R v Smith

[1995] QCA 501

IN THE COURT OF APPEAL [1995] QCA 501

[1995] QCA

SUPREME COURT OF QUEENSLAND

C.A. No. 198 of 1995

Brisbane

Before Macrossan C.J.

McPherson J.A.

Helman J.

[R. v. Smith]

T H E Q U E E N

v.

KELVIN JOHN SMITH

(Applicant)

Macrossan C.J. McPherson J.A. Helman J.

Judgment delivered 14/11/95

Reasons for judgment by the Court

APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO
APPEAL AGAINST SENTENCE REFUSED.

CATCHWORDS CRIMINAL LAW - INDECENT ASSAULT - RAPE - CORROBORATION - Whether corroborative evidence confirmed the testimony of the complainant in a material particular - Whether expert evidence gave a deceptive appearance of scientific accuracy to a case that was weak, or bolstered evidence that was flawed - Whether sentence is manifestly excessive.

Counsel:	D.J. Richards for the appellant L. Clare for the respondent
Solicitors:	Legal Aid Office for the appellant

Queensland Director of Public Prosecutions for the respondent

Hearing Date:  27 July 1995

REASONS FOR JUDGMENT OF THE COURT

Judgment delivered the 14th day of November 1995

The appellant was convicted of indecent assault and rape and sentenced to imprisonment for seven years. The complainant was an acquaintance of the appellant and a woman named Emily with whom he lived in a two bed-roomed house at 32 Camp Street, Aitkenvale. They all had a common interest in CB radio, and the complainant used to visit them at that address. Sometimes both of them were there. On occasions only Emily was there when the complainant visited, or only the appellant. She would sometimes stay and talk to him.

On Sunday 10 October 1993, the complainant called at the house at about 7.30 p.m. Emily was not at home, but the complainant stayed and talked to the appellant. They began drinking wine, of which the complainant consumed a considerable quantity. After she had cooked something to eat, and they had eaten it, she said she was going home. It was then about midnight or later. The appellant said "You've been drinking. I'm not going to let you go home". There was a struggle. He picked her up in a fireman's lift over his shoulder, took her into the main bedroom, and threw her on the double bed. Despite her resistance, he pulled off one leg of her slacks and of her underpants and put his finger in her vagina, while holding his hand over her mouth. Then she felt his penis penetrating her vagina.

Afterwards, the complainant cycled home, arriving at about 3.00 a.m. She had a shower, and went to bed for a few hours, before making a complaint to her mother about what had happened. They went to the rape crisis centre, and then to the police station. Later that day she was medically examined and swabs were taken.

Some of the complainant's clothing was sent to Brisbane for forensic examination. Mr Cox, who is a forensic scientist with the Department of Health, said he could detect no seminal fluid or spermatozoa on the slides prepared from the swabs taken from the complainant's vagina. However, he found very extensive seminal stains in the low fork area of her underpants, and a weak stain in the low fork of the slacks. The stains on the pants reacted strongly to tests for seminal fluid. However, contrary to his expectations, Mr Cox did not find any spermatozoa in the seminal stains. This happens, he said, "not very often" with such a large quantity of seminal fluid, which was why he did further tests to confirm it was semen. In the course of his duties he does many such tests every year. The normal assumption in a case like this was, he said, that the semen came from an aspermic male, who produced seminal fluid but no sperm. Mr Cox also tested a bed sheet provided to him, and at one place on it came up with a strong presumptive screening test for semen, but again could find no spermatozoa in association with it.

The bed sheet came from the bed in the main bedroom of the house at 32 Camp Street, where police executed a search warrant shortly after 10 a.m. on 11 October 1992. In the interview which followed, the appellant agreed that the sheet came from "my bed" in the house and was the one the police had taken from that bed. He admitted that the complainant had been there the night before, but denied he had had sexual intercourse with her, or that anything sexual had happened between them. As far as the appellant was aware, the complainant had never been into the bedroom at all, and certainly not with him. The transcript of the record of interview was admitted in evidence at the trial. The appellant himself did not give evidence.

The case presented by the prosecution was therefore one in which the complainant said she had been raped by the appellant in the bedroom, but he denied having had sexual intercourse with her, while admitting she had been with him alone in the house during the night. The evidence of Mr Cox concerning the result of the tests he performed on the complainant's underpants, and the seminal staining he found there, tended to confirm her testimony that someone had had sexual intercourse with her. His evidence also strongly suggested that the man in question was aspermic. The presence of the aspermic semen on the bed sheet tended to confirm her evidence that the sexual intercourse she complained of had taken place on the bed in the main bedroom. Cox's evidence of his examination of the bed sheet taken from that bed also suggested that the man in question was aspermic. The appellant had admitted that the bed was his, and that the bed sheet had been taken from it on the morning of 11 October 1993.

The jury were entitled to regard Cox's evidence about the results of forensic testing of the underpants and the bed sheet as corroborative of the complainant's testimony. It made it unlikely that her complaint was false. She said that, before that night, she had not had sexual intercourse for three months. She could not have known when she first made the accusation against the appellant that the forensic results would support her complaint against him. There is nothing to suggest she was aware that the seminal stains on her clothing and on the bed sheet would, when tested, be shown to have come from an aspermic man. What Cox said about the bed sheet did not show that the appellant was aspermic, but it did show that someone who had used the bed, which the appellant called "my bed", was aspermic. It is a justifiable inference from all the evidence that no one else, apart from the appellant and Emily, lived in the house or used the main bedroom. The complainant and the appellant were the only ones there on the night in question.

It is not the function of corroboration to prove the prosecution case at a trial for rape, but simply to afford independent evidence tending to confirm the testimony of the complainant in a material particular. Mr Cox's evidence provided strong confirmation of the appellant's account of what had happened. It was submitted, however, that the trial judge had been wrong to admit, as he did, the evidence of another witness. He was Noel Glenn Schaefer.

Dr Schaefer is a gynaecologist practising in Townsville. For the past 10 years his special area of interest and practice has been in-vitro fertilisation, donor insemination, and investigation and treatment of infertile patients. He keeps himself informed on the subject by attending conferences, and reading textbooks and articles in journals, particularly an international journal entitled Fertility and Sterility, which is published monthly. He is a member of a group of his colleagues who meet four or five times a year.

Dr Schaefer said that the technical name for the condition in which semen was produced without spermatozoa is azoospermia. He has seen no published study, based on sampling of the general population, of the incidence of the condition in the community. However, in practice about 10% of all married couples present to gynaecologists with infertility. In about half of those cases the infertility proves on investigation to be attributable to the male factor. Of those male factor patients about 10% are azoospermic, meaning that they have a diminished quantity or count of sperm, or none at all: the split-up between those two sub-groups is about 90:10. Based on his reading and his experience, Dr Schaefer estimated that one per cent or less of the male population was azoospermic.

On the evidence given by Dr Schaefer, it would follow that, of every 100 married couples presenting, about 10 may be expected to have an infertility problem. Of those 10, the problem will be traceable to male factor infertility in five of them, of whom in turn about 10% (or statistically 0.5 of an individual) may be expected to be azoospermic. That is how the figure of 1% or less is arrived at. Dr Schaefer said they were a "rare group".

It was submitted that, for the purpose of proving the appellant's guilt or of serving as corroboration of the complainant's testimony, there were two deficiencies in the evidence. The first is that the sample on which it was based was confined to married couples seeking gynaecological advice about infertility. However, that consideration would tend only to increase the concentration of azoospermic males in the sample consulting Dr Schaefer and his colleagues, and, correspondingly, to suggest that there were more of them in the community than there really are. That is because the sample would not be diluted by fertile couples, who would have no reason to consult gynaecologists about infertility. The result would be to distort the percentages given in his evidence, but to distort them in a way that would favour the accused in this case.

A more serious complaint about the reliability of the evidence for the purpose it was advanced at the trial was that it took no account of men who were azoospermic because they had undergone vasectomies. It may be expected that they would not consult gynaecologists to find out why they were infertile. Dr Schaefer said that he knew of no statistical information about the percentage of males in the community who had undergone vasectomies; but he acknowledged that nowadays the number of vasectomies exceeded the number of female sterilisations, which was very different from the state of affairs prevailing 10 years ago.

The result is that in the context of the trial the utility of Dr Schaefer's evidence was considerably diminished. The purpose of the prosecution in adducing it was to demonstrate that the azoospermic man who was responsible for the seminal fluid on the bed sheet belonged to a very limited group in the community. It was intended to narrow the range of individuals who might be considered to have committed the offence. The evidence failed to show clearly how limited that class really is because it took no account of the number of males who had undergone a vasectomy. Still, it was better than no evidence at all. Without it, the jury might have been left with the impression that the incidence of naturally azoospermic males in the community is higher than in fact it is.

The vice of the evidence was said to be that it imparted to the figure or percentage (0.5%, or less than 1%) given by Dr Schaefer an element of spurious scientific accuracy and invested them with an appearance of relevance to an issue at the trial which they did not in fact possess. That issue was whether it was the appellant who had had sexual intercourse with the complainant on the bed. The jury was, it was submitted, likely to have been misled by hearing about percentages of less than 1 per cent. The evidence ought, therefore, to have been excluded altogether on the ground that its prejudicial effect outweighed any probative value it might have.

Trial judges ought, of course, to guard against the risk that expert evidence may lend a deceptive appearance of scientific accuracy to a case that is weak, or may bolster evidence that is flawed. The danger is recognised in several reported decisions. The present case is, however, not an instance of that kind. The evidence of the complainant, supported as it was by Mr Cox's testing and results, added up to a strong case for the Crown that it was the appellant who had had sexual intercourse with the complainant on the occasion and on the bed she identified. The evidence of Dr Schaefer went at least so far as to demonstrate that the incidence of azoospermia naturally occurring in males is low. It considerably underrates the intelligence of ordinary members of the community to suppose that they would be incapable of appreciating or allowing for the possibility that the perpetrator of the rape on the complainant belonged to a larger group of males in the community, who were either naturally azoospermic or had undergone a vasectomy, than Dr Schaefer's figure of 1% or less suggested. If the appellant himself was not one of them, it is difficult to account for the presence of aspermic seminal fluid on the sheet of his bed. It seems most unlikely that anyone but the appellant would have been the source of it.

Quite apart from those considerations, the impact of the evidence of Dr Schaefer must, in the end, be assessed in the light of the directions given by the trial judge in his summing up. He instructed the jury that there was evidence that the bed sheet on which the complainant said she was raped contained seminal fluid from an azoospermic person, which, coupled with the evidence that such persons form a relatively small percentage of the population, was capable of confirming or supporting her account of events. His Honour went on:

"Again, you have heard competing submissions about it. Mr Fellows, this morning, submitted to you that, in essence, that evidence was not reliable enough to enable you to confidently act upon it. He made a number of submissions to you. He said to you that you don't really know how the semen, or the seminal fluid got on to the sheet in the accused's house.

He suggested to you that the possibility may exist that Mr Cox has perhaps made some error or that for some other reason there may, in fact, have been spermatozoa present in that seminal stain which was not detected, and moreover he said to you that there is always the possibility that that seminal stain may have been deposited by someone who had had a vasectomy, not necessarily by someone who was aspermic; and the same observation, he submitted to you, in essence, applied to the seminal stain on the complainant's panties. The argument advanced to you for the defence went this way; that you do not know enough about the frequency of aspermic people in the community. Mr Fellows reminded you of the evidence that there is no general statistic in that regard. He said to you that the statistic here is based on the 10 per cent of couples who are said to be infertile and, in any event, the statistic which is being presented here doesn't make, and cannot make, any allowance for vasectomies.

So he said to you, in essence, 'Well, the percentage of people who are aspermic - you could not be satisfied that that percentage is so low as to enable you to confidently act upon this evidence as affording some independent support - corroboration - for the account given by the complainant and that you would not be prepared to so act upon it'. That is the defence contention, members of the jury, in essence.

The learned trial judge then dealt with the submissions of counsel for the Crown that the evidence of Mr Cox was that there were extensive seminal stains on both the relevant garments, and that Mr Cox would have expected to find spermatozoa on such large areas of seminal staining. Referring to counsel's submissions, his Honour continued:

"It is unlikely, said Mr Henry, that he could have been mistaken about any of that, given his experience and expertise. He said to you Dr Schaefer also knew his subject and he suggested to you, or said to you, that his evidence that 10 percent of couples in the community are infertile is that it is in effect the accepted statistical figure for infertility. If you accept his evidence in that regard that in about half of those 10 per cent of cases the cause of the infertility lies with the male and about 90 per cent of those are not because they are azoospermic. So on that basis, says Mr Henry, the percentage could be as low as 1 per cent, leaving aside vasectomized persons who are azoospermic.

But he said to you the Crown argument does not depend upon your accepting that it is as low as 1 per cent. He said to you that the real significance lies in the fact that both samples have the same property. Both samples come from someone who is azoospermic. And he said to you that it is offensive to common sense that it is an extraordinary coincidence, that that should be so. And for that reason, said the Crown, that evidence you would regard as amounting to corroboration of her account. That is the Crown's contention. Now members of the jury it is a matter for you to determine the weight you give to that evidence."

In our respectful opinion his Honour fairly put before the jury the submissions on either side, and did so in such a manner as to highlight the weaknesses of the evidence for the prosecution coming from Dr Schaefer, as well as the limited use to which it could be put in the case. In view of these directions, it is difficult to see how the jury could have been unduly impressed by the evidence of Dr Schaefer or misled into giving it undue weight. Even if its cogency was not great, it is not possible to say that its admission caused the trial to miscarry. It affords no adequate basis for interfering with the verdicts or conviction.

There is also an application for leave to appeal against sentence. The overall sentence of seven years imprisonment for the two offences cannot be considered manifestly excessive. A degree of force was used to carry out the rape even if it inflicted no lasting or even visible physical effects. The appellant took advantage of a woman who was physically less powerful than he, and who was somewhat the worse for drink. She was a friend, and a guest in his house.

He was born on 30 October 1968, and so was almost 25 years of age at the date of the offence in 1993. He has an extensive criminal record involving recorded convictions in every year since 1986. They include numerous instances of breaking, entering and stealing, as well as receiving, dangerous driving, possession of a firearm, and of an offensive weapon, wilful damage, possession of dangerous drugs, and so on. Predictably, he has also committed breaches of the Bail Act and failed to comply with the terms of a probation order.

The appeal against conviction must be dismissed. The application for leave to appeal against sentence is refused.