Gregory John Challenger v The Queen
[2021] VSCA 60
•17 March 2021
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 appeal against the trial judge’s interlocutory decision admitting the evidence: Cope (a pseudonym) v The Queen [2018] VSCA 261.
Following a contested committal proceeding, an indictment was filed in the County Court charging the applicant with one charge of attempted aggravated rape[2] (charge 1) and three charges of aggravated rape[3] (charges 2, 3 and 4). He contested the charges, his trial being conducted throughout April and May 2019.
[2]Crimes Act 1958 s 45(4), as amended by the Crimes (Sexual Offences Act) 1980.
[3]Crimes Act 1958 s 45(3), as amended by the Crimes (Sexual Offences Act) 1980.
The prosecution case at trial relied on both the DNA evidence and the photoboard identification to establish that, having attempted to rape her vaginally (charge 1), the applicant orally raped the complainant and ejaculated into her mouth (charge 2), and was complicit in her vaginal and oral rape by a co-offender (charges 3 and 4).
No part of the defence case challenged SD’s account that she had been assaulted and raped in the manner described. The defence case was that the applicant could not have been the man with the moustache who orally raped her — resulting in his DNA being deposited onto SD’s jumper — because he was not in Lorne on New Year’s Day 1986. He gave evidence that on New Year’s Eve in 1985 he was working as a ‘bar manager’ at a ‘club’ located in a shed where members worked on their motorcycles, and did not go home until ‘late morning’ the next day. Two witnesses, Kevin Robinson and Michael Pender, gave evidence supporting that alibi. Other evidence was led in order to show that the applicant did not have a moustache at the relevant time, and thus could not have been the complainant’s first assailant. With respect to the finding of the applicant’s DNA on SD’s jumper, the defence advanced a contamination hypothesis. The applicant’s case was that some of his clothing had been seized by police in February 1986 as part of an unrelated investigation, and there was a possibility that, as a result of his seized clothing being stored with SD’s clothing, SD’s jumper had become contaminated with his DNA (‘the contamination hypothesis’).
On 16 May 2019, the jury empanelled in the applicant’s trial convicted him of the three charges of aggravated rape (charges 2, 3 and 4), but acquitted him of the attempted aggravated rape (charge 1).[4]
[4]On 26 June 2019, the trial judge sentenced the applicant to seven years’ imprisonment on each charge. Orders for cumulation resulted in a total effective sentence of 10 years’ imprisonment, upon which the judge fixed a non-parole period of seven years.
The applicant now seeks leave to appeal against conviction on two grounds,[5] which contend that the verdicts on charges 2, 3 and 4 are unsafe and unsatisfactory[6] in that they
1. … are unreasonably inconsistent with the verdict of acquittal on charge 1.
2. … cannot be sustained by the evidence consistently with the Crown case.
[5]A third ground, which asserted that the trial judge ‘erred at law in refusing to give an expanded direction on circumstantial evidence’, was abandoned.
[6]A claim that a verdict is unsafe and unsatisfactory invokes s 276(1)(a) of the Criminal Procedure Act 2009, which provides that the Court of Appeal must allow an appeal against conviction if ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’.
In our view, neither ground can be upheld. For the reasons that follow, the application for leave to appeal against conviction must be refused.
The issues in this Court
As we have indicated, the central contention of the applicant’s case in this Court was that the jury could not have excluded contamination as a reasonable hypothesis explaining the presence of the applicant’s DNA on SD’s jumper. In support of that contention, it was argued that the other evidence in the case — that the applicant had no facial hair and was not in Lorne at the relevant time — suggested that the applicant could not have been the man with the moustache who first attacked SD and ejaculated into her mouth. It was also submitted that, given that SD’s evidence was that the man with the moustache committed both the offences founding charges 1 and 2, the acquittal on charge 1 was inconsistent with the verdict of guilty on charge 2.
Before turning to the evidence that might bear on the contamination hypothesis, it is necessary to summarise the evidence of the complainant.
The complainant’s evidence
SD was aged 54 when she gave evidence at trial. She had made a statement to police about the attack on her, which she signed at 2.40 pm on 1 January 1986.
In her evidence-in-chief, SD said that in 1985 and 1986 she was living in Geelong. On New Year’s Eve 1985 she had gone to Lorne with her friend, ‘Maria’, to ‘see the fireworks and listen to the music and join in the festivities’. Just before midnight, SD met a male, ‘Peter’, who went with her and Maria to watch the fireworks. They watched the fireworks at midnight, then SD and Peter went for a walk on the beach, eventually sitting down on a blanket near the breakwater.
Much of SD’s evidence-in-chief thereafter was adduced by the prosecutor reading portions of her statement to her and asking her if the contents were correct. SD agreed that she had said the following:
I turned around and noticed that there were people lying in the sand dunes watching us. I thought it looked like there were three people there. Peter stood up, and told them to ‘Nick off, and mind their own business’ or something like that. They got up then, and came down and stood around us. I saw that there were four of them. We had carried a blanket with us, and were sitting on that. One of them sat down on the blanket, in front of me, and said ‘How about a New Year’s kiss?’. I told him to get lost.
Two of the others then started grabbing at me. I backed up against the stones on the breakwater, and started screaming and yelling. While I was screaming, I could hear Peter yelling out for them to leave me alone. I couldn’t see him, and after that I didn’t see or hear him. One of them, the one with the moustache, then told me to ‘shut up’ or ‘be quiet’ or something like that. Then he hit me, twice, with his closed right fist. The first blow struck me on the right cheek, just below my right eye. The next blow struck me on the right side of my scalp. I felt my skin tear, and I started bleeding. I went hysterical, and started crying.
The one with the moustache then tore my jeans from me, and my underpants came off with the Jeans. He pulled his jeans down to his knees. He tried to insert his penis into my vagina, but I clamped up, and just lay there crying. He couldn’t penetrate my vagina with his penis, so he then told me to ‘suck on this’. He then placed his penis into my mouth, whilst I was still lying on the ground. He was moving it in and out, while he made me suck on it. It seemed that he had his penis in my mouth for a long time. I think it must have been about five or ten minutes, and then he ejaculated semen into my mouth.
After these parts of the statement had been adduced, there was the following passage of evidence:[7]
[7]Emphasis added to this and subsequent extracts.
[PROSECUTOR]: So after he ejaculated semen into your mouth what happened?‑‑‑I was choking, so I, um, spat out the semen onto the left shoulder of my jumper, or my shoulder here.
Can I ask you what sort of jumper was it, what colour it was?‑‑‑Ah, it was a V-neck, I’m sure yellow, um, kind of wool or acrylic knit jumper.
And can you describe it any better, what sort of style it was or size or?‑‑‑Um, just a kind of – a large size, ‘cause I – um, usually wear, um, I’m quite tall so usually wear a men’s size jumper with the longer sleeves, so it was just V-neck with the long sleeves and, um, with the band tied (indistinct) around the bottom, yep.
In that passage I read to you, you’d stated to the police that the man with the moustache then tore your jeans from you and your underpants came off too. You were wearing jeans, were you, too?‑‑‑Ah, yes, denim jeans, yep.
And underpants?‑‑‑And underwear, yep.
Yes, all right. All right. You go on to say in your statement – or sorry, you just said in answer to my question after I read that passage to you that you had spat out the semen onto your jumper. Are you able to say from your memory what part or parts of the jumper you spat it onto?‑‑‑Ah, I spat it onto my left – left shoulder or left part of my chest here.
And how did you feel physically at that time?
HER HONOUR: Sorry to interrupt, just for the purposes of transcript, just indicating, [SD], you’re talking about the front of your sweater towards the area of the chest and shoulder, is that right?‑‑‑Yep.
Thank you?‑‑‑Yeah.
[PROSECUTOR]: Thank you, Your Honour. Obliged. So yes, my question was how were you feeling at that time?‑‑‑Ah, I just – I guess I just shut down, I was in shock and just lying there stiffly. Um, I started to panic when I was, I felt like I was choking and couldn’t breathe.
You go on to say in your statement, ‘They both then pulled me up and picked up the blanket.’ Now, how many men were there in total?---Ah, well there was the two, I thought it – I thought at that point that it was over with. Um, and then the two main offenders, um, raped me at that point.
When you say the two main offenders, they were – do you mean the man with the moustache who was the one who first attacked you?---Yes.
And the one who’d ejaculated in your mouth?---Yes.
And there was another man that you remember?---And then a second one, yep. So the ones who’d grabbed me from the side, yep.
The following narrative from the statement was then adduced:
They both then pulled me up, and picked up the blanket. I was dazed, and trying to see where I was bleeding from. They dragged me along by the arm, I think it was the left arm which they were holding, and took me up to the barbed wire fence, where the dunes start. One of them, or I think it must have been both of them, told me to climb over the barbed wire fence. I told them that I was not going to. They then draped the blanket over the fence, and just dragged me across it. I think I was dragged over it on my back. I remember I tried to grab it with my right hand, and I got scratched on that hand. I don’t remember feeling getting scratched on my back, but I didn’t have any scratches there before, so I must have got them then.
The one with the moustache had hold of my arm, and he dragged me across from the fence, sort of diagonally to near the back. The other one must have carried the blanket, because when we stopped, the one with the moustache threw me down on top of the blanket. Then he held me down. The other one dropped his jeans, and got on top of me. He was trying to enter my vagina with his penis. I started to cry again, and asked them to leave me alone. The one with the moustache told me to ‘Shut up, or he’d hit me again’ or ‘hurt me again’. I’m not sure which it was. The tip of his penis was all that entered my vagina. I was lying there, really stiffly, although I was too scared to do more than that. He couldn’t get his penis all the way into my vagina, so he slid up on top of me more, and pushed his penis into my mouth. He was moving his penis up and down inside my mouth. Suddenly someone shouted, ‘Hey, is everything all right. What’s going on here?’. I looked around, and I saw a male person coming down a walkway about one meter and a half away. I hadn’t seen the walkway before. The person who was on top of me said, ‘Everything’s all right’. I yelled out ‘Yes, there’s something wrong’. The person who was on top of me turned around to look, and I jumped up and ran across to the fence. I climbed over the fence, and another male person was coming up the path. He said, ‘What’s going on, are you all right?’. I said ‘No, I’m not. Get me out of here’.
I started to run down the beach, towards where I’d left my things. This other person ran down just behind me. I saw my jeans, and put them on. I didn’t see my underwear, but it was in the leg of my jeans. I didn’t stop to put them on. The person who was there, then, said ‘Bob down in the shade’, but I was too scared to trust him, so I ran down to the road then ran behind the sand dunes. I turned right onto the road, which was running away from them. I ran for about a hundred metres, and then I saw the caravans across a paddock. I climbed the fence into the paddock, and ran across it, sticking close to the wall. I got to the caravans, and hid behind a car for a moment. I couldn’t see anyone coming, so I got up and walked through the caravan park to the main road. I saw one girl and two guys walking away from me, heading up the main road. I ran and caught up to them, and asked them if they could show me where the police station was. They then walked with me all the way to the police station. I went into the police station, and reported the incident to the man on duty there.
In summary, SD’s evidence was that ‘the man with the moustache’ hit her twice with a closed fist; tore her jeans and underpants off; tried unsuccessfully to penetrate her vaginally with his penis; penetrated her orally with his penis; and ejaculated semen into her mouth. SD said that she then spat the semen onto the front of her jumper ‘towards the area of the chest and shoulder’.
The photoboard identification
It is convenient to turn next to the identification evidence.
As part of the initial investigation of the offences against SD, police made an appeal for information in an article published on 3 January 1986 in the Geelong Advertiser newspaper (Exhibit 2). Based on the description given by SD of the man with the moustache, the article contained a ‘photofit’ image produced by the Police Identification Squad on the previous day (Exhibit 3). (Quite clearly, the man depicted in the photofit image has a prominent moustache.) These efforts, however, produced no possible suspects and the investigation stalled.
Due to the DNA ‘hit’ obtained in 2015, on 26 October 2015 Detective Sergeant Nigel Freebairn, then attached to the Cold Case Sexual Crimes Squad, reactivated the investigation into SD’s rape almost thirty years earlier. As previously mentioned, he arrested the applicant on 9 March 2016, and obtained a buccal swab for the purposes of DNA analysis, which was provided to the Victoria Police Forensic Science Centre on 21 March 2016.
Prior to the applicant’s arrest, however, on 3 March 2016 Detective Senior Constable Phillip Paine showed SD the photoboard containing twelve photographs. The applicant’s photograph — clean-shaven — was photo number ‘5’. In her evidence-in-chief, SD gave the following evidence concerning the photoboard identification:
[PROSECUTOR]: Detective Paine was the man who showed you that folder?---Yes.
Did you recognise anyone in that folder?---Um, yes - - -
Can you tell the jury what happened when you looked at that folder?---Okay. So, um, I just looked across the top row and didn’t recognise anybody, and then I got to No.5 and I knew was one of the two main offenders. So I kept looking across the rest and thought, no, I don’t – I don’t recognise anybody else and came back and just said, um, No.5. So I identified him. He asked me why and I just said because of his eyes, I recognise his eyes.
What was it about his eyes, can you remember?---I don’t know what it is. I just - I know that was one of the two main ones.
Under cross-examination, SD gave the following evidence:
[DEFENCE COUNSEL]: So you have an independent memory of being pulled towards the fence and one of those men was the man with the moustache?---Yes.
Now, with respect to the other man, not the one with the moustache, the other man - - - ? - - - Other one, yep.
- - - you don’t give any description of him, do you, in your statement?---Ah, other than one had a moustache and one didn’t.
All right. So apart from the other man not having a moustache, you can’t say anything else about him in terms of his features, is that what you’re saying?---That’s – yes, that’s right.
So what colour his hair was, what colour his complexion was, how tall he was, etc., etc., you’re unable to say. All you can say is the other man didn’t have a moustache, is that correct?---That’s right, yes.
I want to suggest to you that it appears that the main person, if I can put it, the ringleader in all of this, comes out as the man with the moustache?---Ah, the ringleader I guess is, um, the one who hit me, so yeah, the one with the moustache.
He was the one who what you say you first in your statement identified as having that peculiarity as against the other men, that is that he had a moustache, is that right?---Yes. Yes.
He was the one that was violent to you?---Yes.
He was the one that first tried to rape you?---Yes.
And he was one of the ones that you can remember picking you up and dragging you away?---Yes.
And in that context, can I suggest to you he was the focus of your attention, in that context of hitting you, raping you and being one of the ones pulling you away, he was the focus of your attention?---Yes, for that first part of the – for the first assault, yes.
Later in SD’s cross-examination there was the following:
[DEFENCE COUNSEL]: Certainly No.5 is not a person with the moustache that you identified in the photofit, is that correct?---Ah, that’s correct. It’s not a big – big distinct moustache.
What I want to suggest to you is that you can say unequivocally that No.5 is not the main offender.
HER HONOUR: What do you say about that?---Ah, going by what you’ve just said I guess I’d agree.
The DNA evidence
It is convenient next to consider the DNA evidence, which was crucial in establishing that the applicant orally raped the complainant. Quite clearly, absent the existence of a reasonable hypothesis providing an innocent explanation for the presence of the applicant’s DNA on SD’s jumper — at the location at which she said she had spat her rapist’s ejaculate — the DNA evidence pointed compellingly to his guilt.
We will later summarise the evidence which bore on the collection of SD’s clothing from her after the rape; its storage; and its transfer to the Forensic Science Laboratory (‘FSL’).[8] As will be seen, the evidence suggests that SD’s clothing was taken from her during a medical examination of her by Dr David Fitzgerald at about 11.45 am on 1 January 1986. At that time, a female police officer, Constable Jo Donovan, who was present at the examination (and who also took SD’s statement later that day), placed the clothing into big paper bags which were then sealed. After the medical examination, Constable Donovan gave the sealed paper bags containing the clothing to Detective Tony Warren, who was the officer in charge of the investigation. Detective Warren then secured the sealed paper bags containing the clothing under lock and key in his locker, until transporting the bags to the FSL located in Geelong West the next day, on 2 January 1986. The sealed paper bags containing SD’s clothing were thereafter stored at the FSL in Geelong West until a Crime Scene Services Officer, Terrance Collins, placed the paper bags — 15 in number — into a larger sealed plastic bag and delivered them to the FSL in Spring Street, Melbourne, at 11.00 am on 26 February 1986.
[8]See [35] et seq. below.
John Scheffer
John Scheffer, the Assistant Director of the Victoria Police Forensic Services Department (a successor to the FSL), Biometrics Division, gave evidence. He held a Bachelor of Science and a Master of Science degrees from Monash University, and was an Adjunct Professor at both Deakin and Latrobe Universities. He had worked at the FSL — which had undergone a number of name changes over the years and was now known as the Victoria Police Forensic Services Department — from 1982 until the present. On 1 December 1986, the FSL moved from Spring Street, Melbourne, to Macleod.
Referring to his handwritten notes (Exhibit 7), Mr Scheffer gave evidence that at 2.20 pm on 10 June 1986, he received three sealed plastic bags from the liaison officer at the laboratory, containing items which related to SD’s rape. The first bag contained several items including ‘Item 3’, which was a brown paper bag containing a yellow jumper. On the front and right-hand sleeve there were what appeared to be blood stains. There were no seminal stains on the jumper that were obvious to the naked eye, but a presumptive test for seminal material proved positive in several areas (which were depicted in his notes), including ‘Item 3-6’, which was an area on the front and left shoulder of the jumper. He cut a piece of jumper from that area, placed it into a heat sealed plastic bag, and placed it with a label into the freezer on 16 July 1986 (doing the same with ‘Item 3-5’, an area in the central part of the front of the jumper).
Kate Outteridge
Kate Outteridge, a forensic officer at the Victoria Police Forensic Services Centre, Biological Sciences group, gave evidence. Her roles include testing biological material taken from crime scenes in order to obtain and compare DNA profiles. Much of her evidence was devoted to the science underpinning DNA — supported by a slide presentation, ‘What is DNA?’ (Exhibit 9) — which it is unnecessary to summarise.
In May 2012, there was a ‘cold case’ examination of the samples Mr Scheffer had collected. It rendered a DNA profile, which was then placed on the National DNA Database. Item 3-5, which was a sample taken from an area on the front of SD’s jumper, was then labelled ‘Sample 3-1’; and Item 3-6, which was the sample taken from the front of SD’s jumper on the left upper arm, became ‘Sample 3-3’. Subsequently, a sample of saliva, taken from the applicant in August 2015, rendered a DNA profile that matched the profile put on the National DNA Database in 2012. A further reference sample of DNA was then obtained from the applicant upon his arrest on 9 March 2016.
Later in 2016, Ms Outteridge carried out a DNA analysis, using both the August 2015 sample and the reference sample taken on 9 March 2016, for comparison. With respect to Sample 3-3 — which, as mentioned, was originally Item 3-6 from the front of SD’s jumper on the left upper arm — sperm cells were detected. By an ‘extraction process’, Ms Outteridge separated the sample into a ‘sperm fraction’ and a ‘non-sperm fraction’, the ‘sperm fraction’ sample having some sperm cells in it. In relation to the sperm fraction sample, the statistical weighting was 100 billion times more likely if the applicant was a contributor to the DNA than if he was not. Thus, Ms Outteridge’s evidence included the following:
[PROSECUTOR]: [I]f I can move to your statement - your first statement, the table detailing the results, which includes ‘Statistical weighting DNA evidence in relation to sperm fraction is 100 billion times more likely if Gregory Challenger is a contributor to the DNA’. That was done … both in relation to items 3-1 and 3-3; is that correct?---Yes.
Okay. So, could you summarise the results which are set out on that page please?---Do you want me to summarise the biological testing or the DNA testing?
Both?---Certainly. For sample 3-1, um, a – spermatozoa were detected on the microscope slide that was prepared, ah, and spermatozoa are a component of semen. Um, the material was analysed for DNA and two different fractions prepared: the sperm fraction and the non-sperm fraction. The sperm fraction gave a mixed DNA profile with a minimum number of contributors as two. When comparing this to the two reference samples, that is [SD] and Gregory Challenger, [SD] was excluded as a contributor.
…
Yes?---And, ah, Gregory Challenger was not excluded and a likelihood ratio was calculated. The DNA evidence is 100 billion times more likely if Gregory Challenger is a contributor to the DNA compared to if he was not. Um, with regard to the non-sperm fraction, a mixed DNA profile with a minimum number of contributors of three was detected and, ah, this including DNA types that could be attributed to [SD]. Um, it was assumed that she was a contributor to the sample because I had information that it was her jumper and also her DNA types were represented throughout the profile. Ah, this was then compared to the reference sample from Gregory Challenger and the DNA evidence is more likely if Gregory Challenger is not a contributor to the DNA. With regard to sample 3-3, um, there were spermatozoa detected on a microscope slide prepared. Um, DNA analysis was carried out. Ah, for the – the sperm fraction, a mixed DNA profile with a minimum number of two contributors, ah, was detected. The comparison of the reference samples, um, the DNA evidence is more likely if [SD] is not a contributor to the DNA, and the DNA evidence is 100 billion times more likely if Gregory Challenger is a contributor to the DNA compared to if he were not. With regard to the non-sperm fraction of that sample, it gave a mixed DNA profile with a minimum number of two contributors, um, including [SD], because there were DNA types that could be attributed to her, therefore she was assumed as a contributor to the DNA, and Gregory Challenger was excluded, ah, as a contributor to that fraction.
…
Summarising your results, in relation to the sperm fraction, according to what you said, as to whether or not Gregory Challenger is a contributor to the DNA in the mixed profiled in the sperm fraction of each sample, in verbal terms, what do you say?---So the likelihood ratio, um, for that particular comparison was 100 billion and the verbal equivalent is … extremely strong support, so if I could put it in terms, um, the DNA evidence, ah, from the sample provides extremely strong support for the proposition that Gregory Challenger is a contributor to the DNA compared to if he was not a contributor to the DNA.
Later, Ms Outteridge gave the following evidence:
[PROSECUTOR]: In terms of your examination of those fractions and samples, what do you say about whether or not they were left by the deposit of semen?---Given the – the biological results that were obtained and the – I suppose the location of where they were, being potentially on the front of her jumper, gives an indication that it could be from semen. Sperm cells are very characteristic for semen and it gives an indication that that semen is present.
And could that DNA profile have come from something other than sperm or semen?---It is possible.
In cross-examination, as the following exchange shows, counsel for the applicant sought to establish that Ms Outteridge could not be certain that the DNA located in the sample 3-3 sperm fraction actually came from sperm:
[DEFENCE COUNSEL]: And the fact is that without doing some fairly specific testing you can’t be 100 per cent sure that the DNA profile in this case, from Mr Challenger, came from sperm?---That’s right. Because the biological testing is separate from the DNA testing, the DNA testing is just looking at DNA. It doesn’t give an indication of the specific biological source. However, the biological testing can give you information relating to the possible source of the DNA.
Okay. So that statistic that you – or the likelihood ratio that you’ve given to the jury, that is that it’s 100 billion times more likely that Mr Challenger is a contributor to the DNA profile than if it’s a random person in the community, that only relates to the DNA profile itself?---Yes. That’s right, yes.
Am I correct in saying that that really can be described as sub-source, if you like? If you’re thinking about a - the role of a scientist and the framework that you work on, that is one of the - that could be called a sub-source result?---That’s right.
Or that’s a sub-source level?---Yes.
Yes. In terms of the framework, the next would be – so you’ve got sub-source and you’ve got source?---Yes.
Then you’ve got activity?---Yes.
And then you’ve got the ultimate conclusion?---Yes.
So to go to the next one, source, that would be the source of the DNA profile, so the biological source of where it came from?---Yes.
So you can’t say, in this case, that that came from sperm? You couldn’t be 100 per cent sure about that?---No, I can’t be 100 per cent sure of that.
You might be fairly sure, but you just can’t be absolutely positive?---That’s right, yes.
Evidence bearing on the contamination hypothesis
There were a number of witnesses whose evidence might have borne on the contamination hypothesis.
Dr David Fitzgerald
Dr David Fitzgerald, a medical practitioner, gave evidence that he had worked as a forensic medical practitioner for Victoria Police in 1986, and in that role examined victims of sexual assault. He said that he did not remember the complainant, SD, but, on 1 January 1986, had made a statement about his examination of her, that examination having occurred that day at 11.45 am. Constable Jo Donovan was present during the examination. Swabs and slides were prepared from SD’s mouth, anus and vagina, those specimens being handed to Detective Warren. Dr Fitzgerald had no recollection of collecting SD’s clothes, and had made no note that he had done so.
Constable Jo Donovan (Taylor)
Jo Taylor (formerly Donovan) gave evidence that in 1986 she performed general duties as a police officer, but was sometimes called in to assist the Community Policing Squad, which dealt with ‘rape victims, battered women, children, that sort of thing’. She took a statement from SD, which she witnessed at 2.40 pm on 1 January 1986. Although she does not now remember it, Ms Taylor was present when Dr Fitzgerald — whom she knew as the ‘police surgeon’ — examined SD. Her evidence was that, ‘generally speaking’, clothing worn by a rape victim such as SD would have been placed into sealed ‘big paper bags’ and handed to her. She then ‘would have either conveyed it to the Forensic Science Laboratory or to the detective in charge’. The ‘practice’ she adopted ‘would have been that if the investigator had been there he’d take possession of … clothing and the other items after the examination’.
Detective Tony Warren
Thomas Anthony (‘Tony’) Warren in 1986 was a Detective with the Geelong Criminal Investigation Branch, and was involved in investigating SD’s rape. The ‘police lady’, Jo Donovan, stayed with SD during her examination by the ‘police surgeon’, Dr Fitzgerald. He recollected that ‘we just waited around and were given the exhibits and samples by the police surgeon after the exam had been completed’. The exhibits ‘would have been all her [SD’s] clothing, and there would have been swabs and blood samples’, and he ‘would take possession of them immediately after the examination’. All exhibits were ‘put into heavy paper bags’ — ‘each item went into a separate bag’ — ‘that were sealed and dated and itemised as to what the contents were, et cetera’.
Former Detective Warren gave the following evidence of particular relevance to the risk of contamination:
[PROSECUTOR]: What level of care, those days, and in fact in your time as a police officer, did you apply to that activity of collecting, bagging, sealing and transporting items that became exhibits?---I took the utmost care at all times. It’s, um - exhibit continuity and maintenance is very, very important. Even prior to DNA there were still other, um, forensic tests that could be conducted that would certainly assist in the investigation.
So if, in this case, you received the items, whatever they were, from Dr Fitzgerald, after the examination on 1 January 1986, what happened to those items?---Well I’d put them in the bags, seal them in the bags, sign it, detail the contents, and then I maintained those in my locker overnight, ‘cause there was – forensic science wasn’t open on New Year’s Day.
So your locker being at the police station?---At the police station, yes. We all had our own lockable lockers.
And it was locked?---It was, yes.
By reference to his diary, Mr Warren was able to say that he delivered the exhibits — including SD’s clothing — to the Forensic Science Laboratory (‘FSL’) in West Geelong at 10.00 am the next day, 2 January 1986.
Terrance Collins
Terrance Collins, a retired police officer, was a Crime Scene Services Officer at Geelong between 1983 and 2007. His evidence included that the liaison register kept by the FSL in Spring Street, Melbourne, indicated that he had transported a number of exhibits relating to SD’s rape to Melbourne, and lodged them at the FSL in Spring Street at 11.00 am on 26 February 1986. There were 15 items transported, including a paper bag containing a jumper. His evidence was that, ‘Normal procedure would be to bag each individual item into a paper exhibit bag, and label such bag as what item number it would be given’. He would have transported those 15 individually bagged items by placing them into a larger plastic bag, which was sealed.
Paul Hennessy
Paul Hennessy was formerly a policeman. He gave evidence that he arrested the applicant on 17 February 1986 in relation to ‘an alleged theft from a police car and some criminal damage’, the theft being of flashing blue lights attached to the roof of a police vehicle. When he was arrested, two photographs of the applicant — one facing forward and one in profile — were taken (Exhibit 12). (The photographs showed the applicant to be clean-shaven.)
In his evidence-in-chief, Mr Hennessy asserted unequivocally that he did not seize clothing from the applicant. His evidence was:
[PROSECUTOR]: As I say the first matter relevant to both your investigation and this case was the taking of the photograph on 17 February 1986. The second matter I want to ask you about is did you have occasion on his arrest to either obtain any property from him, clothing or items or anything like that, or obtain a forensic sample from him such as a saliva sample, a blood sample or anything like that?---No, did not seize any items of his or obtain any samples as described.
So the only forensic examination which was usually done for this and other property type offences was fingerprinting, is that correct?---That’s correct.
Under cross-examination, Mr Hennessy said — relying on his recollection 33 years later, unaided by notes — that he had arrested the applicant ‘at his house’. There was then the following passage of evidence:
[DEFENCE COUNSEL]: So with respect to his house what I suggest to you is that you and the other police officer did a search of his property?---That is quite possible.
I want to suggest to you you have a recollection of doing a search of his property?---I do have a recollection of his – doing a search of his bedroom.
...
Now, you say that you didn’t seize any items, but you’ve got no document that you can go to to see if you seized any items, is that correct?---It would only be the brief of evidence. No, I don’t.
So you don’t dispute the fact that you could have seized items from his house to – in connection with the investigation?---All I can say is I have no recollection of seizing anything.
All right, but you have a recollection of searching his property, his bedroom, is that right?---Yes.
With respect to whether you took property, the best you can say is you have no recollection of it?---That is correct, but what I would have been looking for would’ve been items such as the blue lights from the police vehicle.
So if I suggested to you you took a jumper and some sand shoes from his bedroom, runners from his bedroom, what you’d say is, ‘I have no recollection of that’?---I have no recollection of taking those items.
And you don’t dispute, though, that ultimately, you would need recourse to documents that you had at the time, as to whether or not any items were taken, such as that?---If items were taken, they would’ve been recorded in the property book.
All right, and that property book has been destroyed?---I – I wouldn’t know where that property book would be.
And what you’d do with that jumper and sand shoes, or runners, is enter them in the property book, is that correct?---That’s correct.
Are you able to say whether you would enter them into a property book at Geelong West, or Geelong North, or Geelong police station, or - - - ?---It would’ve been at the Geelong CIB office.
Could you have gone at some stage and taken this property to Geelong West?---Geelong West at that – I think I understand what you say – Geelong West was the forensic office. They would’ve been conveyed there, correct, if I had have seized items.
And you don’t know if you seized items?---Well, my recollection is I did not.
In re-examination, Mr Hennessy said that, had he seized any items, they would have been placed into paper bags. His evidence was as follows:
[PROSECUTOR]: If any items had been taken from his bedroom and by you, how would they have been handled and stored?---They would’ve been conveyed back to the Geelong CIB office and entered into the property book, and secured in the property room until – unless they were exhibited to Mr Challenger during the interview process.
Would they have been separated? In other words, were they all in one bag, or - - - ?---They would have been separated.
And what would they be put into?---Usually paper bags, at that time.
The applicant
The applicant gave evidence that police seized a jumper and sand shoes from him on 17 February 1986. Having been shown the photographs of him taken by police that day, his evidence continued:
[DEFENCE COUNSEL]: Is that a photograph of you?---That’s a photograph of me, yes.
Just in relation to that matter are you able to say – Mr Hennessy said you were arrested. What’s your memory of that contact with Mr Hennessy on that day?---Um, I was not arrested at home as he stated, I was arrested in the street.
Where did you go after that?---I went to the detectives area, which would be the CIB, is it? I’m not 100 per cent sure, is it called CIB now? Um, which is up the road here behind the Matthew Flinders Primary School at that stage. Um, I was taken – I was interviewed there. I was taken from there to my house in Melbourne Road where they searched, um, my bedroom and they searched a small shed outside in the backyard.
Was anything taken by the police?---I had a jumper and some sandshoes taken.
In terms of those items, the jumper and the sandshoes, did you ever get them back?---No, I didn’t.
How do you remember that those items were taken?---Well, I only ever had one pair of sandshoes, so that’s how I know about that, and with the jumper I mean I was just a guy that just virtually wore very limited clothing I suppose you would call it.
The applicant’s submissions
Counsel for the applicant put ground 2 at the forefront of his submissions, since the principal contentions underpinning ground 2 to a large extent also underpinned the inconsistency of verdicts asserted in the first ground.
The prosecution case, counsel submitted, relied on two separate pieces of identification evidence: first, the DNA evidence; and, secondly, the photoboard identification. Very clearly, on the prosecution case the DNA evidence was said to have come from the first assailant — the man with the moustache — after he ejaculated into SD’s mouth and she spat the ejaculate onto her jumper.
Significantly, however, the effect of SD’s evidence was that the person she identified from the photoboard as one of her assailants — she had selected the applicant’s photograph — was not the man with the moustache who first attacked her, and whose ejaculate she spat onto her jumper. Given that the prosecution did not rely on complicity principles, the applicant could not be fixed with criminal liability on the basis that he was the second attacker.
Counsel for the applicant submitted that the defence did not take issue with the fact that somebody had offended against her in the way SD described. But it could not have been the applicant, since he was not at Lorne and so could not have been involved. The applicant gave evidence that he had never had a moustache and produced photographs that had been taken at a time proximate to the offending that depicted him as clean-shaven. Further, Kevin Robinson, who was called in the defence case, also gave evidence that the applicant had never had a moustache. He too produced photographs that had been taken at a time proximate to the offending that depicted the applicant as clean-shaven. Moreover, both Kevin Robinson and Michael Pender supported the applicant’s alibi.
The applicant’s counsel submitted that the jury could not be satisfied beyond reasonable doubt that the applicant’s DNA — extracted from the sperm fraction sample 3-3 — was extracted from semen. Indeed, there was a reasonable possibility that the DNA came from a source other than semen, and that the applicant’s DNA on the jumper was the result of contamination resulting from exhibits having been ‘intermingled’ at the FSL in Geelong West. A jumper and sand shoes belonging to the applicant were seized from the applicant on 17 February 1986. Presumably they were stored at the FSL where SD’s clothing was stored until taken to Melbourne on 26 February 1986. In short, counsel for the applicant contended that the jury could not have excluded contamination as a reasonable hypothesis explaining the applicant’s DNA being found on SD’s jumper.
With respect to the first ground, counsel submitted that the acquittal of attempted aggravated rape raises two possibilities: first, that the jury were not satisfied that the applicant was the initial assailant; or, secondly, that the jury were not satisfied that the conduct alleged amounted to an attempt to vaginally rape SD. As to the first possibility, counsel submitted that the evidence of identity was the same for both charge 1 and charge 2, and the prosecution alleged that the man with the moustache was guilty of both. On that basis, the guilty verdict on the second charge cannot be reconciled with the not guilty verdict on the first. As to the second possibility, failure to find that the conduct alleged amounted to an attempt must mean that the jury rejected SD’s evidence. Whether the first or second possibility is the explanation for the different verdicts, however, there is unacceptable inconsistency between them.
Discussion
The applicant did not dispute that his DNA was on the jumper that had been worn by SD when she was raped. That is not surprising, given that the results of DNA testing left very little or no doubt that his DNA had been deposited on the jumper. Thus, it was 100 billion times more likely if the applicant was a contributor to the DNA extracted from both sample 3-3 (located on the front, left upper arm of SD’s jumper, originally Item 3-6) and sample 3-1 (located in an area on the front of SD’s jumper, towards the centre, originally Item 3-5) than if he was not.
In an endeavour to explain how his DNA might have come to be on SD’s jumper, the applicant advanced the contamination hypothesis, which involved at least five steps.
First, the applicant asserted that a jumper and some sand shoes belonging to him were seized from his home by the police officer, Paul Hennessy, on 17 February 1986 (Mr Hennessy’s recollection being, of course, that he did not seize these items). Secondly, the applicant relied on Mr Hennessy’s evidence that, had he seized them, the items would have been conveyed to the FSL at Geelong West. (Mr Hennessy also said that the clothing would have been put into paper bags.) Thirdly, the applicant pointed to the fact that Detective Warren had delivered SD’s clothing to the FSL in Geelong West on 2 January 1986, where it remained until taken to the FSL in Spring Street, Melbourne, by the Crime Scene Services Officer, Terrance Collins, on 26 February 1986. (Detective Warren gave evidence that the clothing would have been placed into ‘sealed’ paper bags.) Fourthly, by some mechanism left unexplained, DNA from the applicant’s clothing must have been deposited onto SD’s clothing — contained within sealed paper bags — whilst both sets of clothing were being held at the FSL in Geelong West. Fifthly, given the alibi evidence, and the evidence that the applicant did not have a moustache (and so could not have been the first assailant who ejaculated into SD’s mouth), the only rational explanation for the applicant’s DNA being on SD’s jumper is contamination at the FSL in Geelong West.
We consider the contamination hypothesis to be wholly implausible. In our opinion, bearing in mind the onus of proof, and properly applying the criminal standard, the jury were well-justified in rejecting it.
It will be remembered that Mr Hennessy’s evidence was that if he had searched the applicant’s bedroom he ‘would have been looking for … items such as the blue lights from the police vehicle’; but that if — contrary to his recollection — he had seized any clothing from the applicant, it would have been placed in big paper bags prior to being delivered to the FSL at Geelong West. Further, it seems clear that, after it was taken from her in the course of Dr Fitzgerald’s medical examination, SD’s clothing was placed into big, sealed paper bags, before being delivered to the FSL in Geelong West by Detective Warren on 2 January 1986. Indeed, when Mr Collins took it from Geelong West to the FSL in Melbourne on 26 February 1986, SD’s clothing — including her jumper — was contained within large paper bags (which he put into a larger, sealed plastic bag for transportation). Hence, even if there were evidence that the applicant’s and SD’s clothing were stored in proximity to each other at the FSL in Geelong West for less than a fortnight — there was none — no attempt was made to explain a possible means by which DNA from the applicant’s clothing within one paper bag might escape and thereafter be transferred onto SD’s jumper within another sealed paper bag.
Moreover, we consider that the jury were entitled to be satisfied beyond reasonable doubt that the DNA from the sperm fraction sample 3-3 on SD’s jumper — which was at the location on her jumper where SD said she spat her rapist’s ejaculate — came from semen. In order to reach that conclusion, the jury could properly have followed the steps urged by the prosecution, which included:
· first, SD described the mechanism by which semen was deposited onto the front left shoulder area of her jumper;
· secondly, semen was found on the front left shoulder area of the jumper;
· thirdly, sperm was located in a sample taken from the area where semen was located;
· fourthly, the sample was separated into a sperm fraction and a non-sperm fraction;
· fourthly, the applicant’s DNA was found in the sperm fraction sample; and
· fifthly, Ms Outteridge’s opinion was that the DNA profile detected was consistent with having come from sperm.
As to the fifth step, it is to be noted that although Ms Outteridge gave evidence that it was ‘possible’ that the relevant DNA profile — located at the precise area where SD said she spat the ejaculate — came from ‘something other than sperm or semen’, Ms Outteridge made it clear that ‘sperm cells are very characteristic for semen and it gives an indication that that [sic] semen is present’.
Self-evidently, if the jury concluded beyond reasonable doubt — as we consider they were entitled to — that the DNA extracted from SD’s jumper came from semen, the contamination hypothesis completely evaporated.
In our opinion, satisfaction that the applicant’s DNA was extracted from semen in the sperm fraction sample 3-3 almost irresistibly compelled the conclusion that he was the first assailant who had raped SD orally, and whose ejaculate she had spat onto her jumper. Certainly, the jury were entitled to draw that inference beyond reasonable doubt.
Once the jury were satisfied beyond reasonable doubt by the DNA evidence that the applicant was the first assailant who had raped SD orally, it necessarily follows that they were entitled to be satisfied beyond reasonable doubt that the alibi evidence was not reliable. Furthermore, the jury’s acceptance of the objective scientific evidence establishing the applicant’s participation in the offending rendered SD’s evidence that her first attacker had a moustache to be something of a distraction. Indeed, acceptance of the DNA evidence meant that it would have been unnecessary for the jury to determine whether for some reason SD was mistaken about the first man having a moustache; or, alternatively, examine whether there was some reason to doubt the evidence that the applicant did not have a moustache.
Having examined the record of the whole of the trial, none of the suggested inconsistencies, discrepancies or inadequacies urged by the applicant’s counsel persuade us that the jury, acting rationally, ought to have entertained a reasonable doubt as to the applicant’s guilt.[9] To the contrary, as we have endeavoured to explain, the DNA evidence was compelling. Ground 2 must therefore fail.
[9]M v The Queen (1994) 181 CLR 487, 493-4; Pell v The Queen (2020) 376 ALR 478, 486 [39].
Turning to the first ground, which contends that the verdicts are inconsistent, we consider that it must also fail.
In MacKenzie, Gaudron, Gummow and Kirby JJ distilled the learning on inconsistent verdicts into six convenient propositions.[10] Drawing on the six McKenzie propositions, it is sufficient for present purposes to observe that the obligation of establishing inconsistency between verdicts rests with the applicant. Given that the supposed inconsistency arises on the jury’s verdicts on different charges in the indictment, the applicable test is one of logic and reasonableness. If there is a proper way in which the verdicts may be reconciled, and there is some evidence to support the verdicts said to be inconsistent, it is not the role of an appellate court to substitute its own opinion of the facts for one which was open to the jury. It must be borne in mind that the jury may simply have followed the judge’s instruction to consider each charge separately; or, alternatively, this court might conclude that the jury took a ‘merciful’ view of the facts upon a charge.
[10]MacKenzie v The Queen (1996) 190 CLR 348, 366-9. See also MFA v The Queen (2002) 213 CLR 606 (‘MFA’).
At the risk of repetition, the DNA evidence supporting charge 2 was compelling. That being so, we do not consider that the acquittal on charge 1 necessarily indicates that SD’s evidence was disbelieved. It may simply indicate that the jury took an appropriately cautious approach to her evidence, in which case, the claim of unacceptable inconsistency cannot be upheld.
As Gleeson CJ, Hayne and Callinan JJ explained in MFA:[11]
… A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.
[11]MFA, 617 [34] (Gleeson CJ, Hayne and Callinan JJ).
In the circumstances, we think it likely that the jury adopted a ‘cautious approach to the discharge of a heavy responsibility’. Thus, we are far from persuaded that the verdict of acquittal on charge 1 establishes that the guilty verdicts on any of charges 2, 3 or 4 are an affront to logic or reasonableness.
Conclusion
For these reasons, we consider that neither ground has substance.
The application for leave to appeal against conviction must be refused.
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