KWARAMBA v The State of Western Australia
[2012] WASCA 101
•4 MAY 2012
KWARAMBA -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 101
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASCA 101 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:197/2011 | 27 MARCH 2012 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 4/05/12 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| D | |||
| PDF Version |
| Parties: | DANAI DEVON KWARAMBA THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Application for leave to appeal conviction Aggravated sexual penetration without consent Attempted aggravated sexual penetration without consent Deprivation of liberty Whether trial judge failed to direct the jury as to forensic evidence and onus of proof |
Legislation: | Criminal Appeals Act 2004 (WA), s 27(2), s 27(3) |
Case References: | Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 Steel v The State of Western Australia [2010] WASCA 118 The State of Western Australia v Pollock [2009] WASCA 96 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KWARAMBA -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 101 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 560 of 2011
Catchwords:
Criminal law - Application for leave to appeal conviction - Aggravated sexual penetration without consent - Attempted aggravated sexual penetration without consent - Deprivation of liberty - Whether trial judge failed to direct the jury as to forensic evidence and onus of proof
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Legislation:
Criminal Appeals Act 2004 (WA), s 27(2), s 27(3)
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : No appearance
Solicitors:
Appellant : Marshall Legal
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Steel v The State of Western Australia [2010] WASCA 118
The State of Western Australia v Pollock [2009] WASCA 96
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1 McLURE P: I agree with Mazza JA.
2 BUSS JA: I agree with Mazza JA.
3 MAZZA JA: The appellant was tried in the District Court before Stevenson DCJ and a jury on an indictment alleging five counts of aggravated sexual penetration without consent, one count of attempted aggravated sexual penetration without consent and one count of deprivation of liberty. On 20 October 2011, he was convicted as charged. Later, on 18 November 2011, he was sentenced to a total effective term of 5 years' immediate imprisonment. The appellant now seeks leave to appeal against these convictions.
The prosecution case
4 In respect of all the counts on the indictment, the complainant was the appellant's former de facto partner.
5 The complainant and the appellant lived in a de facto relationship for approximately three years. The relationship broke up in June 2010 and the appellant moved out of the unit in which they had been living in Como: ts 53.
6 After they broke up, the complainant and the appellant kept in contact with each other and in about late October 2010, he moved back into the unit on the basis that they were 'just … friends': ts 53.
7 After the appellant moved back into the Como premises, he and the complainant engaged in consensual sexual activity on an apparently regular basis.
8 On the evening of 9 November 2010, the complainant went to bed between 10.30 pm and 11 pm. She testified that the appellant woke her up and asked her for sex. She refused: ts 56. The complainant said that the appellant then choked her, dragged her off the bed and hit her to the side of the head with a clenched fist. While on the bedroom floor, he inserted his penis into her mouth: ts 57 (count 1).
9 The complainant then got back onto the bed, where the appellant lay next to her and again demanded sex. Without the complainant's consent, he inserted his penis into her vagina. While he was on top of her, he choked her and hit her with a clenched fist to her head: ts 58 (count 2).
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10 Not long after the commission of count 2, the appellant, once again without the complainant's consent, inserted his penis into her vagina: ts 60 (count 3).
11 After the commission of count 3, the complainant and the appellant were lying together on the bed. The appellant told the complainant that he wanted to have sex again. The complainant told him that she was exhausted. Ignoring her protests, the appellant again inserted his penis into her vagina. The complainant said that the appellant choked her while engaging in sexual intercourse: ts 62 (count 4).
12 Shortly after committing count 4, the appellant, without the complainant's consent, inserted his penis into her vagina: ts 63 (count 5).
13 The appellant then went into the lounge room to look for some cigarettes, leaving the complainant in the bedroom. He told her that she was not allowed to leave the bedroom: ts 63. It is from this point that the State alleged that the appellant unlawfully detained the complainant: ts 43 (count 7).
14 Despite the appellant's order, the complainant got dressed, left the bedroom and went into the lounge room. The appellant pulled her hair and pushed her against a wall. He then grabbed her wrists, kicked her back into the bedroom and told her to stay on the bed. The appellant left the room to smoke a cigarette.
15 While he was away, the complainant sent text messages to her brother and sister. Amongst the messages she sent to her sister was one which read, 'Call the cops to my house. [The appellant] is tryin' [sic] to kill me': ts 67, exhibit 1.
16 When the appellant returned to the bedroom, he told the complainant to remove her clothes and to take the bedding off the bed. He then hit the complainant in the face with his fist and attempted to put his penis inside her vagina: ts 73 (count 6).
17 At about 4.30 am on 10 November 2010, the police attended the house and after resistance from the appellant, eventually entered it. When the police officers entered the unit, they found that the complainant was naked except for a sheet that was wrapped around her. She was described as, 'quite distressed and gasping for breath': ts 135.
18 The complainant was taken by ambulance to hospital where she received medical treatment. While in the ambulance, she complained to a
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- police officer that she had been sexually assaulted by the appellant: ts 145. Later, commencing at 10.45 am and then over several hours, she was examined by Dr Kelly, a doctor employed by the Sexual Assault Resource Centre: ts 152. She noted injuries consistent with the complainant's allegations that she had been punched and choked. She also took a series of swabs and smears from the complainant's genital area.
Dr Broom's evidence
19 The forensic samples taken by Dr Kelly from the complainant were analysed by a forensic scientist, Dr Annette Broom.
20 Her evidence was not materially challenged in cross-examination.
21 Dr Broom testified that she microscopically examined a number of swabs and smears for the presence of spermatozoa. She said that spermatozoa was observed on swabs and smears taken from the complainant's vulva, labia, low vagina, high vagina, endocervical area and perineum, as well as from a vaginal swab taken by a speculum: ts 112 - 113.
22 Dr Broom extracted DNA from sperm cells on the labial and high vaginal swabs which matched a reference sample taken from the appellant: ts 114. She said that the probability of finding his profile, if the sperm cells had come from someone other than and unrelated to the appellant, was less than one in ten billion: ts 114.
23 Dr Broom testified that intact sperm cells, consisting of a head and tail, are usually seen 'for a short period after intercourse': ts 116. Thereafter, the tail tends to 'drop off after a certain amount of time and so then you would just see … [t]he spermatozoa head on the slide': ts 115 - 116.
24 Of the samples mentioned earlier, Dr Broom said that intact spermatozoa were seen on the labial, low vaginal, high vaginal, endocervical and perineal smears. The vaginal speculum smear revealed heads only: ts 116. Dr Broom said that, based on her examination of scientific papers and speaking generally, intact sperm would be seen in the cervix for probably greater than one day, the vagina for one to three days, in the vulval area for on average less than 16 hours and the anus for less than five hours: ts 116.
The defence case
25 The appellant testified at trial.
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26 He said that on the night of 9 November 2010, he and the complainant argued after he accused her of withdrawing money from his bank account without his authority. According to the appellant, the complainant told him that he was 'fucking bipolar', after which he 'snapped' and hit her four times: ts 175. He said that he then 'walked out': ts 175.
27 The appellant denied having any sexual contact with the complainant on the night in question, but said that he had consensual sex with her 'the day before': ts 176. He said that after they had broken up and he moved back in with her, they frequently engaged in consensual sexual behaviour on an almost daily basis: ts 176.
28 The appellant said that when the police arrived, he did not hear them call out, 'Police, open the door' because he had his iPod in his ears, but he agreed he heard banging on the door: ts 178 - 179.
29 The State did not challenge the appellant's evidence that he had consensual sexual intercourse with the complainant, as the prosecutor put it, on 'the night before this incident': ts 181.
30 It is apparent that the jury, by its verdict, was satisfied beyond reasonable doubt that the appellant's denials of having sexual intercourse with the complainant on the night in question were false.
His Honour's summing up
31 His Honour briefly but succinctly referred to the evidence.
32 So far as Dr Broom's evidence is concerned, his Honour fairly summarised it, including her evidence as to the presence of spermatozoa heads on the speculum smear. He made no comment about Dr Broom's evidence, apart from observing, in respect of the DNA probability calculation, that:
In this case you should not be concerned about probabilities because the evidence of the accused is that he had sexual relations with her the evening before so it's not going to make much difference to your deliberations I would suggest: ts 211.
33 In the course of the summing up, his Honour made numerous correct references to the burden of proof.
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34 His Honour directed the jury at the outset of the summing up 'that because this is a criminal trial, the accused person does not have to prove anything': ts 197.
35 Soon after, he instructed the jury that the burden of proving each count was on the State: ts 201. He told the jury that, notwithstanding the appellant's election to give evidence, the onus of proof was on the State. He then gave a direction in accordance with Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507. In the course of giving that direction, his Honour said:
It is important that you do remember that the question you must consider is whether, on all the evidence before you, the State has proved the count that you are considering beyond reasonable doubt: ts 202.
36 His Honour then directed the jury as to the elements of the offences alleged against the appellant. In doing so, he provided the jury with a document entitled 'Jury aid - elements of alleged offences'. The preamble to that document states:
To prove that the accused is guilty of the alleged offence that you are considering the State must prove each of the following elements beyond reasonable doubt.
37 During the course of his oral instructions as to the elements of the offences, his Honour said:
If you are not satisfied beyond reasonable doubt in respect of any of the elements or parts that constitute the alleged offence then the State will not have proved that offence beyond reasonable doubt and your verdict will be one of not guilty … : ts 204.
38 In the course of instructing the jury about the element of consent, his Honour gave the direction which is challenged in ground 2.
Proposed grounds of appeal
39 The appellant's proposed grounds of appeal are as follows:
Ground 1
1. There was a miscarriage of justice when the learned trial Judge failed to effectively direct the jury regarding the exculpatory nature of the 'DNA evidence';
Particulars
- 1.1 The DNA evidence, as a whole, was equivocal as to when sexual intercourse occurred;
1.2 The DNA evidence, to some extent, supported the testimony of the Appellant.
- Ground 2
2. In relation to Counts 2, 3, 4 and 5 (offences of sexual penetration), there was a miscarriage of justice when His Honour failed to effectively direct the jury that they needed to be satisfied beyond reasonable doubt the complainant was not consenting (ts 206B).
40 Leave to appeal is required in respect of each of the grounds of appeal. Leave cannot be granted unless the ground has a reasonable prospect of succeeding: s 27(2) Criminal Appeals Act2004 (WA). If neither ground reaches this threshold, the appeal is taken to be dismissed: s 27(3) of the Criminal Appeals Act.
41 Neither ground, as it should, precisely identifies the error allegedly made by his Honour.
42 Counsel for the appellant, in oral submissions, had difficulty articulating the precise nature of the error alleged in ground 1. What emerged is that, although the ground refers to the DNA evidence, the ground in truth was not about this evidence. The point that the appellant wished to make concerned the evidence Dr Broom gave about how long after sexual intercourse intact spermatozoa last: appeal ts 7. Counsel asserted that his Honour should have instructed the jury that the presence of spermatozoa heads on the vaginal swab taken by the speculum did not necessarily preclude the appellant's case that he had engaged in consensual sexual intercourse the day before the alleged offences.
43 The second ground of appeal is to be taken as alleging, in effect, that his Honour reversed the onus of proof when he said to the jury:
So you need to determine for yourselves the circumstances in which the penetration occurred to determine whether or not you are satisfied beyond reasonable doubt whether [the complainant] was consenting to the sexual penetration that you are considering: ts 206.
Merits of the grounds of appeal
Ground 1
44 The crucial factual issues for the jury to determine in respect of the alleged offences of aggravated sexual penetration without consent were
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- whether the State had proved beyond reasonable doubt that the appellant and the complainant had engaged in sexual intercourse, as alleged, between approximately 11 pm and 4.30 am on the night of 9 and 10 November 2010 and, if so, whether those acts occurred without the complainant's consent.
45 These issues had to be determined in the context that there was no issue that the appellant and the complainant had engaged in sexual intercourse, as it was put at trial, 'the night before'.
46 Dr Bloom's DNA analysis of spermatozoa cells found in the complainant's genital area confirmed only that at some recent point in time prior to the samples being taken, the appellant and the complainant had engaged in sexual intercourse. Dr Broom's evidence as to the probability that those cells came from someone other than the appellant was of no real assistance to the jury, given that this fact was not in dispute. His Honour's observation about the probability evidence was both accurate and appropriate.
47 Dr Broom's evidence concerning the state of the spermatozoa she examined was relevant to the issue of whether the appellant and the complainant had engaged in sexual intercourse during the period alleged by the prosecution. In particular, her observation of intact spermatozoa on the labial swab, an area of the body in which intact spermatozoa may be seen, on average, less than 16 hours after sexual intercourse (the labia being part of the vulva: Dr Green ts 165), supported the evidence of the complainant that the appellant sexually penetrated her as alleged. His Honour, fortunately for the appellant, did not draw this to the attention of the jury.
48 The evidence concerning spermatozoa heads present on the speculum smear, being consistent with sexual intercourse having occurred 'the night before', was of no real moment in light of there being no issue as to this fact.
49 The obligations of a trial judge in summing up to a jury were discussed by Martin CJ (with whom Wheeler JA agreed) in The State of Western Australia v Pollock [2009] WASCA 96 [2] - [6]. Those obligations do not require repetition here. The appellant's trial was short, the evidence, the addresses of counsel and his Honour's summing up took three days. The evidence and the factual issues to be determined were uncomplicated. The closing addresses of counsel, although brief, were comprehensive. His Honour's summing up referred to Dr Broom's
(Page 10)
- evidence concerning the presence of spermatozoa heads in the vaginal smear taken by the speculum.
50 There was no need for his Honour to have done any more. Specifically, there was no need for his Honour to direct the jury that the presence of spermatozoa heads on the speculum smear did not necessarily preclude that sexual intercourse occurred on the previous night. There was no dispute as to this fact. The presence of spermatozoa heads on the speculum smear could not have assisted the jury to resolve the issue of whether the State had proved that the appellant and the complainant had engaged in sexual intercourse on the night of 9 and 10 November 2010.
51 Ground 1 has no reasonable prospect of succeeding.
Ground 2
52 In respect of the impugned direction which is the subject of ground 2, it is necessary to have regard to his Honour's summing up as a whole and not to view portions in isolation and without regard to their context: Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72] (Kirby J); and Steel v The State of Western Australia [2010] WASCA 118 [81] (Buss JA).
53 His Honour's instruction to the jury, that they needed to determine 'whether or not' they were satisfied beyond reasonable doubt whether the complainant was consenting, is not couched in language that clearly articulates that it is for the State to prove that the complainant was not consenting. However, having regard to his Honour's clear and unequivocal statements as to where the onus of proof lay, to which I have referred, there is no reasonable possibility that the jury would have been misled into thinking that the appellant had an onus of proof.
54 Ground 2 has no reasonable prospect of succeeding.
Conclusion
55 Neither proposed ground of appeal has any reasonable prospect of succeeding. Accordingly, the appeal against conviction must be dismissed.
Orders
1. Leave to appeal is refused.
2. The appeal is dismissed.
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