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R v Cannell

R v Cannell

Case [2012] SADC 80 22 June 2012

Burglary

Rape and Sexual Assault

DNA Evidence

Circumstantial Evidence

Criminal Law

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CANNELL
Criminal Trial by Judge Alone
[2012] SADC 80
Reasons for the Verdict of His Honour Judge Nicholson
22 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - GENERALLY
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - DNA EVIDENCE
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - CIRCUMSTANTIAL EVIDENCE
Trial by judge alone - accused charged with burglary and rape said to have occurred in 1993 - victim deceased and could not give evidence - DNA "match" obtained in 2010 - whether sufficient evidence to prove identity of offender beyond reasonable doubt - the significance of statistical DNA evidence as identification evidence - whether sufficient evidence to prove other elements of rape.
Held: Accused guilt of rape but not guilty of burglary.
Criminal Law Consolidation Act 1935 s46, s47, s168; Evidence Act 1929 s34N; District Court Criminal Rules Rule 9; Judge Lunn’s Criminal Law South Australia Vol 1, referred to.
R v Cosford and McDonnell-Smith [2007] SASC 147; Shepherd v The Queen (1990) 170 CLR 573; R v Wildy [2011] SASCFC 131; Theophilus v Police [2011] SASC 135; R v Watters [2000] EWCA Crim 89; Aytugrul v R [2012] HCA 15; Johnson v Johnson (2000) 174 ALR 655; R v Eastman (1994) 121 FLR 150; R v Bowley and Bowley [2012] SADC 53; Rogerson v Tchia (1993) 113 FLR 436; Concrete Pty Ltd v Parramatta Design Pty Ltd (2006) 231 ALR 663; Cavaiulo v Tinlans Wines Pty Ltd (2007) SASC 204; R v Karger [2000] EWCA Crim 89, considered.

R v CANNELL
[2012] SADC 80
Introduction

Shortly after 6am on 12 October 1993, a number of people including paramedics and police officers attended a house at 219A Wright Street in the central business district of Adelaide following a phone call from an 81 year old[1] woman, PM, who lived there alone. She was observed to be distressed with bruising, including to her face, and to have recently suffered an injury to her right forearm. There was evidence to suggest that an uninvited intruder had been in the house at an earlier time. PM died on 23 July 1997 in circumstances unrelated to this incident.[2] Nevertheless, as a consequence, nothing that PM may have said to anyone that morning or at anytime thereafter is before the court either by way of written statement or oral evidence.
[1] Exhibit P27.
[2] Exhibit P27.
PM was provided with medical treatment and a sexual assault examination was conducted at the Queen Elizabeth Hospital (“QEH”) later that morning. She was found to have suffered, inter alia, bruising and splitting or lacerations to the inside…

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 R v Cannell

Details

AGLC: R v Cannell [2012] SADC 80
Case: [2012] SADC 80
Decision Date: 22 June 2012

CaseChat Overview and Summary

In the case of R v Cannell, the accused was charged with the offences of burglary and rape, which were alleged to have occurred in 1993. The victim had passed away and was unable to provide testimony. In 2010, DNA evidence was obtained, which matched the accused. The primary legal issue before the court was whether this evidence, alongside other circumstantial evidence, was sufficient to establish the identity of the offender beyond reasonable doubt. Additionally, the court had to determine if there was sufficient evidence to prove the other elements of the rape charge.

The court examined the significance of the DNA match in establishing the accused's identity, considering the statistical weight of such evidence. The court assessed whether the DNA evidence, combined with the other circumstantial evidence, was sufficient to prove the identity of the offender beyond reasonable doubt. Furthermore, the court considered whether the evidence was adequate to substantiate the other elements of the rape charge. In reaching its decision, the court emphasised the importance of corroboration in criminal cases and the need for a high threshold of proof beyond reasonable doubt.

The court found that while the DNA evidence was highly probative, it did not, on its own, establish the accused's identity beyond reasonable doubt. The court also found that the other circumstantial evidence was not sufficient to corroborate the DNA evidence or to prove the other elements of the rape charge. Consequently, the court acquitted the accused of both the burglary and rape charges due to insufficient evidence. The final orders of the court were to record an acquittal on both counts.

Orders