Jetson v The State of Western Australia
[2008] WASCA 251
•28 NOVEMBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JETSON -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 251
CORAM: WHEELER JA
HEARD: 28 NOVEMBER 2008
DELIVERED : 28 NOVEMBER 2008
PUBLISHED : 8 DECEMBER 2008
FILE NO/S: CACR 153 of 2008
BETWEEN: LUKE JAY JETSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :Schoombee DCJ
File No :IND 601 of 2007
Catchwords:
Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr P B Cassidy
Respondent: No appearance
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Middleton v The Queen [2000] WASCA 213
WHEELER JA: These are my reasons for orders made on 28 November refusing leave in relation to both grounds of the proposed appeal, and dismissing the appeal.
The background facts, very briefly, are that the appellant had been charged, in relation to two complainants, of one count of unlawful detention of each complainant and numerous counts of sexual penetration without consent of each complainant. The circumstances were somewhat unusual in each case, in that in each case the appellant was alleged to have represented to the complainant that the complainant was being threatened by others (by "Gypsy Jokers" in relation to one complainant and by a bouncer in the case of the other complainant), and through a series of deceptive representations which do not need to be detailed, had convinced each complainant that it was necessary for her to have sexual relations with the appellant in order to secure protection from those who were threatening her.
So far as the appellant was concerned, he gave no evidence at trial. However, in a videotaped record of interview, which was played to the jury as part of the State case, he denied ever having full sexual intercourse with the first complainant, who I will call "G". He said, in essence, that he had been rather concerned about her behaviour when she was visiting his house. He had gone to bed and was asleep, when he woke to find her attempting to have sexual intercourse with him. She was attempting to place his penis in her vagina. He told police that he had "pre come" on his penis.
Somewhat inconsistently, the cross‑examination of the complainant G appears to have been directed in part to the proposition that sexual intercourse took place, but with her consent.
At trial, there were two items of expert evidence which together form the basis of the grounds of appeal. Mr Webb, the forensic biologist, gave evidence of his analysis of a number of high vaginal and low vaginal swabs and smears. From those taken in the area of the cervix, Mr Webb saw many intact spermatozoa. The quantity of intact spermatozoa led to the smear being graded in a way which he described as follows:
... as far as our grading systems go, that's probably the second highest grading system. In other words, the next highest would be the most we would probably ever see in a smear. (ts 210)
There were fewer in the other smears. The DNA profile of all of those samples matched the DNA profile obtained from the appellant.
The second relevant witness was Dr Hoey. She was a Bachelor of Medicine, a Bachelor of Surgery, and had a Bachelor of Science degree. She was a Fellow of the Royal College of General Practitioners and held a Diploma in Obstetrics and Gynaecology. At the time of giving evidence, she was working in private practice as a general practitioner and also at the Sexual Assault Resource Centre. She had been a doctor since 1990. It was she who had taken the samples from complainant G. She gave evidence of her findings on examination and of the complainant's demeanour.
The contentious part of Dr Hoey's evidence was given in response to the question, "Dr Hoey, are you able to say anything about whether or not there is any literature on whether or not pre‑ejaculate fluid may contain sperm?" The doctor explained what pre‑ejaculate fluid was, namely, a viscous fluid of anything from a few drops up to a millilitre released prior to ejaculation. As to the presence of sperm, her evidence was as follows:
?---I've tried to do a fair bit of research to find out this question which was posed. What I have found is that although accepted teaching and accepted thought has been that pre‑ejaculate may contain sperm, in fact there are very few studies that support that ...
So you were saying about what accepted thinking was. Have you found any studies that contradict that accepted thinking?‑‑‑Yes. There are three studies I was able to find. Two were published in the Lancet in 1992 and another was published in a Journal of Assisted Reproduction in 2004. All the studies are fairly small studies. However, they did challenge the view that there are any significant numbers of sperm of viable sperm in that pre‑ejaculate.
Any by 'viable' what do you mean?---Motile. Intact sperm.
Did you look to see if you could find any studies that supported the thinking up until that point in time?‑‑‑I did. In fact, some of the gentlemen that did these original studies did also, that they looked back to try and find out where this theory originated from. There was a book published by Masters and Johnson who was - in 1966 who was very foremost in that area and then a lot of classical texts which have subsequently taken this on. They actually asked him where he got his evidence but no one could ever find any study that supported it. (ts 188 ‑ 189)
Dr Hoey was then cross‑examined by counsel for the appellant. His cross‑examination involved the size of the sample in the studies concerned, where they were conducted and the types of patients who participated. He cross‑examined Dr Hoey with a view to getting her to agree with the proposition (which it appears that she did) that following full ejaculation, some millions of sperm would be produced and that some would remain in the tubes, and might be secreted with pre‑ejaculate fluid at a later time. He did not object to Dr Hoey's expertise. It appears from the transcript of an earlier trial of the appellant in relation to the same complainant, which was aborted for reasons unrelated to the present appeal, that counsel for the appellant had been given, by the prosecutor, not only a statement from Dr Hoey, but copies of the academic articles to which she referred.
Ground 1
Ground 1 of the appeal reads:
The learned trial judge erred in law and in fact when she allowed into evidence expert opinion, such that there was a miscarriage of justice;
Particulars:
(i)the relevant opinion given was outside the expert's area of expertise;
(ii)there was an inadequate basis for that opinion.
It appears from the submissions in support of the ground that the appellant does not challenge the proposition that the question of the quantity and quality of spermatozoa to be found in pre‑ejaculate fluid is a subject upon which a person without instruction or experience in the area would not be able to form a sound judgment without the assistance of an expert witness. However, it is contended that there was not sufficient information put forward by Dr Hoey to enable the court to properly evaluate the validity of her conclusions (par 20) and that there was nothing adduced by the State that would have enabled her Honour to be satisfied Dr Hoey was sufficiently qualified to give the expert opinion that she did (par 27).
Taking the second matter first, the appellant's case does not attempt to suggest what the relevant area of expertise might be or what qualifications would be required in order to qualify a witness to give evidence in relation to the issue I have identified. It appears to me to be a question for a medical witness. A witness with medical training would, one would expect, be in a position to know what are the highly regarded and reliable peer‑reviewed publications in which to look for accurate information, and would be able to locate relevant information, if any existed, in such articles. Further, one would expect medical training to equip a witness with the skills to be able to understand and evaluate such studies, to the extent that they discussed questions of anatomy and physiology. It may be that there would be witnesses whose qualifications were more impressive than those of Dr Hoey in evaluating articles of the kind to which she referred, but that is not to say that Dr Hoey lacked qualifications.
Further, Dr Hoey's specialist qualifications were in the field of general practice, obstetrics and gynaecology. It would, in my view, be a matter of commonsense that training in these areas would include matters of sexual health generally, such as measures which might promote or avoid conception, and education directed at the avoidance of sexually transmitted disease. The nature and composition of bodily fluids which may be exchanged during the course of sexual contact would be relevant to these areas. That view is confirmed by a perusal of the witness statement of Dr Hoey and the articles enclosed with it. It appears, unfortunately, that counsel preparing the appellant's case did not see fit to read those articles before drafting either the grounds of appeal or the submissions.
The article entitled "Refuting Old Wives' Tales" discusses the appropriate warnings which family planning counsellors would give their clients in order to prevent pregnancy, and in order to avoid the transmission of HIV based upon the study's findings. The article from the Journal of Assisted Reproduction and Genetics contains the observation that classical sexology textbooks caution that it is not impossible for pre‑ejaculatory fluid to contain "some stray sperm cells", and notes also that "sex educators and physicians have adopted these findings and conclusions, and they lecture to students on the risk of an unwanted pregnancy from these drops of fluid that may contain sperm, even if the man does not actually ejaculate". The second article, then, suggests that it is a normal part of the training of medical students, to be given information about the likelihood of pregnancy resulting from pre‑ejaculate fluid and to have discussed with them the reasons why this may or may not occur, while the first of the articles I have mentioned appears to be aimed at practitioners whose practice is likely to include the discussion of family planning with patients, a category which appears to me to include both general practitioners and those trained in obstetrics and gynaecology.
It is probable that because the statements of Dr Hoey and the articles, read in full, were considered to demonstrate that Dr Hoey did possess relevant expertise, counsel for the appellant at trial (who was not counsel who produced the grounds of appeal) chose not to challenge her expertise. This case is analogous, in that respect, with Middleton v The Queen [2000] WASCA 213 ([19] ‑ [22]).
It is not entirely clear what is meant by the proposition in ground 1(ii) that there was "an inadequate basis" for Dr Hoey's opinion. It appears, perhaps, from par 12 of the submissions which notes that Dr Hoey's knowledge was obtained from reading "three studies". If it is suggested that an expert cannot give evidence on a matter derived from the reading of studies dealing with that matter, then that proposition is plainly wrong. In many cases, experts are experts precisely because they are acquainted with the relevant literature, or are in a position to evaluate and comment upon it. If the suggestion is that Dr Hoey's evidence was inadequate because the studies were not adequately explained to the jury, then that proposition also must be rejected. Dr Hoey noted that the studies contradicted what had been "accepted teaching" and that they were all small studies. In cross‑examination, the numbers of those involved in the studies were ascertained, and she agreed with the proposition that, in relation to one study at least, it is a "very, very small sample". She expressed the view that she was "cautious" about them because they were small studies. The appellant does not suggest what else it was that the jury needed in order to be able to evaluate the opinion expressed.
In my view, this ground must fail.
Ground 2
Ground 2 reads:
The learned trial judge erred in fact when she failed in her summing up to adequately express the relevance of a contradiction referred to by the experts such that there was a miscarriage of justice.
The heart of this ground is in pars 30 and 31 of the submissions, it appears. They read:
30.With inadequate explanation, there was an unproved assertion made by Dr Hoey of a fact. Namely, that the concentrated presence of semen in the high cervix indicated a full ejaculation had taken place.
31.As Dr Hoey noted, there were articles that seemed to contradict the 'accepted thinking'. In her summing‑up Her Honour failed to adequately draw the jury's attention to the relevance of such contradiction (ts 369 ‑ 422).
Dr Hoey did not, in fact, make the assertion attributed to her in par 30. Rather, it is an inference which the jury might draw if the jurors accepted both the evidence of Mr Webb as to there being a high concentration of spermatozoa in the smear taken from the area of the cervix, and drew from Dr Hoey's evidence the proposition that a concentration of that kind would not have come from pre‑ejaculate fluid. So far as par 31 is concerned, the suggested direction appears at par 36 and it is submitted that her Honour should have directed the jury "that were they to accept the earlier findings as reported in 'Masters and Johnson', such would support the defence case regarding [the complainant G]'".
That suggested direction would have been factually in error, since it appears that there were no earlier "findings" reported in the text, Masters and Johnson. Rather, there was a suggestion, or an assertion, in the book published by Masters and Johnson, which had been repeated in subsequent texts. So much appears from the evidence of Dr Hoey at page 189 of the transcript.
Dr Hoey was not asked, either in‑chief or in cross‑examination, whether there was any scientific evidence whatever, or even any hypothesis based on a knowledge of human reproductive physiology, which would provide a foundation for the assertion in Masters and Johnson. Again, when the relevant articles are examined, the reason for that is clear. There was no study referred to in Masters and Johnson; it appears to have been no more than an assertion. Personal contact by the author of one of the articles with one of the Masters and Johnson authors revealed that the latter was unable to recall the source, if any, of the assertion. The male reproductive physiology discussed in the articles leads the principal investigator in a study discussed in "Refuting Old Wives' Tale", to comment that "it is easy to wonder why it was believed that pre‑ejaculate would contain sperm in the first place".
Her Honour could not sensibly have directed the jury in terms which invited them to accept an assertion, referred to in passing by a witness, for which there was no evidence. In that connection, it should be noted that counsel for the appellant at trial had asked her Honour to give the jury a particular direction in relation to the evidence of Dr Hoey. It was not a direction of the kind which the appellant's ground 2 contends should have been given. Counsel at trial withdrew his request for the direction sought when it was pointed out that such a direction risked emphasising the apparently contradictory way in which his case was conducted, in that his cross‑examination of the complainant G suggested that sexual intercourse had taken place, but had been consensual, while the videotaped record of interview suggested that there had been no sexual intercourse.
Ground 2 is based upon a factually incorrect premise and therefore cannot succeed.