applicant’s DNA on complainant’s clothing — DNA evidence compelling — Jury entitled to be satisfied beyond reasonable doubt that alibi evidence unreliable — Acquittal on one charge of attempted aggravated rape not inconsistent with guilty verdicts on remaining three charges — Leave to appeal refused — MacKenzie v The Queen (1996) 190 CLR 348 and MFA v The Queen (2002) 213 CLR 606 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Mandy SC with Ms K Blair	Criminal Lawyers Geelong
For the Respondent	Ms M Mahady	Ms A Hogan, solicitor for Public Prosecutions

PRIEST JA
NIALL JA
T FORREST JA:

Introduction and overview

At Lorne, in the early hours of 1 January 1986, ‘SD’, a woman then aged 21 years, was beaten and raped orally and vaginally by two of a group of four men. Her evidence was that the first man to orally rape her had a moustache, and that some of his ejaculate was deposited onto her jumper. More than three decades elapsed before the applicant was accused of being one of the rapists.

As it transpired, samples taken in 1986 from the jumper worn by SD during the rape were subjected to a ‘cold case’ examination in 2012. They rendered a DNA profile which was placed on the National DNA Database. On 26 October 2015, notification was given to police that the DNA profile matched that of a sample taken from the applicant in August 2015 as part of an unrelated investigation. Subsequent scientific comparison of the applicant’s DNA with a DNA sample extracted from the jumper rendered a statistical weighting that it was 100 billion times more likely if the applicant was a contributor to the DNA than if he was not.

On 3 March 2016, a little over 30 years after she was attacked, police showed SD a manila folder ‘photoboard’ containing twelve photographs. She selected a photograph of the applicant as being one of her assailants (‘the photoboard identification’). Less than a week later, on 9 March 2016, police arrested the applicant and charged him with aggravated rape.[1] At that time they collected a buccal swab from him for the purposes of further DNA testing.
[1]The admissibility of the photoboard identification was unsuccessfully challenged in an application for leave to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gregory John Challenger v The Queen

Details

AGLC: Gregory John Challenger v The Queen [2021] VSCA 60
Case: [2021] VSCA 60
Decision Date: 17 March 2021

CaseChat Overview and Summary

The case of Gregory John Challenger v The Queen was heard in the court, which dealt with a serious criminal appeal regarding convictions for historic aggravated rape offences. The applicant, Gregory John Challenger, appealed against his convictions for multiple counts of aggravated rape that occurred on 1 January 1986. In 2015, DNA samples were collected from the applicant for an unrelated investigation and subsequently matched DNA samples collected from the complainant's clothing in 1986. The primary issue before the court was whether the convictions were unsafe and unsatisfactory given the possibility of contamination of the DNA evidence. The court was also required to determine whether the jury could have reasonably excluded contamination as an explanation for the presence of the applicant's DNA on the complainant's clothing, and whether the jury was entitled to find the alibi evidence unreliable beyond reasonable doubt. Additionally, the court had to consider whether the acquittal on one charge of attempted aggravated rape was inconsistent with the guilty verdicts on the remaining three charges.

The court meticulously reviewed the evidence and concluded that the DNA evidence was compelling and supported the jury's verdict. The court held that the jury was entitled to be satisfied beyond reasonable doubt that the alibi evidence was unreliable. The court found that the jury could reasonably exclude the possibility of contamination, and thus, the convictions remained valid. Furthermore, the court determined that the acquittal on one charge did not necessarily contradict the convictions on the other charges, as each offence was evaluated independently. The decision was in line with previous cases such as MacKenzie v The Queen and MFA v The Queen, which emphasised the importance of the reliability and integrity of DNA evidence in criminal proceedings.

Following the court's reasoning, it was concluded that the convictions were safe and satisfactory, and the appeal was dismissed. The court did not grant leave to appeal, affirming the lower court's decisions. This outcome underscores the importance of stringent scrutiny of evidence, particularly DNA evidence, in ensuring the fairness and reliability of criminal convictions.

Orders