Rylands v Regina

[2008] NSWCCA 106

Reported Decision: 184 A Crim R 534

New South Wales

Court of Criminal Appeal

CITATION:	RYLANDS v REGINA [2008] NSWCCA 106
HEARING DATE(S):	28 March 2008
JUDGMENT DATE:	23 May 2008
JUDGMENT OF:	Mason P at 1; James J at 111; Hoeben J at 112
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted but appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – Particular offences – offences against the person – other offences against the person – sexual offences – rape and sexual assault – proof and evidence - CRIMINAL LAW – Appeal and new trial and inquiry after conviction – appeal and new trial – appeal against sentence – appeal by convicted persons – applications to reduce sentence – when refused – particular offences – offences against the person – sexual offences – whether sentence unduly harsh and severe – whether failure to take into account offender’s age and good character - EVIDENCE – Admissibility and relevance – opinion evidence – expert opinion – other cases – DNA evidence – where expert gives opinion on DNA matters – Sorbolene cream facilitating transfer of DNA – where expert had no experience with Sorbolene cream and DNA – where evidence alleged to have no scientific basis – where witness alleged to lack specialised knowledge – Evidence Act 1995, s79
LEGISLATION CITED:	Evidence Act 1995 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Clark v Ryan (1960) 103 CLR 486 HG v The Queen [1999] HCA 2, 197 CLR 414 Keller v R [2006] NSWCCA 204 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Middleton v The Queen [2000] WASCA 213, (2000) 114 A Crim R 258 R v Dib (NSWCCA, Meagher JA, Allen and Badgery-Parker JJ, 13 September 1991) R v Girard [2004] NSWCCA 170 R v Grbin [2004] NSWCCA 220 R v Markuleski (2001) 52 NSWLR 82
TEXTS CITED:	“The Art of Advocacy: Character and Skills for the Trial of Cases” (1948) 34 American Bar Association Journal 4 Burnside J, “R v AA Rouse” (2003) 124 Victorian Bar News 55
PARTIES:	Christopher William RYLANDS REGINA
FILE NUMBER(S):	CCA 2007/3074 CCAP
COUNSEL:	Appellant: M C Ramage QC Respondent: L Wells
SOLICITORS:	Appellant: Jeffreys & Associates Respondent: S Kavanagh (Solicitor for Piublic Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 06/61/0066
LOWER COURT JUDICIAL OFFICER:	Freeman DCJ
LOWER COURT DATE OF DECISION:	19 April 2007

CCA 2007/3074

MASON P
JAMES J
HOEBEN J

Friday 23 May 2008
Christopher William RYLANDS v REGINA

Judgment

1 MASON P: The appellant was tried in the District Court before Judge Freeman and a jury on an indictment charging as follows:

Count 1 involved an aggravated indecent assault when the appellant fondled the breasts and genitals of the 15 year old complainant.

Count 2 involved a sexual assault when the appellant engaged in cunnilingus.

Count 3 involved an aggravated indecent assault when the appellant kissed and forced his tongue deeply into the complainant’s throat.

2 The jury returned verdicts of not guilty on counts 1 and 3 and guilty on count 2. The appellant was sentenced to imprisonment of 6 years with a non-parole period of 4 years.

3 The Crown case was that the complainant, a school girl aged 15 years and 9 months, arranged to attend a birthday party for the appellant’s ten year old daughter. The venue was a remote country property normally occupied by the appellant and his daughter. The appellant was aged 55.

4 Several children and at least two other adult males spent the night before the party at the property. It was a “sleep-over” for the children. The complainant said that the appellant gave her 3 or 4 lemon and Vodka Ruskie drinks, and that this was the first time she had had alcohol.

5 The complainant elected to sleep in a bedroom separate from the younger children and she retired there about 11pm or a bit later. She changed into a T-shirt, underpants and pyjama pants.

6 A short time later the appellant came into the room. He asked if the complainant needed anything. She requested a clock and he returned with one. During a conversation that ensued he told her that he used to be a masseur and offered a massage to help her relax. She agreed and he set up a massage table in the bedroom and lit a candle.

7 The complainant gave evidence that the appellant told her that he could not massage her properly with the T-shirt and pyjamas she was wearing. She removed them and lay face down on the table. The appellant started massaging her, using Sorbolene cream. He massaged her shoulders, back, legs and arms and asked her to turn over. She did so and put a towel over her chest.

8 The appellant then started to massage her stomach and legs, then (after she began to get pain in the groin) her groin. After about 5 minutes the appellant’s hand went under her briefs. She told him that that was a little too far and not what she usually got when she had massages in a clinic associated with her mother. The appellant said “I’m sorry”, removed his hand and started massaging her stomach again.

9 The appellant then used his elbow to push her knees out and used his hands to massage her groin. His hands went under her briefs. According to the complainant, at one stage he moved one hand underneath the towel and massaged her breasts while rubbing up and down her “clit”. The complainant said that the appellant was doing that for about 10 minutes. She said that she kept saying, “No, this is really wrong, against the law” and that the appellant said, “Oh no, it’s okay, it’s normal, it’s just to relax you, make you feel good” (T p34). (The alleged rubbing of the breasts and genital area related to count 1 on which the appellant was acquitted.)

10 The complainant gave evidence that the appellant then walked from the side of the table to the end of the table where her legs were. He slid her briefs down. Then, after first using his hands he began to lick her. (This was the allegation of cunnilingus that was the basis of count 2.) He slid her briefs down and licked, sucked and kissed the area outside her vagina. The complainant said that at one stage the tongue “went in a little bit” to her vagina and that the licking and sucking continued for about an hour.

11 The complainant said that she was lying in shock. She was able to say a few words but the appellant didn’t listen to what she was saying. At one stage he told her that he was enjoying it and that he just wanted her to feel good. The complainant was asked if she did anything to stop the appellant and she said, “No I couldn’t do anything, just was laying there in shock. When I get really nervous I can’t move, I go into like a state”. She said that she kept repeating, “You know it’s wrong” (T p35). She said that the appellant did not say anything when she said those words. “The only way I figured for him to stop because I can’t move was to fake an orgy”. She said that by that expression she meant “orgasm” and that she did that by moaning for about 20 seconds. She said that the appellant stopped and stood up and said that he really enjoyed that.

12 The complainant gave evidence that she remembered saying that she wanted to go to bed and that it was wrong. She said that the appellant hugged her and then kissed her (T p36). The “pash” kissing involved him putting his tongue into her mouth and it lasted for about 15 seconds (T p37). (The allegation relating to the tongue kissing related to count 3 on which the appellant was acquitted.)

13 The complainant said that after he kissed her the appellant left the room for a couple of minutes. During that time she got off the massage table, put her shirt and pyjama pants back on and got into bed. When the appellant returned to the room, she told him he could “definitely go to gaol for this”. The appellant said, “I’m sorry, it was really good for me”. She said that the appellant was really happy but that he was sorry he did that and that he didn’t want to go to gaol. The complainant was asked if the appellant was in bed with her at any stage and she said: “Not that I can remember, no. He sat on the bed next to me, but then as we started talking about his going to gaol he left” (T p37). She said that after the appellant left the room she “basically passed out”. When asked if the alcoholic drinks that she had consumed had had any effect she said, “They made me dopey and tired, like I couldn’t move at all, and I was just getting really out of it and sleeping and zonked out” (T p39).

14 The complainant gave evidence that at one stage when she was lying on her stomach being massaged, the appellant’s daughter came into the room briefly and said, “I see you are getting one of dad’s massages” and that she replied, “Yes”.

15 It was put to the complainant in cross-examination that she had made up her allegations and that nothing of a sexual nature had happened in the bedroom. She denied it.

16 The appellant’s daughter gave evidence in the prosecution case that there were about six girls sleeping over at the property. All slept in the living room except the complainant who was in a spare room opposite the bathroom. The daughter got up shortly before 1 am. She saw the candle light in the bedroom, and she spoke to her father for between 10 and 20 minutes. She said that he was massaging the complainant’s shoulders. Later she went to the bathroom and, upon returning, watched her father for about 5 to 10 minutes as he massaged her legs.

17 The complainant said that she did not speak to any of the adults who were at the party the following day because she did not know who to trust. She was expecting to be picked up by her mother at about 2pm. When everybody left the party, at about 4 o’clock, she asked the appellant if she could call her mother to see if she could be picked up. The appellant told her that he had already spoken to her mother and that she couldn’t come to pick her up. Accordingly, she had to stay at the property for another night. On the second night she put a chair up against the door handle so that the appellant couldn’t come in (T p40). The appellant drove her back to her mother’s fiancé’s property the next day, ie the Sunday.

18 When the complainant got back to her mother’s fiancé’s property she telephoned her boyfriend telling him she had been sexually assaulted by the father of one of the girls at the party. The boyfriend corroborated this evidence, stating that she sounded upset. According to him, she told him “that he claimed that he was a qualified masseuse [sic] and asked for her to take off her top and he then proceeded to give her a massage and then told her to turn over and started massaging her upper body, and she told him to stop and he didn’t. He then went on to take off her pants, and I think, I can’t recall the exact words, but she said that he then tried to give her oral sex but she said stop, it’s wrong. I will tell the police”, and he then left her alone.

19 When the complainant’s mother returned home later that afternoon, the complainant showed her diary to her, stating “I can’t trust you again … read this”. The lengthy diary entry was originally dated 30 June 2005 but it had been corrected to 1 July 2005. The complainant gave evidence that she wrote the diary entry on Saturday 2 July 2005. The relevant part reads:

Then he switched convos to how he did a corse in massages n stuff for a few years. He asked if I wanted one very nicely. I couldn’t say no, you know how I am. He told me to get changed. I had my PJ’s on so I just took off my PJ’s, long pants and just wore my PJ short shorts which were underneath and my PJ’s, top I left on. I got up on to the table he had put in my room, layed down, he came in and said you’ll need to take your top of so I can do your back, so he slipped it off while I used the town under me to cover myself up. He got some kind of cream, oil, stuff and massaged my back, legs, arms, neck and shoulders. Then told me to turn over and lye on my back. So I held the towel over my chest, as I turned over and he massaged the front of my legs, tummy, face. He said I will leave the cream here so you can do your boobs and anywhere else you wanted massaged, so I started to have bad thoughts about him. He seemed nice though. He kept going on about massages are just a friendly thing to do for people and that’s it. Bullshit. With him no fucking way. What he was doing was to far, you are not supposed to massage the front as well I don’t think without saying anything. He put his hand underneath the cover towel and covered my tits and he started massaging them. I freaked and couldn’t move. I went like into shock. He finally stopped and went on with my stomach. He said that I’m lucky to have such a beautiful body. I just wanted to get a gun and shoot this fucking sicko in the head and rip all his insides out and feed him to the dogs but I just layed there and said this is relaxing me so much that I’ll just have to go to bed very soon. He ignored me and noticed that my legs were shaking. It was so cold and I was so scared, he grabbed them and said sorry, here, I’ll give you some support so he held my legs up while he kept massaging my stomach. It was so uncomfortable and he was too rough. The joint of my leg up and the top to my hips really started to hurt. I told him and he just then started to massage that which was a bad idea. I should have never of told him cos then he slipped his hands under my short shorts and kept rubbing the joint that was really sore. Then he did my hips. I couldn’t say or do anything I was so cold, scared and in pain that killed like shit. Then he put one hand under the towel at the top of me, massaged them again at the same time started to put his hands down slowly on my short shorts. I said not to go any further. He pulled out but kept doing the top half of me. I now officially hate this guy. A minute later he went back under my short shorts and put his hand right down under. He kept stroking with his fingers and kept up the top half. He said he’d love to kiss me down there. I’m like No, it’s okay, I’m getting really tired I should go to bed now. He said he’s not leaving until you get complete satisfaction. I was beginning to think he was gonna rape me or something. He practically already is even though I said no. I wanted to go to sleep. He just pushed my legs apart and full on started giving me oral sex. I hated it. My leg felt like it was gonna break, the joint was so sore but it didn’t. I felt like my body was filled with continual internal bruising. I said I really should go to bed, I tried to close my legs but he kept pushing against them. I felt helpless like I was so weak I could barely move. He kept going. The only way I could make him stop cos I couldn’t move was by faking an orgasim so he thought that his work was done so he could leave but he didn’t stop until another hour. He finally pulled himself up and lent over me, grabbed me like he was hugging me or something and forced his tongue down my throat. I was putrid. He lifted me up on the bed, he quickly packed the table up while I grabbed some clothes, chucked them on, then before I could bolt he put me back on the bed and took his own clothes off, got on top of me and started kissen me again. He said do you want me to grab a condom? I said No! it’s really okay, I am so tired I can hardly move. You should just go to your own bed!! As soon as I said that I could put him in gaol and he would never see his family again he said I’m so sorry, jumped off me, put his clothes back on and left to his own bedroom. I was so relieved he had finally gone. I found it so disgustingly dirty, rotten, weak, hopeless, sore and so tired, I just wrote all this and I am going to sleep now. He hasn’t come back. (T pp142-144)

20 After the complainant’s mother read the diary she contacted the police. The complainant was interviewed on 4 July and her underpants were given to a police scientific officer.

21 The complainant’s mother gave evidence that she tried on a number of occasions to phone her daughter when she was at the appellant’s property. She spoke to the appellant on each occasion and asked him to have her daughter ring back. This did not occur. At one stage the appellant told her that there had been a change of plans and the complainant would like to stay an extra night.

22 The appellant gave evidence. He said that he assumed the complainant to be somewhere between 16 and 20.

23 He said that he went to the complainant’s bedroom to check if there were enough bed clothes. He got a clock for the complainant. She told him that she had trouble sleeping and that sometimes her mother gave her a massage. He said that he was qualified in massage and she accepted his offer to give her one. He went and got his massage table, some towels, Sorbelene and a candle because there was no light in the room.

24 The complainant took her pyjama pants and T-shirt off and he massaged her back for between 45 and 50 minutes. He told her that if she wanted to roll over he would massage the front of her legs and back of her head. She complained about a really sore joint on the top of her leg and so he commenced massaging the groin.

25 The appellant said that he did not do anything with the complainant’s underpants and that her claim that he had taken them off was incorrect. The massage took about one and a half hours or a little longer and it finished after he had massaged the top of the leg.

26 The appellant said that after he had packed up the massage table the complainant, who had put her pyjamas back on, said that he could lie on the bed and talk to her if he wanted. His trousers were muddy and he removed them after the complainant indicated that that was fine. The appellant said that he lay on the bed speaking to the complainant. He did not touch her sexually at all. He dropped off to sleep, but woke up when the complainant suddenly jumped on top of him. She squashed his testicles and he said “Jesus Christ, what are you doing?” She said: “Oh, please don’t tell my mother”. (The complainant’s evidence on this topic was that she couldn’t remember the appellant having taken off his trousers. She did, however, acknowledge she had told the police on 4 July 2005 that the appellant had taken his clothes off, except his jocks, and that he got under the blankets and started hugging her (T p92).)

27 The appellant said that he spoke to the complainant’s mother twice on the Saturday. She was unable to pick her daughter up and asked him to try to arrange a lift for the complainant. Arrangements were made with one of the men at the party but the complainant responded that she did not want to go. The complainant later declined a lift from another man who was at the property and she elected to stay until the next day when the appellant drove her back to her mother.

28 A significant part of the Crown case was evidence relating to the DNA found in the complainant’s underpants. It was in effect common ground that it was from two sources, the complainant and the appellant. It is far from clear how there was any DNA from the appellant inside the pants on his version of the massage but I do not dwell on this point. The main dispute at trial on this matter was whether the appellant’s DNA came from a rich source, such as saliva, or from a poor source, such as skin. Experts called on both sides debated the possible impact of Sorbolene upon the appellant’s capacity to shed DNA from his hands in the quantity that was found in the underpants. This will be considered in detail when I address the ground of appeal relating to the evidence of the prosecution expert, Dr Neville.

29 It is convenient to address the three grounds of appeal relating to the conviction in reverse order.

Ground 3: The verdict was unreasonable

30 The appellant submits that no jury, properly instructed could, relying on the reliability of the complainant’s evidence, have been satisfied to the requisite standard.

31 The complainant was said to have been an unreliable witness in a number of respects that were developed in detail in written and oral submissions.

32 Having considered the totality of the evidence I am of the view that it was well open to the jury to accept the Crown case. The jury were given proper directions and they had ample opportunity to consider the testimony of the complainant that was adhered to in its substance under cross-examination. The complainant made prompt and consistent complaint to her boyfriend, her mother and the police. The DNA evidence provided significant corroboration of the cunnilingus count. The appellant’s conduct was, by his own admission, highly imprudent and it involved clearly inappropriate conduct towards a vulnerable young person.

33 Most of the points raised by the appellant concern matters of detail that do not strike me as going to essential matters of credit and reliability, and certainly not as destructive of the complainant’s central testimony. I have considered all matters that have been raised. What follows are my responses to the main points.

34 The appellant first submits that unreliability was demonstrated by the complainant’s behaviour after the alleged assaults. She went off to sleep, participated in the birthday party the next day and made no complaint to anyone, adult or child, at the appellant’s property. She is said to have made no effort to get a lift back to her mother.

35 These submissions are far from compelling. The complainant had been affected to a degree by the liquor which the appellant had supplied her. On her account, she had undergone a series of events that had started with an offer of general assistance, progressed to a massage that was innocent in its early physical aspects and then moved to an assault that was overlaid with professions of affection. It is unsurprising that she felt waves of confusion, distrust and anger the morning after. She was several years older than the other girls at the party and so it is unsurprising that she would not have unburdened herself to them. She made prompt complaint as soon as she was able to communicate with her boyfriend and her mother. She had never met any of the men who lived at the appellant’s property or who stayed over for the party. The men whom the appellant suggested might give her a lift home were friends of the appellant and strangers to her before she came to the property. She obviously wanted her mother to pick her up and she was initially prepared to wait until she did. Whether or not the appellant contributed in any way to the delay in this happening is neither here nor there.

36 One of the houseguests was a policeman, but he was a friend of the appellant and the complainant swore that she did not know he was a police officer.

37 The appellant secondly points to aspects of the diary entry that are said to be inconsistent with the complainant’s evidence. Included in this submission were arguments based on inconsistencies in the complainant’s evidence concerning whether the diary was written on the Saturday or the Sunday. Once again these strike me as immaterial points of detail. Nor do I see any weight in the arguments based upon alterations in the diary and the fact that certain portions of the diary entry were not replicated in the complainant’s testimony. The complainant was in the habit of keeping a diary and her entry about this topic was not apparently written for the purpose of forming a police statement. Exaggerations in the course of a painful, and at times angry, stream of consciousness do not strike me as wholly destructive of the complainant’s credibility.

38 Considerable attention was placed on the diary entry stating:

“I swore my head off at him, kicked him, pushed him away.”

39 In cross-examination the complaint agreed that, despite the entry, at no stage did she kick the appellant or push him away. She had attempted to do these things and wished she had done so. The diary was therefore (in her words) an “over-exaggeration” like many things written in the diary (T p90). She also testified that she had in fact sworn at him, “just not a lot” (T p90).

40 The complainant adhered at trial to her evidence that she had resisted the appellant and made it clear to him that she was resisting at the stage where the massage became overtly sexual in nature. If the tone and level of the resistance were exaggerated slightly in the diary written on the morning after this, in my view, was understandable given that the complainant must have felt both confused and angry as she reflected upon what had actually happened. The jury were best placed to assess whether the diary discrepancies (if discrepancies they were) were destructive of trial testimony that was detailed, generally consistent, and consonant with the primary aspects of the complaints made promptly to the boyfriend and the mother.

41 The third matter deserving a particular response is the appellant’s submission that the place and time of the commission of the offences made them inherently unlikely. As to time, the complainant’s testimony was that the licking and sucking went on for about an hour. If this was an accurate time-frame then it may well have occurred at a time when other persons sleeping in the house on the Friday night went past the door of the bedroom on their way to the toilet. As indicated, the appellant’s daughter witnessed part of the massage and spoke to her father while it was taking place.

42 In my view, these matters did not require the jury to reject the prosecution case. After all, the very fact that the massage took place in the candlelit room is common ground. On the appellant’s own version it lasted for about one hour and 40 minutes (T p332). There was ample opportunity for the unwanted intimacy spoken about by the complainant to have occurred unwitnessed by others. The appellant’s daughter said that the door to the room was shut (T p184).

43 The complainant’s evidence about whether she actually spoke to her mother by phone on the Saturday, asking to be picked up, was inconsistent to a degree. The mother’s evidence was that there was no direct contact that day. The complainant’s diary contained a statement that “after the party I rang Mum to say could she please pick me up in 20 minutes. Five minutes later she rang back and said she was too busy.” At the end of the day the complainant agreed with the cross-examiner that she did not speak to her mother on the Saturday. These difficulties with this aspect of the complainant’s account did not require the jury to reject her main testimony.

Ground 2: The verdicts were inconsistent

44 The appellant submits that the verdict of guilty on the second count could not stand with the verdicts of not guilty on the other two counts. All three offences were alleged to have been committed as part of the one exercise and each count depended on the acceptance of the complainant as a truthful and reliable witness beyond reasonable doubt.

45 The summing up contained the standard directions that it was open to the jury to accept any witness in whole or in part. The jury were also instructed of the need to scrutinise the evidence of the complainant carefully because the Crown case depended on acceptance of her testimony.

46 The appellant points to the deficiencies in the complainant’s evidence referred to above. It is submitted that these led the jury not to accept the complainant’s evidence on the first and third count. But if she was to be accepted at all, there was no good reason to distinguish between what she said as to any one of the three offences.

47 I would reject this ground of appeal. In my view, the prosecution case was a fairly strong one with the complainant being effectively corroborated at several points. It was clear that the second count was the most serious offence and it had the additional support of the DNA evidence. The evidence that the complainant was resisting the appellant, and doing so to his knowledge, was also at its strongest with respect to the second count.

48 In addition, the very fact that the sexual offending all happened within the one episode created a situation where the jury may have formed the view that a verdict of guilty on the main count was sufficient to reflect the appellant’s culpability (see R v Markuleski (2001) 52 NSWLR 82 at [75]-[77] per Spigelman CJ, [227]-[230] per Wood CJ at CL).

Ground 1: Errors in relation to the DNA evidence

49 The appellant submitted that the trial miscarried as a result of the admission of evidence given by Ms Neville concerning the significance of the finding of DNA on the complainant’s underpants.

50 The prosecution led evidence from Ms Sharon Neville, a senior forensic biologist employed at the Division of Analytic Laboratories. Ms Neville conducted tests in relation to a sample of DNA taken from the inside crotch area of the underpants, comparing that sample with buccal samples from the complainant and the appellant.

51 Strictly speaking, the appellant could not be excluded as the male contributor to the DNA mixture. In fact, the trial proceeded on the basis that it was, in effect, common ground that his DNA was found, together with that of the complainant, in the underpants.

52 As indicated, the main dispute at trial was whether the appellant’s DNA came from a rich source, such as saliva, or from a poor source, such as skin. The defence case was that the jury could not be satisfied beyond reasonable doubt that the appellant’s DNA was transferred to the complainant’s genital area from his tongue, as distinct from his hands that were performing a massage at least in the vicinity of that part of the complainant’s body.

53 The defence called expert evidence from Dr Brian McDonald who carries on business as DNA Consults. Dr McDonald has a PhD and a degree in pathology. He has extensive experience in DNA, including forensic issues associated with it.

54 At the point in the trial when the prosecutor was about to call Ms Neville as a witness, counsel for the appellant indicated his objection to “certain material” in the report of the witness that had been provided (T p249). That material was said to have “on its face no scientific basis given”.

55 A voir dire examination ensued. No dispute was raised as to Ms Neville’s general qualifications or her experience as a team leader for a group of scientists in a sexual assault unit. Ms Neville had regularly attended international conferences and courses covering the analysis of DNA. She had been involved in DNA analysis for approximately 17 years and had given evidence in criminal proceedings on numerous occasions.

56 Ms Neville said that, given her experience in the laboratory, she would expect to get a good DNA result from saliva, if it was present (T p254). In the present case she had found that the DNA from the male contributor was double the amount of the female contributor. This gave her (T p256):

… a strong indication that that is likely to have come from a good source of DNA, such as perhaps saliva, which in this case was consistent with the allegation of oral intercourse. So it gave me a strong – the levels gave me a strong indication that saliva was a probable source for the DNA from the male individual.

57 When asked by the prosecutor whether, from her experience, the most likely source was from saliva (T p258) “Yes, I believe so. Based on the very large amount of DNA that I have recovered from that area, it is inconsistent with the amount of DNA that I would regularly see associated with somebody perhaps handling an item. Such a large quantity of DNA was recovered, which can be attributed to the male contributor, it’s not consistent in my view, based on the large number of cases that I have seen, to have come from a source such as skin cells.”

58 On my reading of the voir dire transcript, none of this evidence about the quantity of the DNA and the probability of it having come from a rich source such as saliva, was directly challenged. Ms Neville based her conclusions in this regard upon her general knowledge and experience as a biologist expert in DNA and its forensic aspects.

59 What was raised by way of challenge in the voir dire hearing was a particular hypothesis that the presence of Sorbolene cream on the defendant’s hands might have had the effect of facilitating the transfer of DNA from the skin on his hands.

60 Ms Neville had experience in the personal use of Sorbolene cream but she readily admitted that she had no knowledge or experience of it in a laboratory setting (T p258). Pressed both in chief (T pp258-9) and in cross-examination (T pp263-4), she said that she had neither carried out any tests in relation to Sorbolene nor did she know of any scientific literature on the topic. In cross-examination, she conceded that it was possible that Sorbolene was like sweat and that it might increase the amount of DNA transferred. But it was also possible that Sorbolene might reduce the transfer by providing a barrier between the skin surface (and the point of ultimate transfer) (T p264). Her opinion, nevertheless, was that (T p265):

… even if it did increase it, it would have to increase it to such an enormous extent for me to recover the bucket of DNA that I recovered from that underpants … It would have to have had an extraordinary effect on the transfer of DNA because the amount I have obtained from the inside of that underpants is so large, so I have taken it into account. I still believe it is consistent with a source of DNA that is rich such as saliva.

61 Ms Neville conceded that she should not “specifically discuss the effect of Sorbolene because I haven’t seen what the effects of that are” (T p270). She nevertheless responded to the questions of the cross-examiner suggesting that her testimony in the present case was ultimately pure guesswork. Ms Neville denied this. She adhered to her opinion, based on “cases day after day with the same sort of allegations of oral sex, touching, transfer of DNA” (T p270). Ms Neville accepted that she could not give a definitive answer as to whether the effect of the Sorbolene would be to decrease the DNA transfer or to increase it. She gave the following evidence (T p273):

Q. So we just assume that we decrease it?
A. No, we don’t assume that. We can’t give a definitive answer as to whether it increases or decreases it. What I have said or tried to convey is even if the Sorbolene was increasing the transfer of DNA, I still would be surprised to recover such a large amount of DNA from skin transfer.
Q. Why?
A. Even with a facilitator such as Sorbolene or sweat.
Q. But why, you’ve done no experiments?
A. That’s right, because I’m basing it, I’m comparing it to sweat and I have no conceivable reason to think that Sorbolene would increase the DNA transfer to a greater extent than sweat.

62 Judge Freeman ruled that the jury were entitled to hear Ms Neville’s opinion. The nub of his Honour’s reasons was as follows:

However, Miss Neville opined that the saliva was present on another basis, namely, that the quantity of DNA material recovered from the test area was such that it could only have come from, or was highly likely to have come from some rich source of DNA material, such as a body fluid. Blood, semen and nasal discharge are all excluded, leaving, as I understand it, saliva.
Mr Jeffreys seeks to have this opinion excluded on the basis that there is no proven scientific material establishing the effects of Sorbolene cream on the shedding and transference of skin cells, and there is no definitive research into the effect of legitimate massage on the shedding or transfer, and there is no basis in her training or experience which would enable Miss Neville to speak of the possibility of a transfer from the groin of such accumulated skin cells to the inside of the crutch of the underpants by some unknown but conceivable contact or friction. The argument is that Miss Neville simply does not have the qualifications to express an opinion. I am unpersuaded by that. It seems to me that her experience and background do enable her to express an opinion about the likely source of the rich vein of DNA material which she unearthed. She seemed to me to have dealt with the arguments as well as she could in the absence of demonstrated scientific information, but based on her experience, using as an example the amplifying effects of perspiration and so on. I think the jury is entitled to hear her opinion and I propose to allow it.

63 Senior counsel for the appellant submitted that this ruling was in error. The witness lacked “specialised knowledge” on the matter in question (see Evidence Act 1995, s79). The evidence given in the voir dire failed to substantiate that Ms Neville was an expert able to proffer an opinion “wholly or substantially based on [her expert] knowledge” as required by s79 of the Evidence Act as expounded in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, 52 NSWLR 705.

64 This being an appeal against conviction, it is necessary to examine the evidence that the expert actually gave to the jury. At the end of the day, it is that evidence whose admissibility is to be tested in this Court in the context of its impact upon the conviction under challenge.

65 Ms Neville told the jury about her experience as a forensic biologist and gave general evidence about different sources of DNA material.

66 Ms Neville told the jury that both the ratio of DNA as between the male and female contributors and the quantity of DNA recovered in the underpants were significant because (T pp289-290):

… there’s two important things here. One is the fact that the male contributor is double the amount of female, but also the actual amount of DNA itself is a very large quantity of DNA. It’s the sort of quantity of DNA that we recover from body fluids that are rich in DNA, such as blood stains and saliva stains. It’s not the sort of DNA result that we recover from skin cells. So from items that have been handled or even items that have been worn by somebody, I wouldn’t expect to find the level of DNA that I’ve seen here. I could do, but it’s not an expectation. I would expect if to be associated with a body fluid rich in DNA, such as saliva.
…
Q. In your laboratory work have you dealt with cases that involve the transfer of skin cells by touching?
A. Yes, in many cases.
Q. And based on your specialised knowledge and training and experience as a forensic biologist and as a senior forensic biologist, are you able to express a view as to the amount of DNA that you recovered, that is the double amount of DNA recovered, as to its likely source?
A. Yes. In my opinion in this case the DNA that we have recovered from the inside of the underpants is consistent with originating – the female component is consistent with possibly a mixture of skin cells and vaginal fluid and the male component, being double the amount of the female component, is consistent with originating with a source such as saliva.
Q. Now, in coming to that view, had you taken into account whether or not the contributor, the male contributor might be a shedder of cells, skin cells?
A. Yes, I have. We have – people shed skin cells at different rates. We have what we call poor shedders of DNA and good shedders of DNA. So a good shedder is someone who tends to leave more DNA than a poor shedder. They may not necessarily always leave more DNA, but in general terms they have a tendency to leave more. Even with a good shedder of DNA, I still in my opinion, based on the number of cases that I have looked at involving items that have been worn and been touched, this amount that I have recovered here is very large and it would be unusual to be associated even with a very good shedder. A person would need to be an extremely prolific shedder of DNA to result in the enormous quantity of DNA that I have recovered here.

67 Ms Neville told the jury that it was difficult to give a very definitive answer to the question whether Sorbolene cream could have an impact on facilitating or decreasing the transfer of skin cells. She said that there was no published literature on the impact of Sorbolene cream. She accepted that it was possible that the cream, like sweat, might increase the transfer of DNA from skin to an item or to other skin. Alternatively, it was possible that Sorbolene could actually reduce the amount of transfer by forming a barrier between the skin surfaces (T pp291, 292).

68 Ms Neville expressed the belief that the result she obtained in the present case (T p294):

… is inconsistent with originating from skin cells. I’m not ruling that out as a possibility. It is a possibility, but the very great amounts of DNA that I have recovered, and taking into consideration that the male component is double the amount of the female who’s the wearer of the underpants, and the vaginal secretions are present, my overall interpretation of that result is that it’s consistent with originating from saliva, a body fluid that is rich in DNA.

69 Ms Neville resisted the cross-examiner’s invitation to put a percentage on the degree of this consistency beyond stating that she would put the probability ratio higher than 51 to 49 (T p297). She repeated her testimony that what she discovered was in her opinion inconsistent with the result she would get from skin particles “but I would not exclude the possibility it could come from skin particles” (T p297, see also T p298).

70 In re-examination she gave the following evidence (T p316):

Q. And what source would you expect that DNA to come from, to leave that quantity?
A. As I’ve said, I believe it’s consistent with originating from saliva, based on my experience of many similar sort of cases where oral intercourse has occurred and similar testing has been carried out on the inside of underpants, we do tend to recover far greater amounts of DNA when saliva is alleged to have been present. It is typical of the result that I would expect, if saliva was present.

71 The defence expert, Dr McDonald said that Sorbolene “will have the effect of accumulating skin cells… and as a consequence of that, it is then going to, you know, have the opportunity to transfer to anything which it comes in contact with” (T p414). Dr McDonald said that friction between surfaces of skin will cause a greater loss of cells (T p414).

72 Dr McDonald had heard Ms Neville’s evidence about the amount and ratio of DNA found in the complainant’s underpants.

73 Dr McDonald said that the ratio of the male to the female DNA was “not inconsistent with [salivatory] transfer. It’s a large amount of DNA relatively speaking”.

74 However, in Dr McDonald’s view, the problem was that this was not the only explanation. He said that “the action of massage and this friction between two surfaces into a fluid which can accumulate cells has the potential to create a large number of cells” (T p415).

75 Dr McDonald did not suggest any greater knowledge of the capacity of Sorbolene to facilitate the transfer of skin cell DNA than indicated in the passages I have extracted. Not surprisingly he was challenged in cross-examination with the hypothesis that Sorbolene might be expected to reduce the friction between surfaces.

76 Detailed directions were given to assist the jury in resolving the conflict between the two DNA experts. The summing up contained the following (SU 09/02/07 pp11-12):

Ms Neville says, while we are on the subject, very briefly, that such high concentration of the accused’s DNA must come from a high number of cells because each cell has DNA. Skin normally is not a high level conveyor of DNA, if you like, because you do not get a great concentration of skin cells. You get a greater concentration of cells, as Dr McDonald explained, in semen most of all and then blood and then saliva and so on.

So, she says that whatever the source of this DNA was, it was one of the right sources because there is so much of it, “a bucket load” of DNA and she says consequently that is, if you accept that it is saliva, that explains it and if you accept that it is saliva then clearly you would conclude that he had put his mouth where the girl says he put his mouth.

Dr McDonald says, “Look, that is entirely possible but you cannot exclude the other alternative.” You have got to have a reasonable doubt about that hypothesis because there are other ways in which such a high concentration of cells and consequently DNA could have appeared on the inside of this young girls’ pants and one of those is this medium sorbolene cream rich in skin cells because it had accumulated them and held them in suspension.

77 Immediately before and immediately after this direction the jury were reminded that the Crown bore the onus of proof beyond reasonable doubt. In the course of the latter warning his Honour told the jury:

The purpose of calling Dr McDonald is to see whether his evidence raises a reasonable doubt about what Ms Neville says is a highly probable explanation, the one supportive of [the complainant], namely that all of the DNA came from the saliva of the accused.

78 The appellant submitted in this Court that the reference to “a highly probable explanation” overstated Ms Neville’s evidence.

79 I do not think that there is any substance in this last-mentioned complaint. In the first place the summary was substantially accurate. Secondly, the comment was a passing one made in a context where the substantive direction concerned the onus and standard of proof. Third, no redirection was sought.

80 The appellant further submitted that the Judge should have given the jury greater assistance about the Sorbolene issue. I disagree. Close examination of Dr McDonald’s evidence reveals it as extremely vague as to its own scientific basis for raising the Sorbolene hypothesis.

81 The appellant submitted that Ms Neville’s opinion evidence did not go beyond a bare ipse dixit in relation to the Sorbolene matter. She did not, it was contended, reveal the necessary scientific criteria to disclose a contestable basis for testing the accuracy of her conclusion that the DNA recovered from the complainant’s underpants was consistent with originating from saliva, indeed more likely to be from this source than from skin cells.

82 I do not agree.

83 The relevant statutory requirement in s79 of the Evidence Act is that the expert’s opinion “is wholly or substantially based on” training, study or experience. The question whether the witness has the requisite expertise is itself a question of fact, only reviewable by an appellate court on well established grounds (Clark v Ryan (1960) 103 CLR 486 at 503; Middleton v The Queen [2000] WASCA 213, (2000) 114 A Crim R 258 at [21]).

84 Authoritative case law also establishes that the expert’s reasoning process should be sufficiently exposed to enable an evaluation as to how the expert used his or her expertise in reaching the opinion stated (HG v The Queen [1999] HCA 2, 197 CLR 414 at [39]-[41] 427-8; Makita at 744[85]; Keller v R [2006] NSWCCA 204 at [29]). Beyond this, the weight of the opinion is a matter for the tribunal of fact.

85 These principles do not exclude the testimony of a witness who is prepared to acknowledge a gap in his or her knowledge yet demonstrate ability based upon expertise to respond to questions (especially from the cross-examiner) designed to bring general experience and expertise to bear upon a particular issue. Nor do these principles require the testimony of one expert to be rejected merely because another expert is not prepared to essay a view in a particular matter or is prepared to essay (however tentatively) a view tending in the opposite direction.

86 Ms Neville’s extensive specialist training and experience armed her with the capacity to opine that the quantity of the appellant’s DNA found in the underpants indicated that it came from a rich DNA source rather than a poor source. She explained the bases for her views while conceding the possibility of a contrary conclusion.

87 Ms Neville did not accept the validity of the defence theory involving the proposition that Sorbolene would have reduced friction while increasing the flow of DNA from a dry source. She was prepared to expose her reasoning on this matter when pressed by the cross-examiner both during the voir dire and in the trial itself. But she was not obliged to abandon her central opinion merely because the cross-examiner put the Sorbolene theory to her. Neither was the Judge required to reject her testimony on a similar basis.

88 The posited Sorbolene theory was not recognised in scientific literature nor otherwise established in the evidence as having any validity. In truth, the defence case on the point had all of the hallmarks of the famous question about the coefficient of the expansion of brass as recounted by the cross-examiner himself, the Right Honourable Sir Norman Birkett, in an article entitled “The Art of Advocacy: Character and Skills for the Trial of Cases” (1948) 34 American Bar Association Journal 4 at 81:

I was the counsel for the Crown and a man came in to the box for the defense who called himself an expert witness.
…
And there was I rising to cross-examine him, and whether it was inspiration or what it was I don't know, but my first question in the cross-examination of the man certainly wasn't in the brief. I said: "Tell me, sir, what is the coefficient of the expansion of brass?" And he didn't know. I am not sure that I did, but he couldn't ask me questions and I could ask him, and he didn't know. And from that moment, of course, it was easy.

89 This barrister’s war story leaves it far from clear as to whether the question had any relevance to the matter at issue, even relevance as to credit. This said, I refrain from passing any judgment upon the ethics of the style of advocacy being advocated by Birkett. See further Burnside J, “R v AA Rouse” (2003) 124 Victorian Bar News 55.

90 The point of present relevance is, however, that Birkett’s question carried no probative weight unless (had it been objected to) its relevance was shown. In truth, Birkett was only interested in destroying a puffed up witness’ credibility in the eyes of the jury. In the present case the appellant has not shown that the Sorbolene theory was itself valid or that such theory destroyed the capacity of Ms Neville to stick to her own guns in maintaining her opinion on the central issue.

91 Ms Neville’s answer went well beyond guesswork or a mere ipse dixit. In my view, her testimony that I have summarised or quoted above showed her to be well qualified by training and experience to express opinions as to the likely source of DNA as between rich and dry DNA sources. That opinion proceeded from the quantity of the appellant’s DNA recovered from the sample. Ms Neville said that the amount recovered was unusually large even taking into account the possibility of the male contributor being a good shedder of DNA (T p290). She referred to her observations of saliva samples “day in day out” (T p298). She said that 9 nanograms in 20 microlitres being recovered could be described as “a bucket of DNA” and a “huge amount of DNA” (T p317).

92 Contrary to the appellant’s submission, it was not incumbent upon the trial judge to warn the jury against accepting Ms Neville’s testimony.

93 This ground of appeal fails.

94 The appeal against conviction should therefore be dismissed.

Application for leave to appeal against sentence

95 The appellant seeks leave to challenge the sentence of 6 years imprisonment with a non-parole period of 4 years on the bases that:

1. The sentence was unduly harsh and severe;

2. The sentencing judge erred in failing to sufficiently take into account the offender’s age and good character; and

3. The sentencing judge erred in failing to take into or sufficiently take into account the offender’s relationship with his daughter.

96 The offence under s61J of the Crimes Act 1900 carried a maximum penalty of 20 years imprisonment. It attracted a standard non-parole period of 10 years imprisonment.

97 In sentencing, Judge Freeman found that the offence was not planned, rather it was opportunistic, essentially spontaneous. His Honour appears to have accepted the complainant’s evidence that the sexual act of cunnilingus went on for perhaps an hour. This type of intercourse was characterised as being at the lower end of criminality, not that it was anything other than a very serious crime (ROS p5). The age of the particular victim was also taken into account.

98 His Honour concluded that the offence established by the verdict fell below the middle of the range of objective seriousness. It was however found that the offence was aggravated by virtue of the breach of trust which both the victim and her mother had imposed upon the appellant. His Honour correctly observed that crimes of this nature are regarded with great seriousness; and that principles of general deterrence and retribution require earnest consideration even where the offence was “an aberration, a singular departure from the offenders previous behaviour” (ROS p9). The judge concluded that the appellant was unlikely to re-offend.

99 As he worked through the checklist offered by s21A of the (Crimes (Sentencing Procedure) Act 1999, his Honour observed that it was clear that the offender was entitled to have his previous good character taken into account. The appellant was then aged 56, he had no prior criminal convictions, and he had a positive store of community goodwill on which to draw because of the high regard in which he was held in the community and the contribution which he made to the community before this offence.

100 Pausing here, I cannot accept the appellant’s submissions that the sentence was unduly harsh and severe or that the judge erred in failing “to sufficiently take into account” the appellant’s age and character.

101 Senior counsel for the appellant relied upon his written submissions which, as usual, were careful and detailed. In my view, they re-agitated the matters that were placed before the sentencing judge and taken into account by him, without establishing any appealable error. The judge took account of all material matters that were put before him. His conclusion as to the ultimate sentence was well within the range indicated by the legislation and the authorities relied upon by the appellant.

102 The third ground contends that the Judge erred in the account he took of the appellant’s relationship with his daughter.

103 The appellant was the carer for his daughter now aged 12 and he had been her carer for almost all of her life. A Family Court Order of 2000 had granted custody to him and had limited the contact access of the child’s mother. The mother has been diagnosed as suffering from bipolar disorder with associated complications of excessive drinking and gambling. A medical opinion in 1999 referred to depressive states, panic disorder and suicide periods. In 2002 there had been an involuntary admission to hospital. There was further evidence of alcohol abuse, including a conviction for high-range PCA in 2003.

104 The mother gave evidence in the sentencing proceedings as to her current domestic arrangements and her current employment as a credit controller. She said that she continues to take her medication. The thrust of her evidence was that she was presently fit to assume a more substantial role in the care of her daughter. She was challenged on these matters in cross-examination.

105 His Honour observed that the mother presented in giving her evidence as stable, controlled and intelligent. There was nothing in her affect which would cause concern about her being the guardian of her 12 year old daughter. He continued (ROS p12):

That, however, and this is fortunate, is not the decision of this court to make. Despite having some misgivings because of her past difficulties I am not prepared to find that if as a result of the prisoner’s incarceration the child came into the care of her mother that that would be so unfortunate that in order to prevent such a possibility I should eschew otherwise appropriate orders and choose some alternative sentence.
In any event, the prisoner has not established that the child would necessarily go to the care of her mother. There are other options. [His Honour referred to various possibilities involving the appellant’s siblings before concluding ROS p13] I do not think I should find, even on the balance of probabilities, that the impact of imprisoning this offender is likely to be so extraordinary on his daughter that such imprisonment should be avoided.

106 This information has not been updated and the Court is unaware of the present custodial circumstances of the appellant’s child. This observation is not, however, a criticism, because the appellant would have to first establish error on the part of the sentencing Judge before this Court would have any role in re-sentencing.

107 It was submitted that the Judge should have made some allowance for the hardship to the appellant’s daughter established on the evidence.

108 In my view no error has been shown. This was a case in which the imposition of a significant custodial sentence was inevitable. Such an event must necessarily have triggered the need for alternative custodial arrangements for the appellant’s daughter. The sentencing Judge found that there were special circumstances justifying some alteration to the statutory proportions of the sentence. He included in them the appellant’s “level of concern which he will undoubtedly feel for his daughter’s welfare”.

109 The appellant submits that the Judge should have gone further and imposed a lesser head sentence and non-parole period having regard to the situation of the daughter even though exceptional hardship was not established. We were referred to the observations of Hodgson JA in R v Girard [2004] NSWCCA 170 at [21]. R v Dib (NSWCCA, Meagher JA, Allen and Badgery-Parker JJ, 13 September 1991 and R v Grbin [2004] NSWCCA 220 were also cited. In my view these matters do not establish error in the present case. Nor do they show that a different sentence ought to have been imposed.

110 I would therefore make the following orders:

1. Appeal against conviction dismissed.

2. Leave to appeal against sentence granted, but appeal dismissed.

111 JAMES J: I agree with Mason P.

112 HOEBEN J: I agree with Mason P.