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 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.
At about 5.20 pm, he heard a knock on the front door. He said that normally his wife would enter the house through the back door, because it was closer to the kitchen. She also had keys to the house. When he answered the door, his wife was there holding three plastic shopping bags. He described what he saw:[1]
[1] T 64-5.
Q.What did you see when you opened that front door.
A.I saw my wife there with three plastic shopping bags – two in one hand and one in the other – and she looked – she was just a mess. Her hair was mussed up. She had no glasses on. She almost collapsed in the doorway and that’s when I put my arms around her and I knew there was something drastically wrong.
Q.I am just going to remind you know in court today you are not allowed to tell us anything your wife said. You need to limit this to your observations, all right.
A.Yes.
Q.When you say ‘she almost collapsed at the door’, can you described to us in as much detail what she actually did.
A.Yes, I opened the door and I could see there was something wrong. I says ‘What’s the matter, Kath?’, but she spoke to me but I can’t say what she said.
Q.No. When you say you could see something was wrong, what was it. What was it about her.
A.She looked hunched up. She was untidy. Her clothes were all in a disarray. Her blouse was sticking out of her jacket. No glasses. She was hunched up and she looked fatigued. She looked exhausted.
Q.Was she crying.
A.She was crying too, yes.
Q.In what way was she crying.
A.Sort of sobs, sobbing, and sort of breathing quickly and I put my arm around her and took her in and sat her on the chair and asked her ‘What’s happened?’.
Q.When you held her in your arms how did she feel at that stage.
A.She slumped in my arms.
Q.You have said that her hair was messed up.
A.Yes.
Q.In what way.
A.Well, when she went out she was all tidy and neat but when she came back it was all over the place. It was like as if she had been in a rugby match or something. It was all tussled and she had – her clothing was all smeared and dirty – not dirty but not like it was when she went out. It was all in a mess, her clothing was all messed up.
He described how her shirt was bunched up and her bra was pushed up around the bustline. He said that her jacket was pushed up. He said there were sort of smear marks on the back of her jacket, and she looked as if she had fallen over. He said she was extremely distressed. He noticed that her lips around her gums were sore. He described looking at the shopping bags and he observed:[2]
A.I took the bags when she dropped them on the floor when I opened the door, I picked them up and just put them to one side. When I went to take them in the back kitchen everything was squashed, the loaf was flattened. The pizza was broken. Because it was a frozen pizza that was all broken. I am not sure of the things she had. Everything was squashed. We threw all of that away. You couldn’t eat all that – anything like that was all – it was ruined.
[2] T 66.
He said that he had never seen his wife so distressed.
He said about 20 to 25 minutes after she had arrived home, he took his wife to the police station at Christies Beach. She had not showered or changed her clothes. She was eventually taken to the Women’s and Children’s Hospital where she was examined by a medical practitioner.
Dr Maiolo examined Mrs Wheldale at about 9.00 pm on 5 June 2004. It is not disputed that Mrs Wheldale was born on 18 December 1938. Dr Maiolo observed bruising in the area of the shoulder blade, some linear marks on the right-hand side of her back, other injuries and abrasions on her back and lower back near her buttock area, and bruises and injuries to her hand and arm. He also observed injuries to Mrs Wheldale’s neck, her left wrist, and to her knees. He observed an abrasion on the inside of Mrs Wheldale’s upper lip. Dr Maiolo was unable to age the bruising, but gave evidence that a number of the abrasions had been sustained within 24 hours of the examination. The doctor also observed what appeared to be dirt in Mrs Wheldale’s pubic hair. He observed that she was a mature woman, and there were no injuries in the vaginal area. Even if non-consensual sexual intercourse had taken place, he would not necessarily expect there to be any injuries in the case of a mature woman who had given birth to a number of children.
Returning to Mr Wheldale, he said that when his wife returned home she was not wearing her glasses. The police returned her glasses the following day. He said that the glasses were smeared and one of the arms was bent. He identified the clothing, including the black trousers which his wife had been wearing at the time that she left to go shopping on the afternoon of 5 June 2004.
Mr Wheldale was shown an object, which is a wooden handled object with three nails protruding through it with black taping around the handle. Mr Wheldale said that he had never seen such an object before, nor had he ever seen his wife in possession of any such object. I will refer to it in more detail later in my reasons.
Mr Wheldale gave his evidence in a forthright manner. Clearly, he was still extremely distressed by the events that took place on 5 June 2004 and by his wife’s death in 2005. I accept his evidence as both honest and accurate. I am satisfied that Mrs Wheldale left home at about 2.30 pm on 5 June 2004 and that she was dressed as he described. I am satisfied that she returned home at about 5.20 pm, that she was extremely distressed, that her clothing was dishevelled, that she had injuries to her body which were consistent with her having been assaulted and pushed to the ground, that her glasses had been knocked off and damaged during the assault.
The evidence of the damaged items in Mrs Wheldale’s shopping bag support the prosecution case that she had been subjected to violent contact, during which time her shopping had been crushed.
Detective Sergeant Woods attended an area of open field to the west of Cardijn College at about 7.25 pm on 5 June 2004. He photographed the area. He found a pair of glasses belonging to Mrs Wheldale in an area adjacent to the lawned area off a path near the oval amongst a number of trees. The glasses were located about 40 to 50 metres from the track. Leading from the track to the area where the glasses were located there was a 15 to 20 degree upward slope. He took photographs of the area, and he also took photographs of injuries to Mrs Wheldale which had been observed by Dr Maiolo. There was undisputed evidence that sunset on 5 June 2004 was at 11 minutes past 5.
There is no dispute that, consequent upon the medical examination and the taking of samples from Mrs Wheldale’s vaginal area, there was semen located in a high vaginal swab and a low vaginal swab and in the labial swab. Further, there was semen found in the inner crotch of the black trousers that she had been wearing that night.
DNA was extracted from the swabs taken from the various vaginal areas of Mrs Wheldale, and from the stain on the inner crotch of the black trousers. This DNA was extracted by Dr Henry, a scientist who works at the Forensic Science Centre in South Australia. Dr Henry is qualified to give evidence about DNA. She prepared three reports which were admitted by consent.
The first, dated 13 February 2008, was a general report. The second, dated 22 May 2009, related to a request to provide a likelihood ratio for two samples for which she had not initially provided a likelihood ratio. The third, dated 25 May 2009, was a further addendum which specifically relates to an examination of the trousers of Mrs Wheldale. Dr Henry provided a composite table, dated 20 April 2010, which contained all the results relevant to the case.
DNA testing of samples involved the polymerase chain reaction (PCR) method of DNA amplification using the Applied Biosystems Profiler Plus™ multiplex kit. The analytical system amplifies DNA at ten distinct sites, or loci, along the DNA chain. The specific loci that are amplified are named D3S1358, vWA, FGA, amelogenin, D8S1179, D21S11, D18S51, D5S818, D13S317 and D7S820. These particular loci are selected because they have been previously identified as areas containing a high level of genetic variability between individuals. From a forensic examination of these particular loci, a specific genetic profile is able to be identified. Genetic variations between individuals within these loci are termed alleles. The high level of genetic variation at these loci is what provides the ability to discriminate between individuals. An examination of the amelogenin locus is able to conclusively determine the gender of the source of the DNA.
A DNA profile taken from an evidence sample is compared to a sample provided by an individual. If the DNA profile taken from an evidence sample does not match the DNA profile of a person, then that individual can be conclusively excluded as being the source of the DNA from the evidence. If the profiles of the evidence sample and an individual do match, then there are two competing possibilities to explain the matching DNA profiles. The first possibility is that the DNA profile match has occurred because the DNA has originated from the person in question. The second possibility is that the DNA match has occurred by chance. That is, that there is someone else in the population who just happens to have the same DNA profile as the person in question. The probability of the evidence (i.e. probability of the sample matching the known or unknown person) given each of these scenarios is calculated using statistical analysis. A population database is used to provide an indication of the relevant prevalence of each of the alleles that were observed in the population. The given ratio of the two probabilities is called the likelihood ratio.
Two different population databases were used to calculate likelihood ratios as the ethnicity of the individual could not be confirmed. The first database, named the Australian Caucasian database, is composed of 18,000 Caucasian individuals from around Australia and the second database, an Aboriginal database, consisted of 659 Aboriginal individuals. Both databases are scientifically valid databases according to scientific standards around the world and are sufficient to produce a statistically valid result. Results are presented from the database that produces the most conservative likelihood ratio value.
Reference samples were taken from the accused and the complainant, Kathleen Wheldale, and her husband Edward Wheldale. These reference samples were then compared with DNA samples that were taken when Mrs Wheldale was examined on the evening of the incident. The samples included a high vaginal swab, low vaginal swab, labial swab, anal swab, and peri-anal swab taken from Mrs Wheldale, as well as a sample taken from a stain present on the inner crotch of the black trousers worn by Mrs Wheldale that afternoon. Mr Wheldale was excluded as a source of the DNA as the samples did not match his DNA profile.
A mixed DNA profile originating from two individuals was obtained from the sperm fraction in the high vaginal swab and low vaginal swab. In regards to the high vaginal swab, the two profiles could be separated based on the contribution of the DNA from each individual. In regards to the low vaginal swab, it was assumed that Mrs Wheldale was a contributor given the nature of the sample. This allowed the profiles to be separated. In both cases, a second profile, which was identified as a male profile, matched the referenced DNA profile of the accused. Given that the profile was already observed in the accused, the likelihood ratio was an estimate of the probability of seeing that profile again just by chance. A likelihood ratio of these matches was calculated as greater than a billion to one in relation to the accused.
A mixed DNA profile originating from two or more individuals was obtained from the sperm fraction in the labial swab. One individual had contributed DNA in a much greater amount to that sample and the DNA profile that came from the major contributor matched the DNA profile of the accused. There was insufficient information to identify the contributor of the other component, however, the DNA profile that could be identified was consistent with the profile of Mrs Wheldale. A likelihood ratio of these matches was calculated as greater than a billion to one in relation to the accused.
A mixed DNA profile originating from at least two individuals was obtained from the anal swab. The DNA profile was consistent with that of Mrs Wheldale, however, there was insufficient information in the DNA profile to identify a second contributor. No likelihood ratio was calculated.
A mixed DNA profile originating from two individuals was obtained from the peri-anal swab. This profile was termed a partial profile, as information was missing at locus D18S51 and D7S820. This indicates that the levels of DNA detected at those loci were below the reporting threshold, however, a sample profile could still be constructed from the remaining loci. The contribution of each individual to the DNA profiles was similar. With the assumption that Mrs Wheldale was a contributor, a remaining male profile that matched the accused was observed. Due to the incomplete sample, a likelihood ratio of these matches was calculated as 122 million to one in relation to the accused.

A DNA profile originating from a single individual was obtained from the sperm fraction in the stain present on the inner crotch of the black trousers worn by Mrs Wheldale. The profile was a male profile that matched the reference DNA profile of the accused. A likelihood ratio of these matches was calculated as greater than a billion to one in relation to the accused.
I accept the evidence of Dr Henry. The evidence is that the DNA profile of the accused matches the DNA profile observed in the scene samples. I also accept the statistical evidence in relation to the likelihood ratios which indicate the likely prevalence of the DNA profile of the accused in the population. Dr Henry’s evidence was not challenged.
Whilst the DNA evidence alone cannot exclude the possibility that the DNA profiles examined in the scene samples may have come from other members of the population, the low likelihood ratios of greater than a billion to one suggest that there could only be a very small number of individuals for which the DNA profiles could have come. The accused is one of them. The question is whether I am satisfied that it was the accused who left the DNA evidence obtained from the sperm taken from Mrs Wheldale, or whether it is possible that it was one of that other small group of men who may share the same DNA characteristics.
In considering the significance of the forensic DNA statistical evidence, I have had regard to the approach of Phillips LJ in the case of R v Doheny and Adams,[3] which was referred to with approval by Gray J in R v Karger:[4]
The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant. The possibility that two of the only 26 men in the United Kingdom with the matching DNA should have been in the vicinity of the crime will seem almost incredible and a comparatively slight nexus between the defendant and the crime, independent of the DNA, is likely to suffice to present an overall picture to the jury that satisfies them of the defendant’s guilt.
The reality is that, provided there is no reason to doubt either the matching data or the statistical conclusion based upon it, the random occurrence ratio deduced from the DNA evidence, when combined with sufficient additional evidence to give it significance, is highly probative …
[3] [1997] 1 Cr App R 369 at 373.
[4] (2002) 83 SASR 135 at [186].
The approach of considering whether the statistical DNA evidence leads to a conclusion that the incriminating DNA came from the defendant was addressed by Doyle CJ in R v Karger:[5]
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.
[5] (2002) 83 SASR 135 at [21].
In 2007, there was a DNA database hit which resulted in the police attending the accused’s home on 4 December 2007 at unit 3, 2 Perry Street, Christies Beach. A search was conducted at the accused’s home and, in a drawer in a chest of drawers located in a bedroom which the accused occupied, the police found a wooden object which they seized. It was a wooden handled object with three nails driven through the wooden handle and black taping around the handle.
It is an agreed fact that, on 6 June 2004, Kathleen Wheldale described an object to Senior Constable Joy Gregory. She described that object in the following way:[6]
…[I]t was like a handle with three or four nails coming out above that. I have never seen one before. So, it might have been a home-made weapon, but I don’t know, because I don’t know … Something like this Like the top of a hand brake. Hand, like the hand brake on a car, Like a … Yep. Like the handle on top a, top of a handle … And it had like, I don’t know if it was three or four nails coming out of it like that. It could have been four, it could have been three. And they looked like nails, but I don’t know if they were nails. But I, I didn’t have, it was about this size.
[6] Statement of Agreed Facts.
Mrs Wheldale drew a diagram to demonstrate what she meant by the description. That diagram was tendered in evidence (Exhibit P1). The object found at the accused’s home (Exhibit P2) was similar to the object drawn by Mrs Wheldale. The object drawn by Mrs Wheldale had four protruding nails. The object found at the accused’s home had three protruding nails. In other respects, it was a strikingly similar object to the one described and drawn by Mrs Wheldale.
The document (Exhibit P1) was admitted on the basis that the coincidence of Mrs Wheldale drawing and describing an object with features similar to the object found at the accused’s home and in his possession is a coincidence that goes beyond credibility. The accused denied knowing or ever having met Mrs Wheldale.
When the accused was interviewed by Detective Clark on 4 December 2007, he agreed that there was an object seized from his house which was generally described as a knuckle duster. Detective Clark asked the accused:[7]
[7] Audio visual record of interview, 4 December 2007.
Q.And it’s a small handle type object with, I think it was three nails protruding out, and we had a conversation about those nails or about those, that knuckle, knuckle buster [sic] at your house. Do you recall that.
A.Yes.
Q.You told me that they belong to someone.
A.Yeah.
Q.Who do they belong to.
A.They belong to another person called John.
Q.What’s John’s last name.
A.Sereso.
Q.Do you know hot [sic] to spell that.
A.No, I don’t. I’m not a very good speller.
Q.All right. Roughly.
A.Nuh, your guess is as good as mine.
Q.All right. How do you, how do you pronounce it.
A.Serito.
DETECTIVE BORGARDT:
Q.ONCER-
DETECTIVE CLARK:
Q.Mm.
DETECTIVE BORGARDT:
Q.TO, but yeah-
DETECTIVE CLARK:
Q.Okay. And I think you said that John made those-
A.Yeah.
Q.He did. When did he make them.
A.Years and years and years ago.
Q.Okay.
A.A long time ago.
Q.What are they for.
A.I don’t know, he just made them, I don’t know- He’s just like me, he likes collecting weaponry stuff and whatnot.
Q.Okay. And how long have you had them for.
A.I’m not too sure, I couldn’t give you an exact time.
Q.Oh, what, years, months, weeks.
A.I don’t know, maybe a year or more, I don’t know, a couple of years. I’m not exactly sure of the exact time he left them at my place so, or left them in my possession.
It is an agreed fact that she described an object which had a number of unique features. It is a rather crudely home-made item. It is a piece of wood which is rounded with three long nails driven through the wood, and the wood is then taped to make an object which can be described as a knuckle duster. It is not an object which would be commonly found, or which is readily available in shops. It has a unique quality about it. It would an unusual coincidence for Mrs Wheldale to describe and draw such an object if she had not seen something similar. That knowledge, coupled with the fact that some three years after the event, the police found an object of that description in a dresser in the accused’s bedroom is evidence which points to the accused as the person who confronted Mrs Wheldale that evening.
When the accused was interviewed, he denied any knowledge of Mrs Wheldale and denied any knowledge of the incident. According to the evidence of Mr Wheldale, Mrs Wheldale had very few friends. She was a person who remained at home most of the time. I conclude that it is improbable that she would have met the accused on any other occasion, or that she would have observed what she described to the police, other than in the course of the events that took place on 5 June 2004.
The evidence is circumstantial evidence which points to the accused as the person who had the weapon when Mrs Wheldale saw it. Mrs Wheldale’s knowledge about an object which is unique in appearance, and the finding of that object at the accused’s home and his admission that he possessed it is evidence from which it can be concluded that Mrs Wheldale’s knowledge and description of the object is probative evidence implicating the accused.[8]
[8] See Anic v The Queen (1993) 68 A Crim R 313, 315; Esposito v R (unreported, Supreme Court of South Australia, Court of Criminal Appeal, Mitchell ACJ, Sangster and Millhouse JJ, 21 July 1983).
I do not treat the evidence as conclusive, but I regard it as circumstantial evidence which points to the identity of the person who accosted Mrs Wheldale that day.
I have not treated the evidence as pointing to or assisting me in determining whether Mrs Wheldale consented to any act of sexual intercourse that day, as there is no evidence that her assailant used the object to threaten or frighten her. However, the fact that she described an object, and the accused had in his possession a similar object, is evidence which, in my view, supports the prosecution contention that the accused is the person who attacked Mrs Wheldale.
When the accused was interviewed by the police, he was living at Unit 3, 2 Perry Street, Christies Beach. He told the police he had been living there for some years. It is not in dispute that a bond was placed on the rental of Unit 3, 2 Perry Street, Christies Beach, by the accused on 27 March 2004. It is also not disputed that, prior to living at Perry Street, he lived at Naples Street, Hackham West. It is also not in dispute that both Naples Street and Perry Street are relatively close to the Colonnades Shopping Centre, and that the accused was familiar with the area. He was asked by the police:[9]
[9] Audio visual record of interview, 4 December 2007.
Q.Okay. Have you ever had sex with your partner on the other side of Colonnades.
A.Which side?
Q.Close to the college.
A.Um yeah, I think I might have, um, had sex, but her, actually near the college, like, you know where it’s got the college here and it’s got a road that’s in front of it-
Q.Yeah.
A.Near where it’s not a grassy area, near there, heading towards um, up Honeypot Road, I think it is.
Q.Sorry, say that again, so near the college, whereabout-
A.Near the college but behind the, where it’s got like a, basketball courts and that, and um, it’s running on near Honeypot Road.
Q.And who did you have sex there with.
A.Um, my partner, but that was close to Honeypot Road though.
Q.Mm hm. Have you ever had an affair with a married woman.
A.Nuh. Well not to my knowledge, I don’t know, that Lisa could have been married as far as I know but I don’t think she was.
Q.Have you ever had sex with an older lady.
A.Nuh.
Q.In her 60s.
A.Nuh.
Q.Never.
A.Never.
Q.Never.
A.Never.
Q.So that’s what we’re trying to work out is, as I said to you before, your DNA has been found-
A.I know, I mean, you’ve told me that and my heart almost jumped plain out of my chest thinking, what the, what the hell, like, I mean, there has to be a plausible explanation for why it’s there, I mean-
Q.Well the only plausible explanation is that you had sex with the woman.
A.Yeah, I, I know what you’re saying there but, again, I did not do that, like, I, I’m not like that, I mean-
A.Okay.
The accused did not give evidence. I draw no inference adverse to the accused because he elected not to give evidence.
Counsels’ submissions
Counsel for the accused submitted that there were hypotheses, other than the conclusion that the accused raped Mrs Wheldale, consistent with his innocence. It was submitted that the wooden object did not belong to the accused and, therefore, that evidence was of little weight in identifying the accused. Further, counsel submitted that the evidence relating to Mr Wheldale’s observations of Mrs Wheldale when she arrived home might be consistent with her having engaged in consensual sexual intercourse. It was submitted that the evidence of her distress does not necessarily support the prosecution case that she engaged in non‑consensual sexual intercourse. Furthermore, the evidence relating to her clothing, her injuries and the damaged goods in her shopping bags could be explained by her having had consensual sexual intercourse and then regretting her conduct subsequently. Further, counsel submitted that it was not without doubt that the injuries might have been sustained in an incident not connected with the occurrence of sexual intercourse.
There was no evidence of forceful penetration. There was no evidence of any defence wounds to suggest that Mrs Wheldale struggled. In those circumstances, counsel submitted that the Court could not be satisfied beyond reasonable doubt that she had been forcefully raped.
Discussion
I reject the submissions of counsel for the accused. The evidence of Mrs Wheldale’s dishevelled appearance, of the injuries to her body and of the results of the medical examination satisfy me beyond reasonable doubt that she had been forcefully attacked by someone as she was returning home at about sunset on 5 June 2004, after having been shopping at the Colonnades Shopping Centre. The evidence of her dishevelled clothing, the evidence of the crushed items in her shopping bag, and the evidence of her damaged glasses points to a violent attack upon her. It is highly improbable that a woman of 62 years of age, who had been married for over 40 years, would engage in consensual sexual intercourse near a walking path close to open field at about 5.00 pm on a Saturday as she was walking home from a shopping centre. I consider the submission that there are explanations other than that Mrs Wheldale was attacked and raped is not sustainable.
I am satisfied beyond reasonable doubt that a person assaulted Mrs Wheldale as she was returning to her home from the Colonnades Shopping Centre.
I am satisfied beyond reasonable doubt that, during the assault upon her that afternoon, vaginal sexual intercourse had taken place, and that her assailant had ejaculated leaving semen inside her vagina and in the area of her vagina. I am satisfied beyond reasonable doubt that the assailant penetrated Mrs Wheldale’s vagina with his penis.
I am satisfied beyond reasonable doubt that Mrs Wheldale was attacked and raped.
Turning to the identify of her assailant. The evidence is that vaginal swabs taken from Mrs Wheldale’s vagina were examined for DNA. There were samples of a high quality taken, and those samples were compared with a DNA sample taken from the accused. The DNA evidence is strong circumstantial evidence pointing to the accused as the person who had sexual intercourse with Mrs Wheldale on the afternoon of 5 June 2004.
Other evidence to support the conclusion that the accused was the assailant is that he lived in the area and was familiar with the area. Having regard to the likelihood ratios in respect of the DNA analyses, the possibility of some person other than the accused living in the area close to the Colonnades Shopping Centre is so remote that I can discount it as reasonably possible.
Further, the evidence that Mrs Wheldale had seen an implement similar to that found at the accused’s home, with the unique characteristics I have earlier described, lends support to the conclusions identifying the accused as the offender.
I am satisfied beyond reasonable doubt that the accused raped Mrs Wheldale on 5 June 2004.
I find the accused guilty.