R v Sumner & Sumner

Case [2007] SASC 376

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SUMNER & SUMNER

[2007] SASC 376

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)

2 November 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION

Two defendants convicted of multiple rapes on the one complainant - appeal against convictions by one defendant - whether evidence sufficient to establish that appellant was present and engaged in sexual acts with complainant - whether jury adequately directed concerning DNA evidence - whether jury adequately directed as to evidence led as proof of recent complaint - whether jury properly directed concerning legal elements of guilt by aiding and abetting - whether evidence sufficient for a jury acting reasonably to find the appellant guilty.

Held:  Appeal against convictions dismissed - DNA and other evidence of identification was sufficient to enable a jury acting reasonably to convict the appellant - no misdirection to jury concerning DNA evidence, recent complaint or legal elements of aiding and abetting - no miscarriage of justice.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE

Appeals by Director of Public Prosecutions against sentences imposed by trial judge - first and second respondents found guilty by a jury of five and four counts of rape respectively - each respondent sentenced to imprisonment of five years and six months, with non-parole periods of two years and three months - whether sentences manifestly inadequate - whether sentences so low as to justify interference with discretion of sentencing judge.

Held:  Appeals against sentences allowed - sentences manifestly inadequate - respondents re-sentenced - first respondent sentenced to imprisonment of eight years, to be served cumulatively upon the reduced sentence of imprisonment for one month imposed by the judge in respect of a previously suspended sentence - second respondent sentenced to imprisonment of eight years - non-parole periods of four years fixed in respect of each respondent.

Criminal Law Consoliation Act 1935 (SA) s 353, referred to.
Chamberlain v The Queen [No 2] (1984) SASR 203; R v Coney (1882) 8 QBD 534, applied.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168, discussed.
Chidiac v The Queen (1991) 171 CLR 432; Cleland v The Queen (1982) 151 CLR 1; Giorgianni v The Queen (1985) 156 CLR 473; M v The Queen (1994) 181 CLR 487; R v Phan (2003) 53 NSWLR 480; Randall v The Queen (2004) 146 A Crim R 197; R v Wilton (1981) 28 SASR 362; R v Elliott (2001)…

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AGLC
R v Sumner & Sumner [2007] SASC 376
Case
[2007] SASC 376
Decision Date

CaseChat Overview and Summary

In the case of R v Sumner & Sumner, the Court of Appeal reviewed the convictions and sentences of two respondents, Sumner and Robel, who were found guilty of multiple counts of rape against a single complainant. The second respondent, Sumner, appealed against his conviction, arguing that the DNA evidence was insufficient to support his conviction and that there were misdirections regarding the jury's understanding of the DNA evidence, the recent complaint, and the legal elements of aiding and abetting. The Director of Public Prosecutions also appealed against the sentences imposed by the trial judge, arguing that they were manifestly inadequate given the gravity of the offences.

The court found that the DNA evidence, combined with other evidence presented, was sufficient for a reasonable jury to convict Sumner. The court also determined that there were no misdirections to the jury concerning the DNA evidence, the recent complaint, or the legal elements of aiding and abetting. Consequently, the appeal against Sumner's convictions was dismissed. Regarding the sentences, the court found that the original sentences of five years and six months with non-parole periods of two years and three months, respectively, were manifestly inadequate. The sentences were increased to eight years with non-parole periods of four years for each respondent, to be served cumulatively in Sumner's case.

The court concluded that the jury's verdicts, based on the totality of the evidence, including the DNA evidence and other corroborative evidence, were reasonable and not unsafe or unsatisfactory. The seriousness of the offences, coupled with the impact on the complainant, justified the increased sentences. The court did not find any misdirections or errors in the trial judge's sentencing process, but considered the original sentences to be disproportionately low given the gravity of the crimes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Both the first respondent and Robel gave evidence at the trial (the latter being called by the prosecution). The second respondent did not give evidence and no evidence was led from Michael Smith. It seems that he had not been able to be located at any stage since 5 February 2003. The first respondent admitted engaging in acts of sexual intercourse with the complainant but claimed that it was consensual. The defence advanced on behalf of the second respondent was that the evidence was insufficient to establish that he was one of the two men who had sexual intercourse with the complainant. The jury verdicts indicate that each of those defences was rejected. Appeal Against Convictions by the Second Respondent : the DNA Evidence The first contention of the second respondent on his application for permission to appeal was that the DNA evidence made his convictions unreasonable or, in the alternative, unsafe and unsatisfactory. Samples for the purposes of DNA analysis were taken from the complainant before 1.45 pm on 5 February 2003. The samples included a high vaginal swab and a low vaginal swab. Male sperm was detected in each of those swabs. DNA extracted from the sperm in the high vaginal swab matched that of the first respondent. The DNA matching that of the second respondent was not detected in the high vaginal swab. The analysis of the DNA obtained from the low vaginal swab was a little more complex. The amount of sperm extracted was relatively small and there were difficulties in the laboratory in isolating the sperm cells from epithelial cells. DNA which was extracted could have been either spermal or epithelial in origin. Mr Sobieraj, the forensic scientist, considered that at least three persons had contributed to the DNA extracted from the low vaginal swab. It seemed likely that two of those persons were the complainant and the first respondent.On initial analysis, Mr Sobieraj thought that the second respondent could be excluded as a contributor to the DNA extracted from the low vaginal swab. However, on a revised analysis, he thought that the second respondent could not be excluded as the contributor of the alleles at two of the hypervariable sites. Mr Sobieraj also said that there were alleles at another two of the hypervariable sites which could not be attributed to the complainant or to either of the two respondents. He concluded that there was insufficient information in the entire profile from which to conclude that DNA matching that of the second respondent had been detected in the low vaginal swab. In relation to the possible contribution by a third person to the DNA found in the lower vaginal swab, Mr Sobieraj gave this evidence:Q.Just so I’m clear on this, if you’re assuming [the complainant] and Major Sumner are contributors and Darren Sumner is not a contributor, then it’s possible there is a third person unknown who contributed to this low vaginal swab.A.Yes, that’s a possibility.Q.If you take the assumption that Major Sumner, Darren Sumner and [the complainant] contributed to the sample, then it’s possible there’s a fourth contributor to the sample.A.Yes that’s a possibility.

Decision

Reasons for decision

GRAY J
In all these circumstances, it cannot reasonably be said that the jury was misdirected on this topic.Conclusion on Appeal Against Conviction For the reasons given above, I would refuse permission to appeal against conviction on all grounds.The Appeal Against Sentence As previously noted, the DPP seeks permission to appeal against the sentences of imprisonment of five years and six months with non-parole periods of two years and three months which were imposed on each of the respondents for the rapes. The DPP contends that each of the sentences is manifestly inadequate and disproportionate to the seriousness of the offences involved. The Director did not suggest that the judge had made any error of fact, or overlooked any relevant consideration, or that he had taken into account any irrelevant consideration. It was not suggested that the judge had made an identifiable error of sentencing principle. The submission was simply that the sentences were so low as to warrant the intervention of this Court on a Crown appeal. The verdicts of the jury and the judge’s sentencing remarks indicate that the judge was satisfied that the first respondent required the complainant to perform three acts of fellatio on him, penetrated her anus digitally on one occasion, and had penile-vaginal sexual intercourse on one occasion. The verdicts and the sentencing remarks also indicate that the judge was satisfied that the second respondent digitally penetrated the complainant’s vagina twice and engaged in four acts of penile–vaginal sexual intercourse. The respondents were not, of course, to be sentenced for the uncharged conduct. Nevertheless, the seriousness of their offending was to be assessed in the light of all their conduct involving the complainant. As is to be expected, the rapes have had a significant adverse affect on the complainant. Her Victim Impact Statement gives an indication of the enduring distress and anxiety which she experiences. The complainant’s study plans in 2003 were frustrated and her employment history since has been unsettled. She describes difficulties now in forming appropriate relationships with any young male. The complainant has, from time to time, required a number of anti-anxiety and anti-depressant medications. Both respondents were aged 19 at the time of the offences, and 23 at the time of sentencing. Although identified in photographs by the complainant very shortly after 5 February 2003, they were not charged with the rapes until 24 August 2005. The lapse of approximately two and a half years was not attributable to any conduct on their part. The judge noted that both respondents had been brought up in loving and supportive families. The family of the first respondent was said to be a well respected family within the aboriginal community. The judge accepted that in the period since the offences the first respondent had formed a stable relationship with his partner, and that they were the parents of a two year old daughter. It was obvious that a period of imprisonment would substantially interfere with the first respondent’s ability to care for his partner and daughter at important stages in their lives.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

The submission of Mr Coates, who appeared for the second respondent, was that if, as the complainant said, only two men had had sexual intercourse with her on the beach, the forensic evidence excluded the second respondent as one of these men. First, because it could not be said that any DNA matching that of the second respondent had been detected in the vaginal swabs, and secondly, because the presence of unidentified DNA indicated the involvement of some other male. These considerations should, at the least, have raised a reasonable doubt in the jury’s mind about the involvement of the second respondent. Accordingly, the verdicts of the jury concerning the second respondent should be held to be unreasonable or unsafe.[1][1] M v The Queen (1994) 181 CLR 487; Chidiac v The Queen (1991) 171 CLR 432 at 442-4.Consideration of the Reasonableness of the Jury’s Verdicts The prosecution did not lead identification evidence of a conventional type from the complainant. Instead, it led evidence from the complainant that the men who had had sexual intercourse with her were the two aboriginal men in the group with whom she had earlier socialised. It then relied on other evidence to establish that the first and second respondents were those two men. Although the DNA evidence was important in implicating the first respondent, the prosecution case against the second respondent did not depend upon the DNA evidence derived from the vaginal swabs. Instead, in addition to the complainant’s evidence, the prosecution presented a body of evidence establishing that the second respondent had been on the beach and that he had been a member of the group which engaged with the complainant. This evidence included an admission by the second respondent to a police officer that he had been at Henley Beach; Robel (and the first respondent) said that the second respondent was one of the four men who were in the group socialising with the complainant; DNA located on a beer bottle retrieved from a place on the beach where the group had congregated matched that of the second respondent; and, on the morning of 5 February 2003 at the second respondent’s home, the police noted that a wallet containing the second respondent’s credit card and driver’s licence was wet and contained sand. In addition, there was the evidence of the complainant that there were only two aboriginals in the group and that one had described himself as a footballer. The second respondent was at that time engaged in playing league football. This evidence, if accepted by the jury, was well capable of establishing that the second respondent was one of the two aboriginal men in the group of four. As to the second respondent being involved in acts of sexual intercourse, the jury had in addition the evidence of the first respondent. The first respondent admitted to engaging in sexual intercourse of various kinds with the complainant but said that it was consensual. Of importance to the prosecution case against the second respondent, he described the second respondent as having been present while the complainant performed an act of fellatio on him. The first respondent said that he asked the complainant if the second respondent could join in, and that she had agreed. He then described the second respondent engaging in actions consistent with at least digital penetration by the second respondent of the complainant’s vagina. He also described the second respondent at a later time lying down on the complainant and, on another occasion, lying next to her. The first respondent said that the second respondent was in the sea with the complainant and him. He did not claim that any other male had been present while he was having sexual intercourse with the complainant. Finally, the first respondent said that he and the second respondent had walked home together.