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R v Karger

R v Karger

Case [2001] SASC 64 29 March 2001

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R v KARGER
[2001] SASC 64

1................ MULLIGHAN J............ The accused was charged with the murder of Kerryn Jean Ostendorf at her home at Albion Terrace, Campbelltown on 17th January 1998. The case against him was that he gained entry to her house probably in the early hours of the morning of Saturday, 17th January 1998 and strangled her to death with an article of her clothing, a camisole, whilst she was lying face down on her bed.

It is beyond dispute that Ms Ostendorf was murdered by strangulation by ligature and the issue at the trial was whether the accused was the murderer. The time of death cannot be fixed with precision. Dr James, a forensic pathologist, was unable to fix the time of her death. She was last seen alive at about 3.45 am on 17th January 1998 when she drove a friend to his home at Newton, a nearby suburb. Ms Ostendorf was due to attend her grandson’s birthday party at about 2.00 pm. When she did not arrive, her daughter first telephoned her home at about 3.00 pm and did not receive an answer. She thereafter made a number of telephone calls without a response until about 7.45 pm. She and her husband went to the house at Albion Terrace at about 8.00 pm and found Ms Ostendorf’s body.
Obviously she was murdered after about 4.00 am and before about 3.00 pm. She was lying face down on the bed fully clothed. There were some indications of a sexual attack. Her skirt, underpants, blouse and brassiere had been cut and torn at the back so that her back, buttocks and legs were exposed. Her anus was dilated consistent with penetration by a blunt object which could have been a penis, finger or something else. There was no injury to the anus or any sign of semen.
Mr Pearman, a forensic scientist, examined the clothes. The back of her blouse had a vertical tear from the hem to the collar. The hem of the blouse gave the appearance of having been cut. The collar of the blouse had also been cut or torn. There was a second tear at the back of the blouse running parallel to the other tear. The back strap of the bra had been severed. The left waistband and right rear portion of the underpants had been severed by what appeared to be a cut rather than a tear. According to Pearman, this damage gave the appearance of having been caused by a pair of scissors. The rear of the skirt appeared to have been both cut and torn. Pearman expressed the opinion that a pair of scissors may have been used.
Various pairs of scissors were found at Ms Ostendorf’s house after the murder but examination of them did not reveal any adhering fibres, blood or hair. Inside her blouse and near the line of the cut and tear were two stains. One was about one millimetre in diameter and the…

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.

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Details

AGLC: R v Karger [2001] SASC 64
Case: [2001] SASC 64
Decision Date: 29 March 2001

CaseChat Overview and Summary

In the matter of R v Karger, the accused was on trial for the murder of Kerryn Jean Ostendorf. The key issues before the court were the admissibility of evidence concerning a previous sexual incident involving the accused and a former girlfriend, and the admissibility of DNA profiling evidence. The court ruled that the evidence of the previous sexual incident was inadmissible as it did not demonstrate a relevant sexual appetite or inclination of the accused. Regarding the DNA evidence, the court found that the Quadruplex and Profiler Plus systems for DNA analysis were reliable and accepted by the scientific community. The court also found that the forensic scientist, Mr Pearman, had sufficient expertise to use these systems and interpret the results. The court admitted the DNA evidence, including the match probability of one in over 90 billion, and the use of population genetics and statistics to give weight to the DNA evidence. The court concluded that the evidence was admissible and that there was no reason to exclude it in the exercise of discretion.

Orders