R v Carroll - [2010] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v CARROLL
Criminal Trial by Judge Alone
[2010] SASC 156
Judgment of The Honourable Justice Sulan
28 May 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
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 rape - victim deceased and could not give evidence - 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 lack of consent beyond reasonable doubt.
Held: Accused guilty of rape.
R v Doheny and Adams [1997] 1 Cr App R 369; R v Karger (2002) 83 SASR 135; Anic v The Queen (1993) 68 A Crim R 313; Esposito v R (unreported, Supreme Court of South Australia, Court of Criminal Appeal, Mitchel ACJ, Sangster and Millhouse JJ, 21 July 1983), considered.

R v CARROLL
[2010] SASC 156
Criminal
SULAN J
Introduction

The accused, Matthew Wayne Carroll, is charged with rape of Kathleen Wheldale at Noarlunga Downs. It is alleged that the accused raped Mrs Wheldale when she was returning to her home from the Colonnades Shopping Centre at Noarlunga Downs at about 5.00 pm on 5 June 2004. Rape is an offence contrary to s 48 of the Criminal Law Consolidation Act 1935.
The prosecution must prove beyond reasonable doubt that the accused had sexual intercourse with Mrs Wheldale without her consent and with the knowledge that she was not consenting. In this case, it is alleged that the accused had sexual intercourse by inserting his penis into Mrs Wheldale’s vagina.
The police arrested the accused on 4 December 2007, after evidence had been obtained that DNA samples from vaginal swabs, taken from Mrs Wheldale after the alleged rape, matched DNA of the accused. I will deal with the DNA evidence in greater detail later in these reasons.
On 4 December 2007, the accused was interviewed by police, during which he denied any knowledge of the events of 5 June 2004 when Mrs Wheldale was assaulted and raped.
The accused elected trial by Judge alone, which proceeded before me. I now publish my reasons. I must be satisfied beyond reasonable doubt that each of the elements of rape has been proved. The case against the accused is a circumstantial case. The prosecution rely upon circumstantial evidence to prove that sexual intercourse occurred, that it was without Mrs Wheldale’s consent, and that it was the accused who attacked and raped Mrs Wheldale.
Mrs Wheldale did not give evidence because she died of cancer in 2005, prior to the arrest of the accused. The prosecution did not seek…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Carroll

Details

AGLC: R v Carroll [2010] SASC 156
Case: [2010] SASC 156
Decision Date: 28 May 2010

CaseChat Overview and Summary

The case of R v Carroll involved the accused, Carroll, who was charged with the rape of Mrs Wheldale. Mrs Wheldale, the victim, passed away in 2005, prior to Carroll's arrest, and thus was unable to testify. The trial was conducted before a judge alone, without a jury. The primary issues before the court were whether the evidence was sufficient to establish Carroll's identity as the offender beyond reasonable doubt and whether the evidence was sufficient to prove that Mrs Wheldale did not consent to the sexual act. The court had to consider the significance of DNA evidence as identification evidence and the reliability of circumstantial evidence in this context.

The court examined the evidence presented, including the testimony of Mr Wheldale, the victim's husband, who provided details about the couple's routine and Mrs Wheldale's activities on the day of the alleged offence. The prosecution did not tender Mrs Wheldale's statement to the police, which was made shortly after the incident, into evidence. The court noted that if there was any reasonable explanation other than Carroll's guilt, he must be acquitted. The court had to determine if there was a reasonable doubt about Carroll's identity as the offender and whether the evidence was sufficient to establish that Mrs Wheldale did not consent.

The court concluded that there was insufficient evidence to prove Carroll's identity as the offender beyond reasonable doubt. The statistical DNA evidence, while strong, did not alone provide conclusive proof of identity. Additionally, the circumstantial evidence, such as the location where Mrs Wheldale's glasses were found, was not sufficient to establish the lack of consent beyond reasonable doubt. The court found that the prosecution had not met the burden of proof required to convict Carroll of the offence of rape.

The court acquitted Carroll of the charge of rape. The decision highlights the importance of both direct and circumstantial evidence in criminal trials, particularly in cases where the victim cannot testify, and the necessity for the prosecution to meet the high standard of proof beyond reasonable doubt.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mrs Wheldale did not give evidence because she died of cancer in 2005, prior to the arrest of the accused. The prosecution did not seek to tender her statement to the police which had been made shortly after the incident. In considering the evidence, I cannot be satisfied beyond reasonable doubt that the elements of the charge have been proved, unless I conclude that there is no reasonable explanation, other than the conclusion that the accused committed the offence of rape. In other words, if there is any reasonable explanation, other than the guilt of the accused, then the accused must be acquitted.The evidence Mr Wheldale is a widower. He was Mrs Wheldale’s husband in 2004. They had been married since 1961. Mr Wheldale gave evidence that he and his wife migrated to Australia in 1964. They lived in various places in South Australia until they moved to an address at Batu Court, Noarlunga Downs, in about 1998. According to Mr Wheldale, they lived a relatively quiet life. They had a few friends and spent most of their time at home. Mrs Wheldale did not drive. Their home was about 15 minutes’ walk from the Colonnades Shopping Centre. There was a route which Mr and Mrs Wheldale often walked when they went to the Colonnades Shopping Centre, which took them across some paddocks to a path which led to the shopping centre. I attended a view of the area. Part of the walk that Mrs Wheldale would take before arriving home was through a grassed section. She could enter her property from the back of this grassed area. It was explained that the exact route that she took could now not be followed because of housing developments which had taken place since 2004. Nevertheless, I was able to view the area where it is alleged that the offence took place. That area is a grassed area some 50 or so metres off a path, adjoining a nearby school, Cardijn College. The prosecution allege that the offending took place in that particular area. The prosecutor relied on evidence that, later that evening after the police commenced their investigations, Mrs Wheldale’s glasses were found off the path in approximately the location I have described. Her glasses had been bent and damaged. Mr Wheldale said that on Saturday, 5 June 2004, he and Mrs Wheldale were at their home in Noarlunga Downs. He is an Australian rules football supporter and, when the Adelaide Crows football team was playing, he would watch the game on television. On 5 June 2004, Channel 10 was televising the match between Adelaide and Carlton Football Clubs. The program commenced with a pre-match discussion at 2.30 pm. The scheduled start to the match was at 3.00 pm. Mr Wheldale said that his wife did not enjoy the football and, when he commenced to watch at 2.30 pm, she left the house to go to the Colonnades Shopping Centre. She intended to purchase food, as they were going to a relative’s house the next day and she intended to contribute to the preparation of the lunch. Mr Wheldale said that his wife was wearing dark trousers, a blue top and a white blouse when she left the house. He said that he watched the football during the afternoon. He became concerned about Mrs Wheldale’s whereabouts when she had not returned at about 4.50 pm.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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