R v Cannell
[2012] SADC 80
•22 June 2012
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 80Introduction
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 of her vaginal vestibule. Two intimate samples, taken from the lower and upper vagina, following analysis in 1993, each disclosed the presence of sperm. A profile of the male DNA found in PM’s vaginal canal was obtained, following analysis by the South Australian Forensic Science Centre (“FSC”) in 2000 and 2002. However, it was not until 2010 that this profile was found to match the profile from a DNA reference sample obtained from the accused, Peter Tasman Cannell.
Upon an information, dated 14 June 2011, and filed in this court, Peter Tasman Cannell has been charged with the offences of burglary and rape. The trial was heard by me sitting alone without a jury. The particulars of each charge are as follows.
First Count
Statement of offence
Burglary. (Section 168(a) of the Criminal Law Consolidation Act, 1935).
Particulars of offence
Peter Tasman Cannell between the 10th day of October 1993 and the 13th day of October 1993 at Adelaide, in the night, broke and entered the place of residence of PM, with the intention of committing an offence therein, namely an offence against the person.
Second Count
Statement of offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of offence
Peter Tasman Cannell between the 10th day of October 1993 and the 13th day of October 1993 at Adelaide, had vaginal sexual intercourse with PM, without her consent.
Burglary
In October 1993 burglary was a criminal offence in this state.[3] Burglary is committed when a person, in the night, breaks into and enters the place of residence of another with intent to commit any one of certain types of offences including an offence against the person, such as the offence of rape.
[3] Section 168 of the Criminal Law Consolidation Act 1935 as then in force.
To make good its charge the Crown must prove all of the number of elements that comprise this offence. These include that:
(i)any proved break and enter occurred in the night which the law defines, for this purpose, as being that period between 9.00pm and 6.00am; and
(ii)such breaking and entering was done with an intention, at the time, of committing a relevant type of offence as stipulated in the Criminal Law Consolidation Act.
On the assumption, for present purposes, that an uninvited intruder did break into and enter PM’s house, there is no evidence before the court as to precisely when this occurred. It is highly likely that it occurred during the previous night hours. Had any intrusion occurred at a time earlier than during the night hours one would expect PM to have called for help earlier than she did. Nevertheless, on the state of the evidence, it remains a reasonable possibility that any such intrusion occurred at some time earlier than 9pm the previous night.
In any event, the Crown has alleged in the particulars to the charge that, at the time of entry, the accused had an intention to commit an offence against the person. There is some evidence, to which I will come, to suggest that the intruder intended to steal. The only evidence from which it might be inferred that the intruder intended, at the time of entry, to commit an offence against the person is the fact that such an offence ultimately was committed (which fact, for this purpose, I will assume at this stage). As far as the offence of burglary is concerned the relevant intention must exist at the time of the break and enter. It is not sufficient for such an intention to be acquired for the first time at some time thereafter. On the evidence before the court it remains, to my mind, a reasonable possibility that the incident started out as a robbery but one which went horribly wrong, and that the intruder did not have or acquire any intention to commit an offence against the person of PM until some time after the entry.
I raised these two concerns about the burglary charge with counsel for the prosecution during her final address. I indicated then that I was unlikely to find myself satisfied beyond reasonable doubt that the offence of burglary had been proved. That remains my position. The prosecution has not sought for any potentially alternate offence to be considered.
Rape
The offence of rape is comprised of the following elements or ingredients.
(i)The perpetrator engaged in sexual intercourse with the alleged victim. For this purpose sexual intercourse includes penetration of the vagina or the outer lips of the vagina by the male penis. Any degree of such penetration and penetration for any period of time, no matter how brief, will suffice.
(ii)The intercourse occurred, or continued, without the alleged victim’s consent or after the alleged victim’s consent had been withdrawn. Consent means a free and voluntary agreement to engage in the sexual activity with that person at that time.[4]
(iii)The perpetrator either knew that the alleged victim was not consenting or had withdrawn consent or was recklessly indifferent thereto.[5]
[4] In this respect, I have had regard to the requirements of s46 of the Criminal Law Consolidation Act 1935 and s34N of the Evidence Act 1929.
[5] In this respect, I have had regard to the requirements of s47 of the Criminal Law Consolidation Act 1935.
It is the Crown case that it was the accused who, at sometime between 10 October 1993 and 13 October 1993, entered the house of PM and raped PM. The Crown case as to whether the offence of rape was committed and, if so, as to whether it was the accused who committed the offence, is wholly circumstantial.
Directions of law
Whilst the Court of Criminal Appeal in this state has made it plain that it is not necessary for the court having conducted a trial by judge alone to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware, I do nevertheless record that I have reminded myself of and directed myself in accordance with the following matters.
(i)The accused is presumed to be innocent of a charge unless and until his guilt has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving each charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence charged. This accused, like every other, does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it.
(iii)By way of amplification of the above, it is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge under my consideration, I must give the accused the benefit of that doubt and find him not guilty of the charge.
(iv)I have reviewed the standard directions often given in this state to juries concerning an appropriate approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
(v)I remind myself that the accused was not obliged to give evidence; he always had the right to remain silent in answer to the charges leaving it to the prosecution to satisfy me of all of the elements of each charge. In this case the accused did not give evidence and no inference adverse to him or his case in defence is to be drawn because of this. The accused’s silence in court is not evidence against him, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
(vi)At the close of the prosecution case and at a time when defence counsel had indicated the evidence proposed to be adduced in the defence case, a discussion, initiated by the bench, ensued concerning defence counsel’s indication that the accused would not be giving evidence. As a consequence, the next morning and before commencing the defence case,[6] counsel for the defence made an oral application that I recuse myself from further hearing of the trial on the ground of apprehended bias. I refused the application. My reasons for doing so are set out in the appendix to these reasons for verdict.
[6] A defence witness, Mr Dean Morton, had been interposed by consent during the prosecution case.
(vii)In this case, I have heard or received evidence from three persons said to be experts in the field of DNA interpretation and analysis, from a now retired medical practitioner, from a podiatrist and from two police crime scene investigators. Such persons, duly qualified to express an opinion in their particular area of expertise, are permitted to give evidence of their opinions upon relevant matters within the field of their expertise. However, I remind myself that, as the sole judge of the facts, I am not bound to accept such opinion evidence. I am entitled to assess, and accept or reject any such opinion evidence to the extent justified.
I am to give such weight to the opinions of an expert witness as I decide having regard to the qualifications of the witness, the partiality or otherwise of the witness and the extent, if any, to which the witness’s opinion accords with such other facts as I find proved to my satisfaction. I record that as far as all of the expert witnesses are concerned, I found each to be properly qualified and sufficiently experienced to proffer the opinions they gave. Each of the experts assisted the court.
I remind myself that the opinions received are only as valuable as the facts upon which they are based and may have either limited value or no value at all if those facts have not been established to my satisfaction.
(viii)In this case there has been a period of more than 18 years between the alleged offending and the trial. There is potential for that delay to have resulted in significant forensic disadvantages to the accused. By forensic disadvantage, I mean difficulties for the accused in challenging and responding to allegations so long in the past. I must take any such forensic disadvantage into account when scrutinising the evidence for the prosecution. I must take it into account when assessing whether the prosecution has proved its case against the accused beyond reasonable doubt. The potentially significant forensic disadvantages include the following.
(a)During the delay PM has died. This has meant that the court has not heard evidence from her about what, if anything, in fact occurred at the time in question. In addition, the accused has been deprived of the opportunity to cross-examine PM and the potential to elicit matters that might cast a reasonable doubt on the issue of whether the accused was involved at all.
(b)If there had been a prompt complaint brought to the attention of the accused he may have been in a better position to remember where he was, what he was doing and with whom he was at the relevant time, so as to be able to produce evidence casting a reasonable doubt on the proposition that he was present and the perpetrator.
(ix)In this case the Crown has particularised the alleged rape as occurring between 10 and 13 October 1993. As a general rule, particulars are provided by the prosecution to enable the accused to understand what it is that is alleged against him. They are there to enable him to understand on what occasion he is alleged to have committed an offence and the nature of that alleged offence. In this case, the particular as to the timeframe is not an element or ingredient of the offence. The prosecution does not have to prove, in this case, that the offence occurred on a particular date or within a particular range of dates. If I were to be satisfied that the accused raped PM on the occasion and in the circumstances as alleged by the prosecution, even though not satisfied that this necessarily took place precisely within the particularised span of dates, a conviction would still follow.
(x)During argument pursuant to Rule 9 of the District Court Criminal Rules, the defence sought to have a written record of the accused’s offender history details[7] excluded from the evidence to be tendered by the prosecution. I refused the application and ruled that, in the circumstances of this case, such a record was admissible.[8] Nevertheless, I remind myself that the only purpose for which this document is to be used is as to the extent it may assist in drawing inferences concerning the whereabouts of the accused at or about the time of the alleged offending and his association with South Australia generally. I remind myself that to reason along the lines that, because the accused has the criminal record, as revealed in this document, he is the type of person likely to have committed the alleged offences, would be improper and wrong and could lead to an injustice. I indicate that to the extent I have had regard to this document, it has only been for the purpose (referred to above) for which it was admitted.
[7] Exhibit P32.
[8] Ultimately, no objection was pressed as to the accuracy of its contents. The argument was pursued on the grounds of relevance and potential for prejudicial effect.
As I have said, the Crown case is wholly circumstantial. The amount of circumstantial evidence that will suffice to prove a charge beyond reasonable doubt will vary from case to case. The number of circumstances proved can vary enormously and so can the weight of the various circumstances that are proved. In any given circumstantial evidence case, some of the facts directly proved may be quite strong indicators of the ultimate inference argued for by the Crown whereas other proved facts might be quite weak indicators. However, the weight of a case which depends substantially upon circumstantial evidence, in the result, depends upon the combined strength of all the facts that have been proved and that are probative of the ultimate inference sought to be established.
Ordinarily, when approaching a case based on circumstantial evidence it is necessary first to identify those potentially relevant facts that have been established by the evidence and then second, to consider whether or not an inference should be drawn beyond reasonable doubt from those facts. Before I could be satisfied that the accused was guilty of either charged offence I would need to be satisfied not only that guilt was a rational inference but that it was the only rational inference available from the proved circumstances.
The first step requires the identification of potentially relevant facts that have been established by the evidence. In R v Cosford and McDonnell-Smith[9] White J (with whom Duggan and Gray JJ agreed) said this.
While each element of an offence must be proved beyond reasonable doubt, it is clear enough that in a circumstantial case it is not every fact relied upon to prove each element which must itself also be proved beyond reasonable doubt. It is only those facts which constitute indispensable intermediate steps in the reasoning towards an inference of guilt which must be so proved.
. . . .
Shepherd[10] established that in a circumstantial case a fact, not being an element of the offence charged or of a defence to be negated, need not be established beyond reasonable doubt unless it is, in a strictly logical sense, an indispensible link in the chain of sequential reasoning leading to a finding of guilt.
[9] [2007] SASC 147 at [25] and [27].
[10] Shepherd v The Queen (1990) 170 CLR 573.
The second step, identified above, requires me to consider the combined strength of the established facts bearing in mind that when all of the established facts are taken together they may produce a strength or level of assurance which is greater than is the strength of any one individual fact.
What, if anything, happened to PM?
The persons from whom oral evidence was adduced by the Crown included a number of persons who attended PM’s house early in the morning of 12 October 1993,[11] Dr Tania Black who examined PM at the QEH later that day and Ms Rachelle Aucone who worked as a nurse’s aid at a retirement village where PM came to stay soon after being discharged from the QEH.
[11] Alec Hope, a crime scene examiner; Jodie Lamont-Doecke, a police officer; Brian Davis, an ambulance paramedic; Noel Dolman, a friend of PM; Stephen Hammond, a crime scene examiner.
Ms Aucone and Mr Noel Dolman, a friend of PM, gave their evidence only from their unaided memory. All of the other witnesses were involved in a professional capacity and gave evidence in conjunction with having their memories refreshed with the assistance of notes contemporaneously made or adopted by them. I was at the time and remain satisfied that each witness called by the Crown was truthful in the sense that he or she attempted to tell the court the truth as they then recalled it and understood it to be, tried his or her best to assist the court and was conscious of the, understandable, difficulty he or she faced in being able to recall accurately details of an event which took place so very long ago. Notwithstanding this last consideration, but with the exception of Ms Aucone, for the present, I am satisfied that the account of each witness of what he or she did, saw and heard, is reliable to an extent sufficient for me to make the factual findings to which I will come shortly. Before doing this I will briefly summarise the evidence of each witness who was involved in 1993.
Evidence of Noel Dolman
Mr Dolman was first on the scene. He has lived in the CBD area of Adelaide for approximately 24 years. For some years prior to October 1993 his wife, who is now deceased, did voluntary work helping elderly people in the area. Mr Dolman regularly collected his wife from PM’s house after she had been seeing and running errands for PM. As a result he came to know PM. He observed that PM had difficulty with her vision she would use a magnifying glass for small print.
On this particular occasion Mr Dolman’s phone rang at about 6.30am. He told the court that it was a Sunday but this cannot be correct.[12] He answered the telephone and spoke to PM. She sounded “very distressed”.
[12] It is common ground that 12 October 1993 was a Tuesday.
As a result of the phone call Mr Dolman drove around to PM’s place which was about 5 minutes away. Both the front main door and screen door were ajar when he arrived. PM was in the front room. “She was sitting in the chair. I can recall trembling and very disturbed.” After speaking to PM he explored the house to see if anybody else was there. When he got to the kitchen he saw that the main back door was open with the screen door shut. However, the wire screen had been cut in a triangle shape near the lock. Photographs 51 and 62 in exhibit P1 show the state of the wire screen in this respect when photographed by the police later that morning. Mr Dolman recalled that the last time he had been out the back was about two months previously at which time he did not observe any such damage to the screen door.
Mr Dolman returned to PM and telephoned for the police.
“I could see that she was in a pretty bad state ... She was trembling and not really coherent but she was really badly knocked about across the eyes and I could see some blood on her left arm it had either been scraped or bruised. She was in a pretty bad state.”
When asked about the area of her face near her eyes he said “there was reddish bluish, I should imagine it was bruising, coming out across the eyes, eyebrows and across both eyes.” The skin on her arm was showing red blood and she was having difficulty in breathing.
Mr Dolman described the bedroom as “badly disturbed”. “The bedclothes and the sheets and so forth were strewn around. Some on the bed, some on the floor.” However he had not looked in the bedroom on earlier occasions and was not able to say how it might ordinarily look. Mr Dolman’s evidence in this respect is not entirely supported by the photographs in exhibit P1. The bed clothes do not appear to have been strewn on the floor. Nevertheless, the bed clothes do appear as significantly disturbed and more so than one would expect after a night of relatively undisturbed sleep by an elderly woman.
Evidence of Jodie Lamont-Doecke
Ms Lamont-Doecke is no longer with the South Australian Police. She had just started as a police officer having graduated from the Police Academy about two weeks before 12 October 1993.
She attended at 219A Wright Street with Constable Timothy Doecke at about 6.53am; they were the first two police at the scene. When they arrived a male was outside the front of the house. Ms Lamon-Doecke went inside and saw PM. She was asked to describe PM’s demeanour. “She was visibly upset, I could see that she had been crying. She wasn’t crying at the time that I walked in but you could just see the red eyes and, yeah, she was upset.” She was then asked “other than the red eyes, what else was it about her that caused you to say that” and Ms Lamont-Doecke responded “I don’t recall much else”.
An ambulance and some paramedics arrived at 7.06am and left with PM at about 7.22am. Ms Lamont-Doecke travelled with PM to the QEH and remained with her there for a couple of hours. When asked “how was she during that time” Ms Lamont-Doecke replied “I don’t recall”. Ms Lamont-Doecke left PM at the hospital after she handed her over to a member of the sexual assault team.
Evidence of Brian Davis
Mr Davis is a paramedic. He and his partner arrived at 7.05am. He was asked to describe PM’s emotional state when he arrived and he told the court that he had written in his notes “obvious signs of distress”. He said that this meant to him emotional distress. Mr Davis observed PM to be conscious, alert and orientated. She had a skin tear to the back of her right forearm, a contusion (bruising) to her nose, and she complained of pain to her shoulder and upper arms. Mr Davis rendered first aid treatment; he dressed her arm with a bandage and applied some oxygen to settle her respiratory status and effort. He also gave her “emotional support”.
Mr Davis identified various prescription medications found in the house and after giving evidence about his basic pharmacological training and experience as a paramedic, he explained the basic nature of these medications. I am satisfied that Mr Davis had sufficient relevant expertise to be able to provide the court with the relatively limited information he provided on this topic. On the basis of this evidence, I am satisfied that PM had been prescribed medication, typically taken for respiratory that is, chronic airway, and heart related conditions and anaemia.
The last contact Mr Davis had with PM was when he conveyed her to the QEH arriving at about 7.38am.
Evidence of Mr Alec Winston Hope
Mr Hope, at the time of giving evidence, was a retired police officer. He served 41 years in the police force and had spent 25 of those years as a crime scene investigator.
He arrived at about 7.30am and examined the premises for a potential point of entry. He observed a slash to the exterior flywire door at the rear of the premises. All windows of the premises were secure and, whilst both the main front door and the main back door were not secure, by the time of his observations other police and ambulance officers had been in attendance. The slash or tear in the flywire[13] was immediately adjacent to and would permit access to the internal snib lock of the flywire door which, when unlocked, would permit access through the main rear door if it were to have been left unlocked.
[13] See photographs 51 and 62 in exhibit P1.
Mr Hope described the location of PM’s house relative to adjacent premises and described its internal layout. The immediately adjacent property (no. 219) had been subject to significant renovation work with its back yard as a work site. With the assistance of the photographs, exhibit P1, he explained how access could readily be gained from a rear laneway to the back yard of no. 219 from where access to PM’s back yard could then readily be gained through either of two gaps in the dividing side fence between the two properties.[14]
[14] Photograph 43 in exhibit P1 was taken from a position outside and close to PM’s back door and shows one of the gaps in the fence line through to the back yard of no. 219.
PM’s house comprised a hallway that ran from the front to the rear with three rooms off to the left, that is, to the eastern side of the hallway. The hallway ended at a kitchen and on the other side of the kitchen was a bathroom. The front door was a wooden door with a fly screen which was ajar when Mr Hope arrived. The back door was off the kitchen itself and was also wooden with a fly screen door outside it.
Mr Hope, with the assistance of his contemporaneous notes and the photographs in exhibit P1, recalled making the following observations about the nature and contents of the house. I accept this evidence.
(i)He observed two jewellery boxes above the gas heater in the front room both of which were open and he found a single earring (photograph 3) on the carpet in front of the gas heater.
(ii)He observed a screw driver on the floor of the front room leaning against the heater (photograph 2).
(iii)The state of the main bedroom at the time when Mr Hope arrived was as shown in photograph 19. The room looked to be a bit “dishevelled”.
(iv)Photographs 26, 34 and 35 show a towel located on the pillow on the bed. The towel had blood-like staining on it. The blood-like stains were not tested. Mr Hope, at that stage, had been a crime scene investigator for 20 years or so and had attended many crime scenes where there had been blood staining. He had become familiar with the appearance of blood. This staining looked like blood to him.
(v)Photographs 32 and 33 show blood-like staining on a quilt. Again, these stains appeared to Mr Hope to be blood.
(vi)Mr Hope observed white and brown debris on a piece of carpet which was outside, approximately two or three metres from, PM’s back door. This debris looked to be consistent with white and brown cement/dirt material that he had observed in the back yard of no. 219. The debris on the carpet appeared to be recently deposited; some of it appeared to be still moist.
(vii)Mr Hope said that he had seen on numerous occasions a tear in a flywire door of the type observed this time. In his experience, it was a normal way of undoing the flywire door lock from the outside. The lock in this case could be locked or unlocked by flipping a little knob up or down.
(viii)Mr Hope also observed white debris on the floor of the kitchen (photograph 63). He formed the view at the time that it was cement-like material that had come from the premises next door. It was similar to that which he had seen outside PM’s back door.
(ix)Other photographs in exhibit P1 show deposits inside the house of material similar to or consistent with that which Mr Hope saw outside.
(x)Mr Hope looked for suitable surfaces for fingerprint analysis. Only a drinking glass which he thought to be in an unusual location provided prints suitable for comparison purposes. These did not provoke a match in the police database. The accused’s fingerprints and those of his brother, Matthew Cannell, were specifically excluded from having been left on the glass.[15] Neither PM’s nor Mr Dolman’s fingerprints were obtained for exclusionary purposes.
(xi)During his examination-in-chief Mr Hope said that he looked for but did not see any purse or handbag in the house. However, during cross-examination his attention was drawn to photograph 1. I am satisfied, that a small purse can be seen on the corner of the table shown in that photograph.
(xii)According to Mr Hope, the wardrobe doors in the bedroom were locked and the keys were in place. He saw nothing that he could say was necessarily out of place throughout the house.
(xiii)Mr Hope did not request any of the debris samples observed and collected to be analysed. His opinion that the material inside the cottage was similar to the material in the back yard of the house next door was based on a visual observation only.
(xiv)Mr Hope did not observe any indication of forced entry with respect to the main (wooden) back door or its lock. The only indication of a forced entry that Mr Hope observed was the tear or slash in the outside flywire door.
(xv)Mr Hope was unable to express any opinion as to when the flywire may have been damaged or as to when the blood-like stains on the quilt or the towel might have been deposited.
Evidence of Stephen Hammond
[15] Evidence of Detective Brevet Sergeant Garry Rivett.
Stephen Hammond was a crime scene examiner with the South Australian Police at the time of this incident. He was examined at some length about his qualifications and experience as a crime scene examiner. I am satisfied that he was sufficiently qualified and had the appropriate expertise to express the opinions dealt with below; which opinions I accept.
Mr Hammond attended the scene at about 9.17am on 12 October with a partner, senior constable Ian Williams, who was a more junior crime scene investigating officer. Mr Hammond described it as a less serious scene than he would normally attend and on that basis he used it as a training exercise for Mr Williams who was nominated as the designated reporting officer for that day. Nevertheless, the two of them worked together as a team. Mr Hammond and Mr Williams concerned themselves with the outside of the premises. A number of photographs were taken by either Mr Hammond or his partner Mr Williams. In particular, they took photographs of various shoe impressions which can be seen in exhibit P1 and P4. Mr Hammond also prepared a plan of the back yard of no. 219 (the next door house) showing the locations of some of the shoe impressions.[16] The shoe impressions were of a distinctive appearance.
In my experience as a crime scene examiner I normally come across shoe prints that are of a sneaker or runner type. I have never seen anything like this shape previously at a crime scene and they were a distinctive type of shoe.
He agreed that they were of a shoe with a pointy toe and round heel.
[16] Exhibit P5.
Mr Hammond also gave evidence of seeing a gap in the side fence between the rear of no. 219A (PM’s house) and no. 219. He has shown this on the top left hand side of his diagram (no. 219A is to the left side of the diagram). Mr Hammond attempted to track the path of the shoe prints. His evidence was to the effect that the shoe prints appeared to proceed from the bottom of the back yard of the house at no. 219 towards the house itself and then back towards the rear lane.
There was a gap in the fence between the two rear yards, so in relation to exhibit P5, the sketch, the shoe prints heading north [up the page] were heading from the laneway north towards the rear of unit 219. There was a gap in the fence by the rear of the fence,[17] and then there was a separate trail leading north to south away from the rear of 219.
[17] Whilst I have no recollection of this, the context and the substance of Mr Hammond’s evidence on this topic generally, suggests a transcription error here and that the second “fence” in this answer should read “house”. In any event and even if this were not to be a transcription error the whole of Mr Hammond’s evidence on this topic taken in conjunction with Mr Hope’s and the photographs lead me to infer that someone at some time gained access to PM’s house through the back yard of no. 219.
Mr Hammond was not aware of whether or not no. 219 was occupied at the time but he did observe a lot of renovations going on. In addition to the shoe prints with the pointy toe and rounded heel, there were other prints that appeared to come from worker’s boots and the like.
The pointy shoe prints stood out because they looked more recent. They also looked out of character when compared with the other footprints. They looked more recent because there was no evidence of extraneous material that had dropped into the shoe print when compared with the other workman’s boots prints which had other footprints over them. There was no evidence that anyone had walked over or disturbed the pointy shoe prints in any way. Also the cement type material in which some of the prints were found looked fresh, as if it had been washed out from a concrete mixer and there were footprints that had lifted the greyish sludge off the soil beneath. Mr Hammond could not say how long the prints had been there, “I certainly didn’t think they had been there for days, certainly hours, perhaps the night before something like that”. He did not touch the cement sludge. He did not have to - he could tell it was quite damp.
Mr Hammond recognised on the piece of carpet outside PM’s back door what appeared to him to be an imprint of the pointy toe shoe (photograph 46).
There are a number of reddish and light coloured soil residues on that carpet square and the one part of the residue in the middle of the two – correction, the residue in the middle of the three shown on the carpet mat appears to be a slight pointy area going towards the bottom left hand corner of the photograph which was consistent with the shoe prints in the rear of 219.
Mr Hammond looked inside PM’s house for soil or debris which might match that which he saw outside no. 219 and outside PM’s back door. Photographs 63-67 show areas in the kitchen where similar debris was located. Other than this debris, no rubbish or dirt was on the floor to Mr Hammond’s recollection. He did not recall the floor as being untidy in any way. The residue that can be seen in photographs 63 and 64 was a small quantity of hardened cement/concrete.
Mr Hammond did not analyse the debris. He only made a visual comparison between that which he saw on the floor and the type of material that was part of the shoe prints outside. He acknowledged that he did not have any particular expertise in comparing materials of this nature. He made his comparison just as a lay person looking at the samples of soil and white material. He agreed that the material inside PM’s house was harder and drier and of a slightly different colour, as a result, Mr Hammond suggested, of the drying process.
Photograph 66 shows a piece of carpet immediately inside the rear door taken from within the kitchen looking towards the rear door. According to Mr Hammond, reddy-orangey material on this carpet was red sand or building material similar to that seen in the back yard of no. 219.
At T144, Mr Hammond gave this answer,
The opinion I had, having looked at the shoe prints and the residue in the house in 219A where some of the shoe prints picked up some of the grey cement, some of them actually went through and picked up some of the red building material. Whilst there was a pile of red sand by the two sliding doors [being part of the back wall of no. 219], there was also sort of general building sand throughout the rear yard of 219 so the cement was on top of that, so it appeared as though the shoes had picked up both the grey cement and the red building material and inside the kitchen there was dried cement material and also red sand which is similar to that material next door.
According to Mr Hammond, the area of debris in photograph 65 was similar in colour and texture to the debris found as shown in photographs 63 and 64. They were both very similar in composition to the damp cement that was in the rear yard of no. 219.
In Mr Hammond’s opinion, the shoe impressions were left by a leather sole type shoe that may have been something like a dress shoe. The impressions were not made whilst someone was running. The impressions were made by a slow movement across the ground. The design was certainly nothing like that of a runner or a sneaker.
I am satisfied that Mr Hammond (and Mr Hope for that matter) had sufficient experience as lay persons and as crime scene investigators to express soundly based opinions about the debris comparisons. Had I been required to make a finding in isolation that the material inside PM’s house had come from the back yard of no. 219, beyond reasonable doubt, the lack of any formal materials analysis may have caused concern. However, in all the circumstances, and given all of the other evidence tending to the conclusion that an intruder entered PM’s premises not long before the police presence, I find the inference that access was obtained through the adjacent back yard irresistible.
Evidence of Tania Black
Dr Tania Black is now a retired general medical practitioner. She spent much of her working experience engaged in women’s health. She worked at the sexual assault service for almost 20 years; starting in about 1977. She conducted an examination of PM and when giving her evidence had reference to her contemporaneously made notes.
Dr Black first saw PM at 9.25am on 12 October 1993 at the QEH. Dr Black observed PM to be an elderly, frail woman who was breathless, talkative and apparently alert. PM complained of a painful neck, shoulders and arm.
Dr Black examined PM’s body while she was lying in a semi-recovery position. Because she was not lying flat which normally is more helpful for examinations, Dr Black was only able to conduct a limited examination of her external physical appearance.
There was a dark red mark on her nose which appeared to be a possible recent injury ... there was redness in her throat, the middle of her throat, ... she had her right forearm already bandaged.
At the time of trial Dr Black had no independent recollection of PM and was unable to say that the woman in photograph 70 of exhibit P1 was the woman she examined.[18] However, she agreed that photograph 70 shows a mark on the side of the nose in the place where Dr Black drew a mark in her notes. The redness to PM’s throat was over an area of about 4-5cms x 4-5cms. Dr Black had drawn a picture of this in her notes. It was over the larynx.
[18] It is not in dispute that photographs 70-73 inclusive depict PM and were taken by police officer Carolyn Walton at the QEH at 8.15pm on Thursday 14 October 1993, that is, two days after Dr Black first examined PM.
Dr Black performed an internal genitalia examination but did not use a speculum to look inside the vagina. There was no evidence of blood in the area and Dr Black was not concerned that there may have been injuries inside the vaginal canal. Exhibit P3 is a diagram showing the genital injuries identified by Dr Black. She described the observed injuries as follows.
The diagram shows the labia-the lips – the labia parted and the entrance area or the vaginal vestibule, it shows the urethra and then on either side and in front of the urethra, that is near [sic: nearer] the abdomen, there is some bruising and split areas of skin that I have drawn in. Then behind the vaginal canal entrance, that is nearer the anus there is a semi-circular area of bruising and skin laceration split.
The bruising was consistent with a blunt injury to the area and the splits were due to the skin “just not being elastic enough to stretch any further and splitting”. Dr Black observed three distinct split areas. She used the term laceration to refer to an area of more extensive skin split.
The injuries Dr Black observed were consistent with forceful penile penetration. Dr Black was asked how significant were the injuries to the genital area.
Well, I would expect them to cause some initial pain at the time they occurred. I would expect them to be causing her some discomfort especially if – when she urinated, that is the raw area would sting and it would cause some discomfort.
Dr Black took a number of forensic samples and explained in some detail the process she undertook in obtaining and preserving these samples. The samples included swabs from the entrance area, that is, the low vaginal area, and from inside the vaginal canal. Dr Black took steps to ensure that the swabs taken from inside the vaginal canal were taken in such a way as to avoid contamination. She was very careful with her taking of the swabs as was her general practice, and had no reason to think that there had been any contamination between the swabs. If there had been any concern in this respect, she would have taken another sample. Dr Black completed her examination, handed over the forensic samples to a police officer at 10.45am and finished with PM at 11am.
Dr Black went to see PM in the ward on Thursday, 14 October. She again examined her genitalia and observed that they were “bruised and red looking generally, specific areas anterolaterally”. There was a little more redness towards the middle but the split was healing and hadn’t re-opened. There had been some improvement with her other apparent injuries but also some extension of the bruising or reddening because, as Dr Black said, bruising does not always show immediately. On this occasion she also noted an abrasion on PM’s nose but that the redness to the nose, the cheeks and the throat had now gone. There was a small bruise on the right side of the forehead. The right forearm had extensive skin loss on its mid-dorsal surface and there was a smaller bruise near the elbow. In addition, PM’s left shin was largely taken up by a black bruise.
As far as the forearm injury was concerned, Dr Black said that in elderly people the skin quite readily peels off and in this case there was quite an extensive area of skin loss on the back of the right forearm. It was like what is sometimes described as a de-gloving injury. As far as the shin was concerned, the area of the shin was all bruised and it was black. Dr Black said that the aging of bruises is fraught with difficulties and that any fairly recent bruising can be red, black or green. However, she did not see any yellow areas to suggest that the bruising had been present long enough for it to start resolving. Dr Black had not recorded the shin bruise on the occasion of her first examination. She said that the bruise might have been there although not obvious at the time.
Dr Black told the court that older people, both men and women, bruise more easily than younger people because the skin is more frail and thinner. From her personal experience and observation bruising in the elderly can take longer to go away. The genital area of an older person is also more prone to bruising. In older women the tissues are not as robust and there is less oestrogen available to promote healthy tissues in that area.
Dr Black was asked to look at photographs 70 and 71 of exhibit P1 and agreed that the red areas near the eyes look like bruising. According to Dr Black there appeared to be bruising under both eyes and some bruising on the end of the nose. She has no recollection of seeing that bruising herself. Again, this might be explained by the fact that bruising is not always at first apparent and can take some time to appear. It may not have been apparent at the time Dr Black first saw PM.
In cross-examination Dr Black agreed that an older woman may end up with bruising to the vaginal area even in the case of consensual intercourse.
I suppose that could happen if the person had not had intercourse for a long time or wasn’t having regular intercourse, put it that way, some bruising, but to the extent of causing lacerations that would be somewhat masochistic.
Dr Black agreed that forceful intercourse could have caused the injuries she observed. She recognised that forceful intercourse is not necessarily non-consensual. Whilst scratching with a fingernail could not be ruled out as causing this type of injury, Dr Black said that such was not consistent with the distribution of the injury. She agreed that if a woman tried to push her finger into the vaginal opening for some reason such a laceration could be self-inflicted.
I found Dr Black to be an impressive witness with significant experience in women’s health generally and women’s genital area examinations. I accept that she has accurately recounted to the court her observations of PM, the steps she took to obtain forensic samples and that the medical opinions she expressed were soundly based and reliable.
Evidence of Rachelle Aucone
Ms Aucone was employed at the Southern Corporation Retirement Village and was working there in 1993. In October 1993 she had a position as a nurse’s aid. The Southern Corporation Retirement Village offered low level hostel care for elderly people. Each of 31 residents had their own room. In October 1993 PM came to stay at the retirement village. No records from that period have been located. Ms Aucone’s evidence was solely from her memory.
It was Ms Aucone’s understanding that PM was not coming as a long term resident but for a period of respite care after being discharged from the QEH. Ms Aucone was PM’s main carer and assisted her with her daily personal needs; her showering, her dressing, the cleaning of her wounds and so on. PM stayed approximately 6 weeks. Ms Aucone spent time with PM on a daily basis and observed her to be hard of hearing. She was reasonably mobile and did not need a frame to walk around. She was able to walk to the dining room unassisted which was approximately 10-15m from her room.
Ms Aucone said that during PM’s period at the retirement village she had a broken arm in a cast. She was also extremely bruised; Ms Aucone described the bruising as being over 90% of her body. There was bruising around the upper part of her body, all over her shoulders, all down her arms, under her arms, on her back and all around her breasts. She had quite a lot of bruising in between her thighs and on the outside of her legs. Ms Aucone had never seen anybody during her 25 years at the retirement village with bruising of this nature and to this extent.
Ms Aucone was not able to recall the date of admission, but according to Ms Aucone’s recollection PM came directly from the hospital for respite care after which she returned to her home.
There are at least two aspects of Ms Aucone’s evidence that are highly likely to be incorrect. According to an agreed fact[19] PM did not have a broken arm when she was discharged from the QEH and the existence of a broken arm is quite inconsistent with all of the other observational evidence. Furthermore, it is highly likely that PM was not discharged from the QEH directly to the retirement village but spent some intervening time in her own home.[20] Whilst Ms Aucone’s evidence is consistent generally with the prosecution case it was given solely from memory and it is not inconceivable that Ms Aucone may have, in some respects, confused her experience of PM with one or more other respite care residents. Ms Aucone’s observations of bruising differ very significantly from those of the other witnesses and, in particular, Dr Black. Whilst this apparent exacerbation of the observed bruising may be explained by Dr Black’s evidence that bruising can take time to appear, I cannot reject, as a reasonable possibility, that PM was also involved in another incident, perhaps a severe fall, between discharge from the QEH and arrival into Ms Aucone’s care. For these reasons, I have placed some but only quite limited weight on Ms Aucone’s evidence.
Evidence of Dean Morton
[19] See exhibit P40, agreed fact 2.
[20] See exhibit P40, agreed facts 2 and 3.
Dean Morton was called in the defence case but was interposed during the prosecution case. He gave his evidence via videolink from Port Lincoln. In 1993 he was employed cleaning buildings in and around the Adelaide CBD. On one particular evening he was cleaning the outside of the building at 200 Sturt Street. He saw something that caused him to go to the police. As he was cleaning the outside of the windows probably at about 2.30am to 3am, a man approached him and asked him for the time. Mr Morton told him the time and the man walked off. The next night Mr Morton saw a news report of the apparent incident at 219A Wright Street and as a result he went to the police and told him about the man he had seen. Mr Morton said there were very few people in the area at that time of night. He described the man that he saw and with the assistance of police, on 15 October 1993, compiled a facial image.[21] “They showed me a number of different facial features: eyes, nose, mouth, hair, face and said choose ones that you think looks like the person you saw.”
[21] Exhibit D12.
I accept that Mr Morton was an honest witness and tried to assist both the police and the court as best he could. However, the circumstances in which he saw the man and retained in his memory some image of his features could hardly have been less propitious. Mr Morton was busy, he had a fleeting interaction and a request for the time at 3am during the night in somewhat trivial circumstances such that it was quite likely that Mr Morton had no occasion to examine the man’s features with any care or to expect that he would ever need to remember them again. Three days or so later Mr Morton assisted with the identikit process and created a crudely represented facial image with all of the scope for error thereby entailed.
Mr Morton’s evidence demonstrates that at least two people (including himself) were on the street in close proximity to PM’s house on the night in question. However, this, of itself, does not assist the defence. I accept, in any event, that there were many sexually active men, perhaps hundreds or thousands, in the houses and, no doubt, some on the streets of the western half of the Adelaide CBD that evening.
The defence has submitted that the accused’s brother, Matthew Cannell, is similar in appearance to the facial image and more similar in appearance than is the accused.[22] Ignoring, for the moment, the quite unreliable nature of the facial image itself, I disagree. However, I do accept that if the man who asked the time did have longish hair, as shown in the facial image, such is inconsistent with the accused who is recorded in police records as having very short hair shortly prior to 12 October 1993.
[22] There is in evidence broadly contemporaneous photographs of both men and also evidence of their respective hair lengths and other features at the time.
Some conclusions to this point
In my view, the evidence just summarised, which, subject to the qualifications already and to be expressed, I accept, permits the following direct findings to be made and inferences of fact to be drawn. Again, subject to any expressed qualification in this respect, I am satisfied as to the following matters beyond reasonable doubt.
(i)In the days leading up to Tuesday 12 October 1993 PM was a somewhat frail 81 year old woman who lived alone in the house at 219A Wright Street; she had a respiratory condition and suffered from time to time with breathing difficulty and, to some degree, had diminished hearing and eyesight.
(ii)At some time prior to the time when PM was first perceived (by Mr Dolman at about 6.30am) to be in a distressed state, an intruder obtained access, via the adjacent property at no. 219 Wright Street, to PM’s backyard.
(iii)From there, the intruder entered PM’s house through the back door leaving a trail of debris both outside and inside PM’s house, picked up from the backyard of no. 219.
(iv)The intruder gained access to the main back door by slashing a hole in the flywire of the screen door either by using the screw driver found in the house or by some other means and thereafter unlocking the screen door. I accept that there is no evidence that the main back door was in any way interfered with. It must have been left unlocked at the time.[23]
(v)The intruder most likely was intent on stealing.[24] In any event, the intruder came upon PM and a struggle of some sort ensued such that PM suffered bruising to her face (at least) and an injury to her right forearm.[25]
(vi)At some time prior to telephoning Mr Dolman, PM was subjected to an act of penile-vaginal intercourse. According to the forensic science test results of the lower and upper vaginal swabs taken by Dr Black, sperm was present in PM’s vagina. This aspect of the evidence has never been challenged. There has been no challenge, nor could the evidence support any challenge, to this test result. I am satisfied, on the evidence, that the intimate swabs taken by Dr Black were properly obtained and labelled, that the chain of custody until time for testing was properly maintained, that there has been no reasonable possibility of contamination and that the examination for the presence of sperm was performed in accordance with the appropriate protocols.
(vii)That act of penile-vaginal intercourse was performed by the intruder.
[23] This is a matter which lends support to the possibility that the unauthorised entry may have taken place at a time before PM secured the house and went to bed the previous night and therefore, perhaps, before 9pm.
[24] The earring on the floor, the open jewellery boxes.
[25] The evidence in support of this includes: the state of disarray of the bed clothes, the blood like stains on the towel and quilt cover, PM’s appearance in photographs 70 to 73, the injuries and bruising observed by Dr Black, the demeanour of PM as observed by a number of the witnesses and the sperm found in PM’s vagina.
As far as the finding in (vii) is concerned, I make the following observations. I accept that it is conceivable, as the defence suggested, that Dr Black’s observations of PM’s genital and vaginal vestibule area were not necessarily inconsistent with consensual sex having taken place. I accept that it is conceivable that prior to and leading up to 12 October 1993 PM had been sexually active. I accept as accurate the evidence of Dr Duncan Taylor[26] to the effect that under the right conditions sperm can survive in the vagina, for perhaps a week although “the majority of sperm detected would tend to peter off within three to four days”. As a consequence it is conceivable that PM had engaged in an act of sexual intercourse some days before 12 October and that this sexual activity was independent of any intruder incident in the hours or days before the early morning of 12 October. Nevertheless, having recognised the occurrence of an earlier consensual act of sexual intercourse to be conceivable I do not, having regard to all of the evidence, find it to have been a reasonable possibility. On the contrary, I find the notions that no unauthorised intrusion occurred at all or that if it did, it was independent of an act of intercourse engaged in by another person with PM, on another occasion, to be fanciful notions.
[26] His evidence is dealt with further below.
In any event, the central issue remains: has the Crown proved beyond reasonable doubt that the sperm found in PM’s vagina came from the accused. In this respect the Crown relies very much on DNA evidence, to be dealt with below. If not, then the findings made to this point become of no consequence. However, if so, then the inference that the accused entered PM’s house at some time during the hours or days prior to 12 October 1993 and engaged in an act of sexual intercourse without, and knowing it was without, PM’s consent, would be overwhelming. In this respect, a central feature of the defence case is the fact that the DNA evidence has to be considered in the context that the accused has a full biological brother, Matthew Cannell. The defence submits, inter alia, that on a proper consideration of all of the evidence in this case, it is not sufficiently probative so as to exclude, as a reasonable possibility, that the brother was the perpetrator and source of the sperm.
Evidence and findings concerning the whereabouts of the accused and of his brother, Matthew Cannell, in or about October 1993
Detective Brevet Sergeant Rivett conducted a number of searches and made a number of enquiries in an effort to determine whether or not the accused had any biological brothers. He told the court, in some detail, about the nature of the enquiries he made in this respect. The only references to any siblings that he was able to locate were references to Matthew Cannell, an apparent full biological brother, and to Melinda Cannell, an apparent full biological sister. None of Mr Rivett’s evidence in this respect was objected to or challenged in cross-examination by the defence. Furthermore, in a phone call between the accused and Matthew Cannell,[27] the accused agreed with and, in my opinion, adopted the proposition put to him, to the effect, that he only has one brother. I am satisfied that the accused has one full biological brother, that is, Matthew Cannell. There is no evidence before the court whatsoever to suggest even the possibility of there being any other full biological brother, that is, another son born to Peter and Matthew Cannell’s mother and father. At no time did the defence raise this as a possibility. On the evidence before the court, I do not consider it to be reasonably possible that the accused had any full biological siblings other than Matthew and Melinda.
[27] Exhibit P24A (the first conversation) dealt with later in these reasons.
Mr Rivett managed to contact the accused’s brother in March of this year. They had a number of telephone conversations. Notwithstanding his having been in contact with Matthew Cannell, he was unable to obtain a swab from Matthew Cannell for DNA analysis purposes. Matthew Cannell has not given evidence in this trial. I must not speculate about what he might have said had he given evidence nor as to what any analysis of Matthew Cannell’s DNA might have shown had a reference sample been made available. I have drawn no inference adverse to the accused or the defence he has presented from the brother’s failure to give evidence or to provide a DNA reference sample.
Mr Rivett also gave evidence concerning various investigations he undertook and enquiries he made in order to ascertain the whereabouts of the accused and of his brother in October 1993. The focus of much of Mr Rivett’s investigations was contemporaneously made police department records, court records, Centrelink records and the like.[28]
[28] Mr Rivett’s evidence was not objected to by the defence; it was admitted on the basis that he was proffering an accurate statement of the information revealed in the source records he relied on. The issue was raised from the bench but the defence did not seek to challenge, the nature of the records relied on, that is, as to whether or not they comprised business records, or their admissibility generally, in the event that the prosecution were to have sought their tender.
The following documents were tendered by either prosecution or defendant without objection by the other as being relevant to this enquiry: photographs of the accused and his brother taken at the Adelaide City Watch House on 5 September 1993 and 26 November 1993 respectively;[29] a two page letter from Centrelink setting out the bank account details and the addresses for the accused to be found in Centrelink’s electronic records for the period 1 September 1993 to 1 December 1993;[30] a similar letter from Centrelink, this time setting out the bank account details for Matthew Cannell for the period 1 September 1993 to 1 December 1993 and his address details for the financial years ending 30 June 1993 and 30 June 1994;[31] the South Australian Police offender history record for the accused;[32] the South Australian Police offender history record for Matthew Cannell;[33] a document purporting to summarise Mr Rivett’s evidence together with the effect of other documentary material as to the movements of the accused and of his brother;[34] a second document purporting to summarise Mr Rivett’s evidence together with the effect of other documentary material, as to the movements of the accused;[35] a series of google street maps;[36] and an affidavit by the accused’s solicitor.[37]
[29] Exhibits P26 and P25.
[30] Exhibit P28.
[31] Exhibit P29.
[32] Exhibit P32.
[33] Exhibit P31.
[34] Exhibit P38.
[35] Exhibit D56.
[36] Exhibits P33, D34, D35 and D36 together with a photograph of 200 Sturt Street (D37).
[37] Exhibit D54.
As far as the accused is concerned this evidence allows the following findings and inferences to be made and drawn.
(i)The accused was born in Geelong, Victoria on 13 August 1971 and would have been 22 as at or about 12 October 1993, the time of the incident with PM.[38]
[38] Exhibit P14.
(ii)The accused had a connection with and regular presence in South Australia and, in particular, Adelaide between 1988 and 1989.[39]
[39] Exhibits P32 and D56. I have inferred that, ordinarily, the offences dealt with in the South Australian courts during this period, not being Commonwealth offences, would have been committed in South Australia.
(iii)Between 1990 and the first half of 1993 the accused had a connection with and regular presence (including substantial periods in custody)[40] in the Northern Territory and Victoria.
[40] According to the evidence of Mr Rivett not objected to nor challenged, the three months prison term ordered by the Geelong Magistrates Court on 21 June 1993 (P32) was served in the community and not in custody.
(iv)From March 1995 until August 2010 the accused appears to have been quite fully occupied in the Northern Territory, Western Australia, Victoria and Queensland and with limited opportunities to spend time in Adelaide.[41]
[41] Exhibit P32.
(v)On 6 August 1993 (a little more than two months prior to the incident involving PM) the accused was dealt with in the Holden Hill Magistrates Court and ordered to perform 40 hours of community service.[42]
(vi)On 5 September 1993 the accused, using the alias P J Stevens,[43] was present in the Adelaide City Watch House.[44] He had been arrested in Glandore and had given police the address of 12A Oakley Street, Adelaide.[45]
(vii)On 15 September 1993 a male claiming to be Peter Tasman Cannell with date of birth 13 August 1971[46] reported to police at Port Adelaide that his brief case had been stolen from inside a cubicle at Port Adelaide Mall.[47]
(viii)On 15 September 1993 a fingerprint matching that of the accused was located at premises in Vincent Place, Adelaide.[48]
(ix)On 20 September 1993 the accused appeared in the Adelaide Magistrates Court; bail to continue was ordered.[49]
(x)On 18 October 1993, one week or so after the incident with PM, a male person claiming to be Peter Cannell with date of birth 13 August 1971[50] reported to Ceduna police that his bag and its contents had been stolen from the foreshore near the Ceduna Community Hotel.[51]
(xi)On 20 October 1993, 16 November 1993 and 29 November 1993, the accused presented himself to the Magistrates Court in Ceduna.[52]
(xii)During September 1993 to November 1993, police records contained a number of South Australian addresses for the accused, including 12A Oakley Street, Adelaide; 26 Second Street, Wingfield; SA Agricultural Farm, Magill Road; 2 Rosetta Street, Rosewater; 10 Chandler Crescent, Ceduna and 10 Rosetta Street, Rosewater.
(xiii)During the period 1 September 1993 to 1 December 1993, Centrelink records disclosed three bank accounts for the accused; an account at the ANZ Ceduna branch, an account at the NAB Port Adelaide branch and an account at the CBA Gouger Street, Adelaide branch.[53]
(xiv)During the period 1 September 1993 to 1 December 1993, Centrelink records disclosed various addresses for the accused, all but one of which were in South Australia; 12 Oakley Street, Adelaide 5000; 80 Currie Street, Adelaide 5000; 195 Anzac Highway, Kurralta Park 5031; c/- Post Office, Port Adelaide 5015; 2/28 Alice Street, Rosewater 5013; Post Office, Ceduna 5690, 10 Chandler Crescent, Ceduna 5690; and c/- Post Office, Palmerston 0830.
[42] Exhibits P32, P38.
[43] It should also be noted that a male, bailed as Peter Tasman Cannell, alias Peter John Stevens of 16 Tollerdown Street, Elizabeth West, was remanded to appear in the Holden Hill Magistrates Court on 30 April 1990 (exhibit P38).
[44] Exhibit P26.
[45] Exhibit P38. The evidence is conflicting as to whether a 12A Oakley St has ever existed as opposed to only a 12 Oakley Street. It is not necessary to make a finding in this respect. According to exhibit P28, Centrelink records show an address for the accused of 12 Oakley Street, Adelaide during the period 1 September to 1 December 1993.
[46] Cf; exhibit P14.
[47] Exhibit P38.
[48] Exhibit P38.
[49] Exhibit P38.
[50] Cf; exhibit P14.
[51] Exhibit P38.
[52] Exhibit P38.
[53] I accept that this is not evidence from which it can be inferred that these accounts or any of them were necessarily still open during this period; only that this is the information that Centrelink had been provided with and which had not been altered by or on behalf of the accused for the period in question. I also accept that when a person is receiving Centrelink payments (as to which there is no direct evidence concerning this accused) it, ordinarily, is important that Centrelink is provided with current banking details.
As far as Matthew Cannell is concerned, Mr Rivett said that after completing his enquiries he had obtained no evidence that would necessarily exclude Matthew Cannell from being in Adelaide on or about 12 October 1993. The documentary evidence and the evidence of Mr Rivett allows the following findings and inferences to be made and drawn.
(i)Matthew Cannell was born in Geelong, Victoria on 16 April 1974 and would have been 19 as at or about 12 October 1993, the time of the incident with PM.[54]
(ii)A Victorian address was recorded for Matthew Cannell in the Victorian Police records as at 11 June 1990.[55]
(iii)Matthew Cannell was arrested and photographed at the Adelaide City Watch House on 26 November 1993.[56]
(iv)The offences for which Matthew Cannell had been arrested occurred in Torrensville, South Australia on 26 November 1993.[57]
(v)The address provided to police by Matthew Cannell on 26 November 1993 was 82 Ashley Street, Torrensville.
(vi)On 8 February 1994, in the Adelaide Magistrates Court, Matthew Cannell was convicted of the offences committed on 26 November 1993.
(vii)As at 14 October 1994 the Victorian Police records disclosed two Victorian addresses for Matthew Cannell.[58]
(viii)For the period 1 September 1993 to 1 December 1993, Centrelink records disclosed just a single Victorian bank account for Matthew Cannell; a CBA account at its Corio branch (post code 3214).
(ix)For the financial year ending 30 June 1994 Centrelink records disclosed two Victorian addresses and one South Australian address for Matthew Cannell, the latter being 41/B Shierlaw Street, Richmond 5033. In this respect there had been a change, insofar as the financial year ending 30 June 1993 was concerned, from five Victorian addresses (only one of which – Minyip Road – was common to the two years) and a different South Australian address, 62 Whitmore Square, Adelaide 5000. The defence submitted that significant weight should be accorded to the existence of this Whitmore Square address because of its very close proximity to PM’s house at 219A Wright Street. However, it cannot assist the defence in the way it has contended. Something occurred whereby the 1993 financial year addresses, including 62 Whitmore Square, were removed from the Centrelink records and replaced by the 1994 financial year[59] addresses, including the new address of Shierlaw Street, Richmond. As such it is not easy to infer that Matthew Cannell was residing in 62 Whitmore Square in October 1993. In any event, the fact that in October 1993, Matthew Cannell may have been residing at Shierlaw Street, Richmond rather than Whitmore Square (if either) would still permit the conclusion that it is a reasonable possibility that he was in a position to be in Adelaide and to obtain access to PM’s house on or about 12 October 1993.
[54] Exhibit P14.
[55] Exhibit P38.
[56] Exhibit P25.
[57] Exhibits P31 and P38.
[58] Exhibit P38.
[59] The year in which the incident with PM occurred.
Ultimately, I infer that, prior to 1993, the accused had become familiar with and had spent time in South Australia and, in particular, in Adelaide and that, during the period August to November 1993, the accused was frequently present, if not mainly resident, in South Australia including Adelaide.
As far as the brother, Matthew Cannell, is concerned there is very little evidence concerning his whereabouts during and around October 1993. I remind myself again that there is no onus on the defence to prove anything at all. In any event, on the evidence available, I accept it to be a reasonable possibility that, as at or about 12 October 1993, Matthew Cannell was physically capable of being present at 219A Wright Street. Indeed, with modern means of transport I would make this finding even if it were the case that Matthew Cannell was living interstate at the time.
Nevertheless, on the evidence available to the court, the likelihood that the accused was present in Adelaide on and around 12 October 1993 is greater than is the likelihood that Matthew Cannell was present at that time. The only evidence that potentially links Matthew Cannell with presence in South Australia as opposed to Victoria, at or near the relevant time, is the Shierlaw Street, Richmond address recorded by Centrelink for the 1993/1994 financial year. However, this is to be viewed in the light of Centrelink recording just the one Victorian bank account for the period 1 September 1993 to 1 December 1993. The only evidence directly indicating actual presence of Matthew Cannell in this state is that relating to offending and court appearances on and after 26 November 1993.[60]
[60] There were assertions by the accused during phone conversations with his brother (discussed further below) that his brother was in Adelaide at or about the time of the alleged offending. However, the time frames referred to were very vague.
Evidence and findings concerning the shoe impressions
Two statements[61] signed by Dr Sara Jones, a registered podiatrist, were tendered by the prosecution and by consent. I am satisfied that Dr Jones is sufficiently qualified and experienced to make the examinations and proffer the opinions set out in the two statements. She undertook a comparison of the shoe impressions, as photographed by Mr Hammond, with photographs of weight bearing impressions of both feet of the accused. This comparison had regard to size and shape. In Dr Jones’ opinion it would be possible for the feet of the accused to fit into shoes of the size of the shoe impressions observed by Mr Hammond.
[61] Dated 7 March 2011 and 2 May 2012.
Dr Jones was unable to give an opinion as to the size of shoe the accused would wear today, essentially because of the removal approximately 30 years ago of shoe size standardisation. Today, nominal shoe sizes vary across different brands of shoe notwithstanding that shoes may be of identical length. However, in Dr Jones’ opinion, the accused’s foot size falls within the normal range of distribution for an adult male living within the Australian population. She estimated that approximately 40% of adult males living in Australia would fall within the same range as the accused.
Exhibit P30 was tendered without objection by the defence. It comprises one of the footprint impressions photographed by Mr Hammond with a photograph of an impression of the accused’s bare foot superimposed. Dr Jones was not asked to comment on exhibit P30. Nevertheless, I observe it to demonstrate that the accused’s foot would have fitted snuggly within a shoe such as would have left the impression observed and photographed by Mr Hammond.
In this context reference should be made to exhibits P25 and P26 tendered without objection by the defence.[62] Exhibit P26 is a photograph of the accused extracted by Detective Brevet Sergeant Rivett from police records. It was taken at the Adelaide City Watch House on 5 September 1993 with the accused using the alias “P J Stevens”. According to Mr Rivett,[63] police records indicate that as at 7 October 1993 the accused’s weight was recorded as 80kgs.
[62] Indeed the defence has also sought to place some reliance on these two photographs.
[63] Again, without objection from the defence.
Exhibit P25 is a photograph of the accused’s brother, Matthew Cannell, extracted by Mr Rivett from police records. It was taken at the Adelaide City Watch House on 26 November 1993. According to Mr Rivett, [64] police records indicate that as at 29 November 1993 Matthew Cannell’s weight was recorded as 64kgs. Even without knowing anything about their relative heights, a comparison of the two photographs suggests that, in 1993, Matthew Cannell had a significantly slighter build than did the accused.
[64] Again, without objection from the defence.
However, there is no evidence before the court concerning the relationship, if any, between male body height, weight or build and foot shape and size. As such it is not open to me to draw any inference concerning whether Matthew Cannell’s feet were smaller than, bigger than or the same size as the accused’s and as to the relationship Matthew Cannell’s feet might bear to the shoe impressions photographed by Mr Hammond. To do so would amount to impermissible speculation.
The DNA evidence and findings
Karen Lee – called by the Crown
Ms Lee works as a forensic scientist at the FSC and has done so since August 2003. There was no challenge by the defence to her qualifications or experience generally. I accept that she was well qualified to do the forensic work in this matter and to express the opinions that she did. Ms Lee specialises in sexual assault cases and is now the sexual assault team leader in the biology group at the FSC.
Ms Lee prepared exhibit P7, a chart summarising the method and chronology of the handling of the various DNA samples for this matter obtained by and examined within the FSC. There has been no challenge to this chain of evidence as summarised on P7 and further explained orally by Ms Lee.
As at October 1993 the FSC did not have a searchable DNA database. In all suspicious cases where sperm was found the samples were stored, frozen, awaiting an advance in the available technology that would permit a DNA profile to be obtained. No examination of the swabs obtained from PM was performed in 1993 apart from a microscopy examination.
In 1993, smears from both the high (PM1.B) and low (PM1.C) vaginal swabs were examined by microscope using chemical staining techniques which caused any sperm and epithelial cells to stain a different colour. Epithelial cells are those that line a body cavity, for example, the lining of the vagina is rich in epithelial cells. Any epithelial cells observed on intimate samples taken from PM are most likely to have come from PM, although they may have come from a male penis.
Whole sperm and sperm heads were observed on each smear. Ms Lee described them as at low levels but “good for analysis” (low vaginal swab) and “a reasonable level for analysis” (high level swab). The next phase of the work commenced in 2000. The FSC had recently started to use the Profiler Plus™ Multiplex system of DNA analysis. Old samples in storage, where there was no known suspect, were being re-examined.
According to Ms Lee there are about three billion loci or sites for information on the whole of the human genome. Leaving aside the case of identical twins, an individual’s genome is believed to be unique. However, the DNA analysis offered by Profiler Plus™ relies on only ten of these loci. Because only ten areas, a very small fraction of the whole of the DNA profile, are examined it is possible for two unrelated people to share the same profile across these ten loci although this is expected to be very rare. The ten areas employed by Profiler Plus™ have been chosen in the belief that they are highly discriminating because they are relatively short fragments of DNA and less susceptible to degradation.
Each of the ten loci analysed has two pieces of information, called alleles; one is contributed by the mother and the other by the father. One of the ten loci is called the amelogenin locus. An examination of this locus enables a conclusive determination of the gender of the source of the DNA sample under investigation.
If at any one of the ten loci there is not a match between the DNA profile of a person of interest and the profile of DNA from a scene sample the person of interest can be positively excluded from being the donor or source of the scene sample. However, where there is a match between the DNA profile of a person of interest and a DNA profile obtained from a scene sample at all of the ten loci, it follows that the person of interest cannot be excluded as having been the source or donor of the scene sample. In such a case, there are two possible explanations with respect to which a likelihood ratio or statistical weighting can be given. The first possible explanation is that the DNA profiles match because the person of interest left the sample, that is, is the source of the scene sample DNA. The second possible explanation is that some unknown person, unrelated to the person of interest, happens, by chance, to share the same DNA profile as the person of interest and may have been the source of the scene sample.
Population databases are used to give indications of the relative frequency or prevalence of each allele at each locus within the more general population. These frequencies are used to calculate likelihood ratios for each individually ascertained DNA profile.
Later in the phone conversation the accused told his brother that an investigation, involving a podiatrist, into someone’s footprint was underway. The accused volunteered the observation “they can’t match it, it’s not mine, anyway…”. Again, I accept that this observation by the accused may be construed as exculpatory in context. However, it remains equivocal in this respect. The accused provides very little information. It is not clear how much he knows about this line of investigation. It may be that, after 18 years or so the accused, if guilty, has very little recollection of the detail of the night – how he gained access and the nature and location of any footprints left behind. On the assumption that the events occurred at night he might not have realised from the outset that he had left footprints. The observation is consistent with a belief in the accused that, whilst he was the rapist, to his knowledge, he did not leave any footprints.
What, if anything, is to be inferred from the telephone conversations about the accused’s state of mind?
I accept the Crown’s submission that it is important and appropriate to consider this series of telephone calls as a whole and not to rely solely on isolated passages of conversation, and notwithstanding that I have extracted some isolated passages in the paragraphs above. As well as what is said by the accused, either by way of volunteered statement or acceptance of or rejection of propositions put by his brother, it is also important to bear in mind what is not said. At no time does the accused ask his brother whether he committed the crime and, if so, whether he might go to the police and “save” the accused. At no time, except at the very end (see later) does the accused tell his brother that he should stay away from the police in his own interest rather than in the accused’s interest.
I have listened to and carefully reviewed the content, context and tone of the accused’s utterances throughout the eight phone calls. I draw the following inferences as to the accused’s state of mind (throughout the period of the phone calls).
(i)The accused was aware that the DNA evidence in the hands of the prosecution supported its case against the accused.
(ii)The accused believed that without access to a DNA sample from his brother, the prosecution would be unable to prove, or, at least would have greater difficulty in proving, that it was either the accused or his brother who committed any offence against PM, beyond reasonable doubt.
(iii)The accused was firmly of the view that the best thing for him in defending the case brought against him would be for his brother and his DNA profile to remain unavailable to the prosecution.
(iv)At no time did the accused believe that his brother, Matthew Cannell, may have been the perpetrator or even have a suspicion of that.
(a)At no time, except once towards the end of the last phone call, did the accused raise the possibility that Matthew Cannell might be regarded as a suspect. He introduced this notion only in the context of final exhortations for Matthew Cannell to stay away at a time when the trial was imminent and Matthew Cannell was expressing difficulties with his staying out of circulation.
(b)Save for (a) above, throughout the conversations, the accused’s expressed concern was that it would be best for his defence if his brother stayed away; not that it would be in any way in his brother’s interest to do so.
(c)Repeatedly during the conversations the accused said “yeah” to and, in my view, expressly adopted his brother’s assertions that it was nothing to do with him, that he knew nothing, that it was the accused’s problem and the like.[88]
(d)On one occasion[89] the accused positively asserted to his brother “You don’t know anything anyway”.
(v)The accused was firmly of the view that access by the prosecution, not to his brother’s evidence, but to his DNA sample, was the only thing that stood between a chance of acquittal and almost certain conviction. “I’m telling you this, if you show up, and I end up getting found guilty… .”[90] Given all that has gone before during their interactions, there was at this point a sense of frustration and desperation in the accused’s exhortations to his brother.
[88] See italicised portions of the conversations above.
[89] During the sixth phone call.
[90] Eighth call.
It is conceivable that the accused, whether or not fully cognisant of the nature and strength of the DNA evidence available to the prosecution at the time of the phone calls, and if innocent, remained bewildered as to why he was being prosecuted for rape. As such, the accused’s behaviour, throughout the phone calls, in desiring to keep his brother away from the prosecuting authorities is not, of itself, necessarily inconsistent with a belief in innocence.
In addition, there are aspects of the phone calls that on one hearing or understanding might be seen as potentially exculpatory. I have specifically referred to some examples. Also, the nature of some of the accused’s utterances, in the first call in particular, such as his attempts to recall where he and his brother were at the, as then understood, relevant time, might be seen as potentially exculpatory, as might the exclamation “… its all bullshit” expressed to the female in the seventh call (no. 2026473). However, all such statements must be viewed in the context that it was not in the accused’s interest to admit anything untoward to his brother and, given that the accused was aware that the calls were being recorded, one would expect the accused, if guilty, to express or imply innocence on occasion. In my view such potentially exculpatory aspects of the phone calls are to be regarded as equivocal in this respect.
However, when consideration is given to the series of phone calls as a whole and to particular propositions either adopted or asserted by the accused, any sense of bewilderment and a genuine belief in innocence are not the inferences I draw about the accused’s state of mind. He was not bewildered about the fact that he was being prosecuted; at no time was there any indication of a belief that some unknown person must have been the perpetrator; the accused plainly and repeatedly accepted that his brother was not involved and knew nothing. The notion that the prosecution was trying to “stitch” the accused up is not to be understood as a belief that the prosecution was intent on convicting an innocent man but rather that it was intent on strengthening its case and removing a gap in its case against the accused, a gap that the accused was intent on exploiting.
I am satisfied that the accused’s behaviour during the phone calls evidences a consciousness of guilt. The potentially exculpatory statements by the accused during the phone calls do not cause me to alter my view in this respect.
None of the inferences as to the accused’s state of mind set out above or even the further inference of consciousness of guilt is an element of the offence of rape to be proved by the Crown or an aspect of any defence to be negated by the Crown, nor is it an indispensible link in the chain of reasoning leading to an inference of guilt.[91] It follows that these various inferences are part of the collection of findings, probative of the ultimate inference argued for by the Crown, the combined strength of which I am required to assess. The law was explained by Vanstone J in R v Wildy[92] (emphasis supplied).
24 I deal first with the suggested requirement that the jury be told it could not use either the evidence of payments or the lack of enquiry about the meaning of abuse unless it were satisfied beyond reasonable doubt both of the conduct and that it demonstrated a consciousness of guilt. In my view that is not the law and directions along those lines would have been incorrect.
25 So much is made clear in Edwards v The Queen. That was a case concerning the availability of what were suggested to be testimonial lies by the appellant as corroboration of the sexual offence of which he was charged and the directions to be given to the jury in relation to the finding of, and use of, the lie. The critical issue was whether the jury had to be satisfied beyond reasonable doubt of the lie and the inference to be drawn from it before acting upon the evidence. It might be expected that there would be more reason to apply some sort of standard of proof to a matter to be used as an item of corroboration, as opposed to some evidence amounting to merely another fact in issue. However, the majority comprising Deane, Dawson and Gaudron JJ found that unless the evidence constituted the only evidence against the accused person – which would be unusual – it did not have to be proved beyond reasonable doubt any more than did the inference. Their Honours said, at 210:
Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.
In a separate dissenting judgment Brennan J similarly observed, at 202-205, that the standard of proof was to be applied to the elements of an offence and not to the evaluation of evidence. McHugh J did not find it necessary to address this issue.
26 In my opinion this principle is of general application. There is no reason why it should not apply to other forms of post-offence conduct, and every reason why it should.
[91] Vide: Shepherd and Cosford and McDonald-Smith above.
[92] [2011] SASCFC 131 at [24] to [26]; Sulan J agreed with her Honour’s reasons. White J in a separate judgment gave reasons to like effect on this issue at [98]-[102]. See also, for example, Theophilus v Police [2011] SASC 135 particularly at [82]-[83] (per Peek J).
Final consideration and conclusion
Defence counsel in her final address made a number of submissions aimed at undermining the prosecution’s circumstantial evidence case. Without being comprehensive they included the following:
(i)Criticisms of the prosecution’s DNA evidence in reliance on the evidence of Professor van Daal;
(ii)Criticisms of and attempted rebuttal of the inferences to be drawn from the telephone conversations as pressed for by the Crown; the defence maintains that the statements by the accused are at best equivocal;
(iii)Challenges to the inferences sought, by the Crown, to be drawn from the 1993 eyewitness accounts, together with submissions to the effect that the evidence of an uninvited intruder and that any sexual intercourse was non-consensual was in each case equivocal;
(iv)Submissions to the effect that the brother, Matthew Cannell, could not be excluded beyond reasonable doubt as the donor of the sperm sample;
(v)Submissions as to the significance to be attached to Dean Morton’s evidence in conjunction with the evidence concerning recorded residential addresses for Matthew Cannell and as to their proximity in space and time with PM’s house and any incident on or about 12 October 1993;
(vi)Submissions to the effect that the person seen by Dean Morton according to the identikit picture he created looked more like Matthew Cannell than the accused in 1993 when regard was had to their respective photographs[93] and certain features of their appearance as recorded in broadly contemporaneous police records;
(vii)Submissions as to the inability of the prosecution to establish beyond reasonable doubt that the accused was in Adelaide itself on or about 12 October 1993;
(viii)Submissions based on the English Court of Criminal appeal decision of R v Watters[94] to the effect that a sibling match likelihood ratio of 29,000 to one, in the circumstances of that case did not provide a sound basis for ordering a retrial following the quashing of a conviction.[95]
[93] Exhibits P25 and P26.
[94] [2000] EWCA Crim 89.
[95] At the first trial the jury convicted when presented with a sibling match likelihood ratio of 267 to one.
I have reviewed defence counsel’s final submissions in the context of all of the evidence. Whilst there is some force to some of the submissions when particular items of evidence are considered in isolation, the defence loses any force when the overall effect of all of the evidence is considered. The defence submissions have not caused me to pause before reaching my ultimate conclusion set out below.
Stripped to the bare essentials, I have before me the following.
(i)My findings concerning the presence of an intruder generally but, in particular, as set out at [71]-[72] above;
(ii)The shoe impressions evidence and my findings to the effect that the accused has not been excluded as having left the shoe impressions and that his foot would fit snuggly into the shoe that would have left one of the impressions;
(iii)The evidence and my findings as to the accused’s more likely proximity to 219A Wright Street in October 1993 as compared with his brother’s potential for proximity;
(iv)The DNA evidence and my findings; and
(v)The evidence of and my findings concerning the phone conversations.
In R v Karger[96] the Chief Justice explained the proper role of and approach to assessing DNA evidence in the context of a circumstantial evidence case.
16 The statistical evidence interpreting the significance of the DNA match is not evidence of the probability that the appellant was the source of the incriminating DNA. To so regard it would be to make an error. However, the statistical evidence interpreting the DNA match is expert evidence that the jury could use in deciding whether it was satisfied beyond reasonable doubt that the appellant was the source of the incriminating DNA. The statistical evidence is undeniably strong evidence pointing to a conclusion that the accused was the source of the incriminating DNA, but is not direct evidence of that fact. And, as is obvious, the statistical evidence must be considered in the light of other evidence in the case.
18 It is also necessary to avoid the so-called prosecutor’s fallacy, if the evidence is to be properly used. Reasoning in the form of that fallacy involves, as I understand it, both the error just identified and an approach which would treat the statistical evidence as proof of guilt, rather than as evidence from which a conclusion on a matter which might in turn point to guilt could be reached.
20 [The expert DNA] evidence was to be treated like any other expert evidence in a criminal trial. It was for the jury to consider the evidence and to decide what significance and weight should be attached to the evidence. The jury were not obliged to act on the evidence. Nor should the jury allow any expert opinion put before them to be used as a substitute for their own satisfaction, to the appropriate degree of proof, of a matter required to be proved as part of the prosecution case. As Mr Wells submitted, proof of a matter, and in particular proof that the incriminating DNA came from the appellant, depended on the jury being actually persuaded of that fact. Proof could not be found in “a mere mechanical comparison of probability independently of any belief in its reality”: Briginshaw v Briginshaw (1938) 60 CLR 339at 361 per Dixon J.
21 The proper approach to the issue of whether the incriminating DNA came from the appellant, and to the issue of guilt of the crime charged, was to treat the statistical evidence as evidence to be considered and weighed along with the other circumstantial evidence, not allowing it to displace or to overwhelm the consideration of all material evidence, but at the same time giving it such weight as the jury thought proper.
[96] (2002) 83 SASR 135 at [16], [18], [20] and [21].
I am satisfied beyond reasonable doubt, as a result of (i), (ii), (iii) and (iv) in [219] above, that the source of the sperm found in PM’s vagina was not a random unknown male unrelated to the accused. The question comes down to whether or not it is a reasonable possibility that the donor was the brother, Matthew Cannell. It cannot be denied that the DNA evidence is central to this issue. I have found the sibling match likelihood ratio of 33,365 to one to be valid, reliable and conservative; albeit it must be considered with caution in the light of the absence of any confidence interval analysis. It is, itself, a very large number in the context of the question being asked – how many of the accused’s brothers randomly chosen from a large enough pool would one expect to see before finding a match with his profile across the thirteen Cofiler™ loci – and is very powerful evidence for the prosecution. In my view, after regularly being exposed to likelihood ratios of “mind boggling”[97] size, such as greater than one billion to one, one needs to be very careful not to view ratios “merely” in the tens of thousands as necessarily unimpressive or unpersuasive. To the extent that the English Court of Criminal Appeal in Watters might have been of this view, I respectfully disagree.
[97] Aytugrul v R [2012] HCA 15.
I take the view that the DNA findings, concerning the sibling match hypotheses, alone are highly probative that the accused was the donor of the sperm found in PM’s vagina. However, these DNA findings, when considered in conjunction with (i), (ii) and (iii) in [219] above, serve to satisfy me beyond reasonable doubt that the accused broke into PM’s house within some relatively short period before 6.30am on 12 October 1993 and had sexual intercourse with PM without her consent and knowingly so or recklessly indifferent thereto. There is nothing said or not said by the accused during the phone calls that has caused me to have any doubt in this respect. On the contrary, the inferences I have drawn concerning the accused’s state of mind have served only to fortify me as to the conclusion, already reached, that the Crown has satisfied the requisite standard of proof.
The inference that the accused is guilty of rape is, for me, irresistible and the only rational inference available from the proved circumstances. I find the accused not guilty of the offence of burglary as charged but guilty of the offence of rape as charged.
Appendix
Reasons for apprehended bias ruling[98]
[98] See [11(vi)] of the reasons for verdict.
At the close of the prosecution case the following exchange occurred.[99]
[99] Transcript 496-497.
HHThat is the close of the Crown case; is that right?
[Prosecuting Counsel] I have to think about that now. I just raised with my learned friend there are some additional agreed facts that she has requested go before your Honour. That is part of the defence case so, on that basis, then that is the close of the prosecution case.
HHYou have called evidence from a lay witness and I expect you will call, is it Professor Van Daal?
[Defence Counsel] Sorry I missed the very first part.
HHYou have called evidence from a lay witness?
[Defence Counsel] Yes I have, Mr Morton.
HHI expect you will be calling evidence from Professor van Daal.
[Defence Counsel] Yes, Professor Van Daal.
HHIt’s rather otiose but I ask whether you intend to adduce further evidence as part of the defence case?
[Defence Counsel] Yes, that’s correct. I believe the video suite has been booked for 10 o’clock on Friday morning. She will give her evidence by way of video from Queensland.
HHHas she been booked for the time we need?
[Defence Counsel] Yes, she is free. At the moment it’s been booked for four hours which we think should be sufficient, and that’s to do with funding and invoicing between the Legal Services and the court that we’ve had to set a time limit, so it’s four hours that’s been booked.
HHThat four hours would include the lunch break, 1 to 2 or no? I just don’t know how it works with respect to Bond, what they’re able to offer us. I assume it will go 10 to 1 and 2 to 3.
[Defence Counsel] Yes, hopefully.
HHAre you calling any other evidence?
[Defence Counsel] No.
HHOnly Professor Van Daal.
[Defence Counsel] Yes.
HHBefore you confirm that let me ask Ms McDonald this question. Will you be suggesting or submitting the potential in this case for a direction in the style of a Weissensteiner direction?
[Prosecuting Counsel] I have to say I haven’t turned my mind to it. I doubt it. I very much doubt it, given everything that follows Mr Weissensteiner suggests that might have been a one-off.
HHYes. I just want to clear that air before Ms Spence confirms her instructions.
[Prosecuting Counsel] I’ll tell Ms Spence very soon if I intend to ask for a Weissensteiner direction but I haven’t asked for one in over a decade.
HHI just wanted to raise that for consideration.
At the next resumption counsel for the defence made her application that I recuse myself from further hearing the trial on the ground of apprehended bias apparent from this exchange. No actual bias was suggested.
Defence counsel reminded me of the test typically applied, that is, whether a fair minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the matter.[100] The apprehension is to be judged objectively and it is to be that of a reasonable observer who is not a lawyer.[101] I gratefully adopt the summary of the relevant principles set out in a recent judgment of this court.[102]
[100] See for example, Johnson v Johnson (2000) 174 ALR 655. The test has been put in other, but similar, terms in other authorities, see Judge Lunn’s Criminal Law South Australia Vol 1 at [380].
[101] R v Eastman (1994) 121 FLR 150.
[102] R v Bowley and Bowley [2012] SADC 53 at [7]-[10] per Brebner DCJ.
7 The relevant principles are well settled. They are to be found in Johnson v Johnson (2000) 201 CLR 488 in the joint reasons of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [11]-[13] where their Honours said:
“ … It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which in this case was said to take the form of prejudgment) is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair minded people reasonably apprehend or suspect that the tribunal has pre-judged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded on the need for public confidence in the judiciary, and is not based purely upon the assessment of some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation… “.”
(emphasis added– citations omitted)
8 The test is thus not one of the whether the judge will not bring an unbiased and unprejudiced mind to the issues that he or she might be called upon to resolve, it is one of whether the judge might not do so.
9 However, the possibility that the judge might not apply an unbiased and impartial mind to the particular case must be real and not remote. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gleeson CJ, McHugh, Gummow and Hayne JJ said at [7]:
“Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that had not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility, real and not remote, not probability.”
10 The application of the principle propounded in Johnson involves two steps. As the majority in Ebner also said at [8]:
“The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First it requires the identification of what is said might lead a judge (or juror) to decide a case other than on its legal or factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”
(emphasis added)
I add to this summary of principles that when a judge does not consider that they are disqualified they have a duty not to disqualify themselves.[103]
[103] Rogerson v Tchia (1993) 113 FLR 436.
The essence of defence counsel’s argument concerned my raising with counsel for the prosecution whether she was contemplating requesting a Weissensteiner direction and the point in time that the exchange took place, that is, prior to completion of the defence case, indeed, before the defence case commenced.[104] Counsel submitted that a lay observer might conclude that, by that time, I had prejudged the matter and, as best I can understand the submission, had “gone behind” and dismissed the proper and lawful approach to the accused’s right to silence. Counsel went on,
… So by raising that question of whether such a direction would be anticipated that could indicate to a lay observer that your Honour may have prejudged one of the facts in issue, that is, whether this DNA profile was deposited by Mr Cannell, and that is only something within his knowledge, and that should be explained by him, or by somebody else.
[104] Apart from the interposition of Dean Morton.
I disagree. I raised the issue with counsel for the prosecution specifically and only by way of enquiry[105] so that defence counsel and the court would know in good time whether the Crown wished to have such an argument. The Crown intimation, whilst not categorical, was strongly against the possibility being raised and there the matter rested.
[105] Transcript 497 at lines 7, 14 and 19.
I very much doubt that a fair minded lay observer (had there been one) would have had any idea of what the exchange was about. As it happened, the exchange was couched in elliptical terms, in my view, likely to be understandable only to a relatively experienced criminal lawyer. Nevertheless, I will assume for present purposes, as defence counsel submitted, that it is the attitude of a fair minded lay observer who would make sufficient enquiry so as to understand the nature of the exchange, that is to be considered.
In my view, such a fair minded lay observer would by then have gained some appreciation of: the manner in which the prosecution had been conducted, to this point, its wholly circumstantial evidence case; the fact that the issues in dispute concerned matters additional to the prosecution’s DNA evidence albeit that the DNA evidence was central to the prosecution case; the extensive cross-examination of the prosecution DNA witnesses and of the points of contention concerning the DNA evidence as by then raised by the defence; and, if I may say, that the trial had been conducted fairly to both sides to this point.
I do not accept that a fair minded lay person might reasonably apprehend that such an enquiry made of the prosecution by me at this state of the trial, indicated that I might not bring an impartial and unprejudiced mind to the resolution of the issues and ultimate question in this trial, nor for that matter, that I was proposing to ignore the accused’s right to silence and all that it entails. There is no logical connection between the matter complained of and “the feared deviation from the course of deciding the case on its merits.”
I accept that my request for an indication as to whether a particular direction might be sought came earlier in the trial than ordinarily occurs. I might have waited until the defence had called all his witnesses and closed his case before having any discussion about possible directions.
Counsel for the prosecution submitted, in response, that in raising the issue at the time I did, I provided the defence with a “forensic advantage” to which it was not entitled – I prefer the term forensic opportunity. In my view, the timing aspect of the complaint does not add anything. A fair minded lay observer would have seen the exchange for what it was – a forensic opportunity afforded to the defence.
It is incumbent on a trial judge to maintain an open mind throughout and to the end of a trial as to what, once all the evidence is in, might be the appropriate directions. Ultimately, after giving both parties an opportunity to be heard, it is a judge’s duty to accept or reject the need for a particular direction. There was nothing about the impugned exchange to cause any doubt that this process was being followed. Even the expression of tentative views by a judge on matters about which the parties would be permitted to make full submissions, ordinarily, is not a basis for apprehended bias.[106] This must be a fortiori where no expression of view is given but only an early indication is sought as to whether a matter might arise.
[106] Concrete Pty Ltd v Parramatta Design Pty Ltd (2006) 231 ALR 663 at 690, and see also Cavaiulo v Tinlans Wines Pty Ltd (2007) SASC 204.
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