R v Debs
[2007] VSC 168
•4 May 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1426 of 2006
| THE QUEEN |
| v |
| BANDALI MICHAEL DEBS |
---
JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2007 | |
DATE OF RULING: | 4 May 2007 | |
CASE MAY BE CITED AS: | R v Debs | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 168 | |
---
CRIMINAL LAW – Murder trial – No case submission – Circumstantial case – Inferences – Jury would not be acting unreasonably if it considered on the evidence that no reasonable inference consistent with innocence was open – Whether hypothesis consistent with innocence is a question for the jury.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Tinney | Office of Public Prosecutions |
| For the Accused | Mr C. Dane QC with Ms H. Spowart | Victoria Legal Aid |
HIS HONOUR:
The accused man, Bandali Michael Debs, has pleaded not guilty to a charge that on or about 17 June 1997 he murdered Kristy Mary Harty at Upper Beaconsfield. The Crown case is closed.
Mr Dane, Queen’s Counsel, who appears with Ms H Spowart for the accused, has submitted that there is no case to answer and that, therefore, I should direct the jury to acquit the accused.
On the morning of 17 June 1997 the deceased, who was then 18 years of age, left her home in Edwards Street, Dandenong. She was then working in a massage parlour. There is evidence that she was in urgent need of $90 to pay off a debt. During the course of that day there were sightings of a young woman answering Ms Harty’s description on the Princes Highway in Heatherton Road, both west and later east of Dandenong. She was hitchhiking and soliciting sex for money from passing motorists.
On the morning of 18 June 1997 a large pool of blood was found by two women who were walking their dogs on a bush track which leads west off the Beaconsfield‑Emerald Road, Upper Beaconsfield. The pool of blood was approximately 180 metres from the roadway. The police were called. They found nearby in the bush the deceased body of Ms Harty. She had been shot at very close range to the back of her head. Near the pool of blood there was located a fired bullet. The firearms examiner in this case has identified that bullet as a .357 Magnum solid‑lead semi‑wadcutter bullet with a copper wash.
Before her death, the deceased had regularly attended the Dandenong AIDS Support Prevention Unit, from which she obtained safe sex packs. Those packs included a condom and a lubricant and were wrapped in a piece of paper which contained information concerning safe sexual activity. The contents of such a pack were found close to the pool of blood. The condom wrapper had been opened and the condom which had been inside that wrapping was outside it, but it was in an unrolled and unused state.
The deceased was found with her underpants around her ankles. All but the top button of the six buttons on the front of her short skirt were unfastened. Examination of her clothing at the Forensic Science Laboratory revealed spermatozoa with some tails on them on slides derived from vaginal swabs taken from the deceased at autopsy. The rear of the deceased’s underpants contained two stains which tested positive to the presence of spermatozoa on a presumptive test. Those sections were removed and one of them was found to have spermatozoa on examination. Seminal staining was also detected on the rear panel of the deceased’s skirt but no DNA could be extracted from that stain.
Two buccal swabs were taken from the accused in February 2001. DNA analysis was conducted on the vaginal swabs, the sections from the underpants on which spermatozoa had been detected and the accused’s buccal swabs. The DNA profile of the spermatozoa on the vaginal swabs and on the stains on the underpants matched at all ten loci the DNA profile extracted from the buccal swab taken from the accused man.
The evidence of Mr Hall, a forensic scientist, is that the probability of a match between the DNA profile of the spermatozoa taken from the deceased woman and from the underpants and, on the other hand, the DNA profile of a second male, other than the accused man, selected at random from the Victorian Caucasian population would be less than one in 370 billion.
In July 2000 the New South Wales police found a number of weapons at the home of the mother of the accused man in Epping, New South Wales. Those weapons included a .357 Magnum Smith & Wesson revolver which was in a bucket containing a number of firearms buried under the house of the accused’s mother.
In February 2000 the accused had a conversation with his daughter in his home in Narre Warren, which was the subject of a police intercept. The recording of that interview contains an excerpt which the jury would be entitled to accept constitutes an admission by the accused that he had buried firearms under his mother’s house.
In June 2004 the then occupant of the same premises in Epping, New South Wales, found buried in the backyard of that house a quantity of ammunition. That ammunition included sixty‑nine .357 Magnum‑calibre solid‑lead semi‑wadcutter copper‑wash bullets of the same type as the bullet by which the deceased had been killed.
The Crown case is essentially circumstantial. The Crown alleges that the accused man had unprotected sexual intercourse with the deceased on the track at or near the point at which the deceased was killed and that he then shot her in the back of the head.
It is clear that there is sufficient evidence on which the jury might reasonably conclude that in the period of at least 24 hours before the killing the accused man had unprotected sexual intercourse with the deceased. The evidence of the match of the DNA profiles of the vaginal swabs and the stains on the underpants with the accused’s DNA profile and the statistical evidence relating to that match is plainly sufficient to enable a jury to reasonably conclude that the deceased had had sexual intercourse with the accused woman sometime before or close to the time at which she died.
The forensic scientist, Mr Hall, stated that there was some spermatozoa with tails on the microscope slides developed from the vaginal swabs. He stated that the presence of those spermatozoa meant that sexual intercourse would have occurred within 24 hours before death.
As I have noted, the Crown case is that the act of intercourse between the deceased and the accused man occurred at or very close to the point at which she was shot and killed. If the jury were to accept that as the only reasonable inference open available to them, then plainly the jury would conclude that they would be satisfied beyond reasonable doubt that it was the accused man who shot and killed the deceased. Thus the focus of Mr Dane’s submissions to me was on the inference relied on by the Crown, namely that the act of sexual intercourse between the deceased and the accused man occurred at or near the point at which the deceased was shot and killed. Essentially, Mr Dane submitted that it would not be reasonable for the jury to conclude that that was the only reasonable inference available to them in the circumstances; in other words, Mr Dane submitted that on the evidence in this case, no reasonable jury could conclude that there was no other inference consistent with innocence.
Before considering the evidence and the submissions further, it is useful that I first briefly outline the principles which relate to and apply to the question which is before me, namely whether the accused man has a case to answer.
The principles applying to the submission made on behalf of the accused are now well established and are not in dispute in this case. The question which I must determine is not whether, on the evidence, the accused man should be convicted; that, essentially, is the ultimate question of fact for the jury. Rather, the question which I must determine is whether on the evidence adduced by the Crown the accused man could lawfully be convicted. See May v. O’Sullivan[1].
[1](1955) 92 CLR 654 at 658.
Further, the applicable test is not whether a verdict of guilty would be unsafe or unsatisfactory and thus would be set aside on appeal. Even if the Crown case is weak, it must, nevertheless, be left to the jury unless on the evidence the accused man could not be lawfully convicted see R v. Done[2]y; Attorney‑General’s Reference No.1of 1983[3] .
[2](1991) 171 CLR 207 at 215.
[3][1983] 2 VR 410 at 417.
As I have already stated, the Crown case is essentially, and indeed entirely, a circumstantial case. In such a case, the question is not whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence. Such a question is a question of fact for the jury and not the trial judge. The relevant principles were stated by the Full Court of the Supreme Court in Attorney‑General’s Reference No.1 of 1983 to which I have referred. There the Full Court stated:
“The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and, therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude.”
The corollary of that principle is that a trial judge may only direct an acquittal if, on the evidence at the close of the Crown case, he were to conclude that a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt. In other words, the authorities establish that the test in a circumstantial case is whether a reasonable mind (in other words, a reasonable jury) could reach the conclusion that any inference consistent with innocence was not reasonably open on the evidence. Thus in R v. Cengiz[4], Harper AJA stated the relevant test as follows:
“It sometimes happens in a circumstantial case that the evidence is not in dispute but the parties disagree about the inference or inferences which should be drawn from the facts. In such cases the judge must take the case away from the jury if and only if an inference consistent with innocence is not only open on the undisputed evidence but is also an inference which cannot be rationally excluded.”
[4][1998] 3 VR 720 at 735.
Similarly, in Case Stated by DPP (No.2 of 1993)[5] King CJ[6] described the role of the trial judge as follows:
“He is concerned only whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and, therefore, exclude any competing hypothesis as not reasonably open on the evidence.”
[5](1993) 70 A Crim R 323.
[6]At 327.
In a further passage in the same judgment His Honour, on the same page, stated the principles as follows:
“If the case depends on circumstantial evidence and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypothesis as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction.
In a circumstantial case, that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt or, if you put it another way, could not exclude all hypotheses consistent with innocence as not reasonably open on the evidence.”
In applying that test it is important to bear in mind that the drawing of inferences is essentially the province of the jury as the sole judges of the facts. The rationale of the jury system is that it brings into court as judges in the trial 12 ordinary persons who, based on their life experience and on their common sense, make judgments and draw inferences about the facts which are presented to them in evidence. As the High Court observed in R v. Doney at p.214:
“It is the purpose and genius of the jury system that it allows for the ordinary experiences of ordinary people to be brought to bear on questions of fact such as whether particular inferences are reasonably open on the evidence adduced in the trial and accepted by the jury.”
In this context the critical question for me is whether the jury, on the evidence led by the Crown, might reasonably conclude that the only reasonable inference from that evidence is that the act of unprotected sexual intercourse between the accused and the deceased took place at or close to the point at which the deceased was killed and close to the time at which she was shot at that point. In support of that inference the Crown relies on a number of facts which include, but are not limited to, the following: firstly, the state of the deceased’s clothing and, in particular, the fact that her underpants were around her ankles and that the bottom five of the six buttons on the front of her skirt were unfastened; secondly, the finding at the crime scene of the unopened condom packet, the Dandenong Hospital piece of paper and the unopened bag of lubricant close to the point at which the deceased was shot; thirdly, the finding of the unused condom close to the point at which the deceased was shot and killed; fourthly, the subsequent finding in June 2000 of a weapon buried under the accused’s mother’s house in New South Wales consistent with the weapon which was used to shoot the deceased and the later finding of ammunition buried in the backyard of that house which is of the same type by which the deceased was shot; and, fifthly, the absence of any finding on forensic examination of any seminal staining in the crutch of the deceased’s underpants notwithstanding that stains were detected closer to the waistband of the underpants and closer to the right leg band of the underpants.
In respect of the last point, the lack of seminal staining in the crutch of the deceased’s underpants, the Crown led evidence from Mr Hall, the forensic scientist, and Dr Maurice Odell, a forensic physician. In summary, Dr Odell gave evidence as to the processes which occur during sexual intercourse. He stated that initially after ejaculation semen coagulates into a plug. After a period of 10 to 20 minutes it then liquefies within the vagina. Depending on the position of the woman at the time, a substantial portion of that fluid will then flow out of the vagina. If she is wearing underpants, it is expected that the seminal fluid will thus flow into the crutch of the underpants. Ordinarily it would be expected in such an event that semen would also be detectable on the perineum of the woman. However, if the woman is lying down and is in a position so that gravity does not cause the fluid to flow towards the opening of the vagina, then that process may not occur.
Dr Odell expressed the view that the apparent lack of any seminal stain on the crutch of the deceased woman’s underpants was quite a strong indication that the crutch of the underpants had not been in contact with the external genitalia of the deceased at the time when the seminal fluid would otherwise have been flowing out after sexual contact unless the deceased was wearing them when she was lying down in such a manner that the seminal fluid did not flow out of her vagina.
Dr Odell also postulated a number of reasons why there might have been an absence of a finding of any semen on the perineal swab taken at the autopsy. He stated that if the deceased had been in the position where the vagina was tilted such that gravity would not have allowed semen to flow over the perineum, that might be one explanation why there was no semen on the swab. Alternatively, if at that time she was lying face down such that if she had been face down during intercourse, then gravity would not favour the semen flowing over the perineum because the perineum is higher than the vagina in that position. In that connection the Crown relies on the evidence of the pathologist, Dr Burke, that the bullet entered the left side of the rear of the deceased’s head in the parietal region. It exited at the point of her right jaw. On autopsy there was distinct red discoloration around the exit hole which Dr Burke described as a “shored exit injury”. He stated that that indicated that the right side of the deceased’s face was in contact with the ground at the time at which she was shot.
In cross‑examination by Mr Dane, Dr Odell accepted that it was possible that semen might have been deposited in the crotch of the underpants, but not detected on forensic examination. The lack of such detection might be due to technical error. It might also be due to deterioration of any seminal stain because of the action of moisture on that stain. The evidence was that the clothing of the deceased was in a damp condition when it was removed from her body and that it had to be dried before it was lodged for examination with the Forensic Science Laboratory.
Further, Dr Odell also acknowledged that it is possible that the deceased might have worn her underpants incorrectly which might account for the lack of a seminal stain on what would ordinarily be regarded as the crutch of those underpants. Another possibility is that after having had sexual intercourse with the accused, the deceased did not put her underpants on again immediately but wore black tights or other clothing. At least one witness earlier in the day had observed the deceased wearing black tights, but no such item of clothing was found on the body of the deceased or at the scene of the killing.
It is on the basis of that cross‑examination principally that Mr Dane has submitted that there are a number of reasonable possibilities left open on the evidence which are consistent with the act of sexual intercourse between the deceased and the accused man not having occurred at the scene of the crime but elsewhere at a different time within the previous 24 hours. Mr Dane submitted that the only evidence that sexual intercourse between the accused and the deceased occurred at the crime scene is the evidence of Mr Hall as to the lack of a finding of seminal staining in the crutch of the underpants and the evidence of Dr Odell as to the significance of that finding. Mr Dane submitted that all other evidence in the case either militates against the proposition that an act of sexual intercourse occurred at the scene or establishes, at most, that the deceased had done no more than prepare for an act of sexual intercourse at the scene before she was shot in the back of the head without that act of sexual intercourse occurring.
Mr Dane relied on a number of matters as evidence tending against sexual intercourse occurring at the scene. They included the failure of Mr Hall to detect semen at the scene of the killing using the acid phosphatase screening test, the lack of abrasions to the knees of the deceased and the lack of a finding of semen on the perineal swab.
Mr Dane also asserted in argument that the doctors at autopsy did not detect any moisture. However, in my view, the evidence of Dr Wells at p.731 would entitle the jury to consider that the doctors did find some fluid or moisture on or around the vagina at autopsy.
Mr Dane submitted that a number of the circumstances which have been relied on by the Crown as indicating that sexual intercourse took place at the crime scene are susceptible of another reasonable explanation or hypothesis, namely that the deceased had prepared to have, but did not have, sexual intercourse with her killer when he shot her. Those circumstances include the finding of the contents of the open safe sex pack at the scene, the finding of the unused condom and the state of the deceased’s clothing. Thus Mr Dane submitted that the evidence as to the absence of any seminal stain on the crutch of the underpants and the evidence of Dr Odell as to the significance of that absence is critical to the Crown case that the act of sexual intercourse between the accused and the deceased occurred at the scene. Mr Dane argued that that evidence is the only link between the accused man and the scene at the time of the crime.
In particular, Mr Dane submitted that there were two related propositions relevant to that evidence which underlie the Crown case, each of which are critical to the Crown establishing beyond reasonable doubt that the act of sexual intercourse between the accused and the deceased occurred at the crime scene. Those two propositions are, firstly, that semen was not, in fact, deposited on the crutch of the underpants of the deceased after she had had sexual intercourse with the accused and, secondly, that the only reasonable explanation for the absence of that stain is that the deceased did not wear her underpants after having sexual intercourse with the accused because he shot and killed her before she could do so.
Mr Dane submitted that there are a number of explanations accepted by Dr Odell as possibilities why no semen was detected in the crutch of the deceased’s underpants, notwithstanding that semen might have, in fact, been deposited there. He submitted further that there are a number of explanations accepted by Dr Odell as to why no semen might have been deposited in the underpants even if the deceased had worn those underpants after having sexual intercourse with the accused. He submitted that the jury could not reasonably exclude those explanations as being not reasonably open on the facts of the case. He submitted that each explanation thus severed the critical link in the chain of the Crown’s reasoning, namely that the absence of seminal staining in the crutch of the deceased’s underpants is susceptible of only one reasonable explanation, namely that the deceased had sex with the accused at the crime scene.
In response, Mr Tinney submitted that the Crown had presented a strong circumstantial case on which the jury was entitled to be satisfied beyond reasonable doubt of the guilt of the accused. He submitted that all of the circumstantial evidence must be looked at together and that it is the joint and united force of those circumstances taken together upon which the Crown relies.
Mr Tinney thus submitted that on the Crown case the jury would be entitled to infer that the deceased went to the scene of the crime with her killer and that when they went there, both of them contemplated that sexual intercourse would occur at that place. In support of that proposition, Mr Tinney relies on the evidence that the deceased had been offering herself for sex in return for money during the course of the day; that she had been doing so publicly and that, therefore, the jury was entitled to infer that that was how she met the man who ultimately killed her.
Mr Tinney further submitted that the jury would be entitled to accept that the deceased took with her a safe sex pack with intention that its contents be used in the act of sexual intercourse which both parties intended should occur at the crime scene. He submitted that in accordance with that purpose that sex did occur at the scene. He submitted that the jury were entitled to infer that fact from a number of circumstances including the fact that that was the reason why both parties were present at the scene; the finding of the safe sex pack and the condom both in unwrapped conditions; the finding of the condom in an unused condition; the condition of the deceased’s clothing and, in particular, the condition of her skirt and underpants; and, finally, the finding of semen on the vaginal swabs taken from the deceased woman at autopsy.
In this context Mr Tinney submitted that the jury was entitled to reject as fanciful the hypothesis that the person who killed the deceased had, for some reason, sought to deceive her into preparing herself for an act of sexual intercourse and then shot her in the back of the head without having sexual intercourse with her. In this connection Mr Tinney then turned to the evidence which linked the accused man with the person who had had sexual intercourse with the deceased and who had shot and killed her. He pointed out that, on the DNA evidence, the jury would be well entitled to accept that the accused man had had sexual intercourse with the deceased sometime before her death; further, he submitted that the jury would be entitled to conclude that at the time that they had sexual intercourse, the deceased had with her her underpants. That conclusion would be based on the finding of two sperm stains linked to the accused man on the underpants.
Mr Tinney then submitted that if the deceased had her underpants with her at the time she had sexual intercourse with the accused, the jury might infer that there was no reason she would not have put them on after that act was completed unless she was not in a state to do so because she had been shot and killed. Mr Tinney submitted that the evidence is capable of establishing that after the deceased had had sexual intercourse with the accused, the deceased did not put her underpants on again. The jury were entitled to reject as unreasonable the explanations proffered by Mr Dane as to the absence of any detected seminal stain on the crutch of the underpants.
Mr Tinney then submitted that matters such as the absence of seminal staining found on the ground at the scene, the absence of seminal staining on the perineal swab and the lack of abrasions to the knees of the deceased were all capable of a reasonable explanation which are not inconsistent with the proposition that sexual intercourse occurred at the scene.
Finally, Mr Tinney referred to two further circumstances which he submitted buttressed the guilty inference which the Crown contends. They are, firstly, that at 1.37 p.m. on 17 June 1997 the deceased purchased petrol at a petrol station on the Princes Highway at Fountain Gate at such a location which not only put the accused in the general area of the crime scene on the day of the crime but also at a location at which he might have observed or met the deceased while she was soliciting sex. Secondly, Mr Tinney referred to the evidence as to the finding of the firearm and the ammunition at the home of the accused’s mother.
In considering the competing submissions, it is useful first to consider the submissions made by Mr Dane as to the evidence of Mr Hall and Dr Odell relating to the absence of the finding of any seminal stain on the crutch of the deceased’s underpants. As I stated, Mr Dane submitted that that evidence was critical to the Crown case and, therefore, to be satisfied beyond reasonable doubt of the guilt of the accused the jury must be satisfied beyond reasonable doubt as to two propositions: first, that there was, in fact, no semen deposited in the underpants of the deceased after she had had sexual intercourse with the accused and, secondly, that the reason for that absence was that the accused had shot and killed the deceased before she had had the opportunity to put them on again.
For the purposes of this ruling I assume that Mr Dane is correct in submitting that those two matters must be proven beyond reasonable doubt in order for the jury to conclude that it was the accused man who murdered the deceased. It is correct that some possible explanations have been elicited during cross‑examination to the effect that semen may have, in fact, been deposited on the deceased’s underpants, but not detected by Mr Hall when he examined them. Firstly, Mr Hall and Dr Odell referred to the possibility that the failure to detect the seminal stains might have been due to a technical failure in the analysis process. Secondly, Mr Hall stated that because the clothing was moist when it was removed from the deceased, it was possible for any seminal stain to have become degraded by bacterial action before the underpants were analysed by him.
In my view, those concessions by Mr Hall and Dr Odell do not have the effect that the jury would not be entitled to be satisfied beyond reasonable doubt that the reason no semen was detected on the crutch of the underpants was because none had been deposited there. On the evidence, in my view, the jury would not act unreasonably or irrationally if it rejected as reasonably open the two explanations to which I have just referred as to why semen stains were not detected on the crutch of the deceased’s underpants. In my view, such an issue is essentially an issue of fact for the jury. The decision of the jury on that point must depend on the jury’s view of the parts of the evidence of Mr Hall and Dr Odell which have been referred to by both parties in argument before me. I could not at this point conclude that, taking the evidence of those witnesses at their highest, the jury would be acting unreasonably if they were satisfied beyond reasonable doubt that the reason why no seminal stain was found on the crutch of the deceased’s underpants was because no semen had been deposited in that part of her underpants. Although Dr Odell accepted that it was possible for a technical failure to account for the absence of any finding of seminal stain on the crutch of the underpants, he did not elaborate on how likely such a failure was to have occurred. On the other hand, it is relevant that Mr Hall did detect two seminal stains on other parts of the underpants. In that light it is, in my view, essentially a matter for the jury whether they accept as a reasonable possibility the proposition that the failure to detect a seminal stain on the crutch of the underpants was due to a technical failure.
In cross‑examination Dr Odell stated that he did not have sufficient expertise to give an opinion on the extent to which moisture might degrade seminal staining on clothing. Mr Hall, in cross‑examination, stated that the answer to that question depends on a large number of available circumstances to which he referred.
An amount of evidence has been elicited, particularly in cross‑examination, as to the removal of the clothing from the deceased, the drying of that clothing, the storage of it and then its subsequent examination. In my view, in light of that evidence, it is again a matter for the jury whether, considering that evidence, they consider that it is a reasonable possibility that there had, in fact, been a seminal stain deposited on the crutch of the underpants of the deceased after she had had sexual intercourse with the accused, but which, by the time of the examination by Mr Hall, had become so degraded it could not be detected. I do not consider that a jury would be acting irrationally if it considered on the evidence that such a possibility was not reasonably open.
The next question is whether the jury might reasonably exclude as unreasonable the hypotheses proffered on behalf of the accused as to why no semen may have been deposited in the crutch of the deceased’s underpants, even if they had been worn by the deceased after she had had sexual intercourse with the accused. In my view, the question whether those various hypotheses, which were floated and were the subject of cross‑examination, are reasonable is quintessentially a jury question. Thus it is for the jury to determine whether they consider it is a reasonable possibility in the circumstances that after she had had sexual intercourse with the accused, the deceased pulled on her underpants incorrectly in the various manners which were postulated in cross‑examination.
In my view, it would not be irrational for the jury to exclude those hypotheses as not being reasonably open. Likewise, it is, in my view, a matter of fact for the jury whether it is reasonably possible that an act of sexual intercourse occurred between the accused and the deceased sometime before she died and that after that act of sexual intercourse the deceased did not pull on her underpants, but put on some other clothing next to her external genitalia and then later at some other time put on her pants which she wore to the scene of the killing. In this connection I observe that it is open to the jury to conclude that the deceased had her underpants with her when she had sexual intercourse with the accused since those underpants had seminal stains on them which can be linked to the accused. In those circumstances it would not be unreasonable for the jury to exclude the hypotheses proffered on behalf of the accused, namely that the deceased did not put on her underpants for some time after she had had sexual intercourse with the accused, but had put on some other apparel instead.
Thus, in my view, if the evidence of Mr Hall and Dr Odell as to the absence of the seminal staining on the crotch of the deceased’s underpants and the significance of that absence is critical to the Crown case, I do not accept that the jury would be acting unreasonably in being satisfied beyond reasonable doubt, firstly, that no semen had been deposited on the crutch of the underpants after sexual intercourse with the accused and, secondly, that the reason no semen had been so deposited was because the deceased had not put them on again after she had had sex with the accused and before her death.
The Crown case is that the deceased did not wear her underpants after she had had sex with the accused because very shortly after that act of sexual intercourse he shot and killed her. As I stated, the deceased clearly wore her underpants to the scene of the crime. They were found around her ankles and two seminal stains were found on them. The DNA analysis of those stains matched the DNA analysis of the accused’s buccal swabs so as to entitle the jury to infer that it was the accused who was the source of the seminal staining on the deceased’s underpants.
In light of those facts, together with the finding of the unwrapped but unused contents of the safe sex park and the state of the deceased’s clothing, in my view the jury could reasonably conclude that it was reasonable to infer that the act of unprotected sexual intercourse between the deceased and the accused occurred at the crime scene.
Furthermore, in my view, it is open to the jury to reasonably consider that any alternative hypothesis advanced by the accused is not reasonable. In particular, that hypothesis is that the killer of the deceased had deceived the deceased into believing that sexual intercourse would occur at the scene, but that he shot and killed her without that act of sexual intercourse occurring. In my view, it is open to the jury to conclude that any such alternative hypothesis is fanciful and thus not reasonable. In other words, the jury, using their collective wisdom, experience and common sense, would not be acting unreasonably or irrationally if they considered such a proposition to be unreasonable.
As Mr Tinney has pointed out, the jury is entitled to conclude that the deceased and her killer went to the scene with the joint intention of having sexual intercourse there. The unwrapped safe sex pack, the unwrapped condom cover, the unused condom and the state of the deceased’s clothing all powerfully bespeak of the deceased acting in accordance with that intention. It is in that setting that, in my view, the jury might reasonably conclude that the alternative theory floated on behalf of the deceased is unreasonable, namely that for some reason the killer had deceived the deceased into believing that sex was to occur, but that he then shot and killed her.
Finally, Mr Dane relied on matters such as the lack of seminal staining on the vegetation near the crime scene, the lack of semen on the perineum and the lack of abrasions to the knees of the deceased. I do not consider that those factors preclude a jury from reasonably concluding that the only reasonable inference is that the act of sexual intercourse between the deceased and the accused occurred at the scene. Each of those matters are open to a reasonable explanation. It is for the jury to assess those explanations and to determine whether in that light those circumstances do or do not weigh against a finding of guilt beyond reasonable doubt.
Thus, in conclusion, I do not consider that the jury could not lawfully convict the accused man on the evidence before them. In my view, it is open to the jury to reasonably conclude that on the evidence the only reasonable inference is that the deceased had sexual intercourse with the accused at the scene and that the accused then shot and killed her there. Whether the jury reach that conclusion is entirely a matter for them and not for me. However, I do not consider that it would be irrational or unreasonable for them to reach such a conclusion.
Accordingly, I reject the submission that there is no case to answer and I reject the application that I should direct the jury to acquit the accused.
2
0