Slape v The Queen

Case [2022] SASCA 91

Supreme Court of South Australia

(Court of Appeal: Criminal)

SLAPE v THE QUEEN

[2022] SASCA 91

Judgment of the Court of Appeal  

(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)

8 September 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER - JOINT TRIAL

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE

The appellant was convicted following a trial by judge alone of three counts of rape, one count of attempted rape and two counts of indecent assault.

Although the charges were joined in the same information, the offences were alleged to have been committed against two different complainants on separate occasions. Counts 1–3 involved allegations of indecent assault and rape against a 43 year old female at a horseriding event in June 2017, while Counts 4–6 concerned allegations of rape, attempted rape and indecent assault against a 23 year old female at a rodeo in January 2018.

Prior to the commencement of the trial, the appellant applied for separate trials of the charges concerning each complainant. The trial judge refused the application on the basis that the evidence of the complainants was cross-admissible on ‘similarity of account’ improbability reasoning.

The appellant appeals against his convictions and complains, inter alia, that the trial judge’s finding of cross-admissibility, and misunderstanding of the effect of the DNA evidence, occasioned a miscarriage of justice.

Held, per the Court, granting permission to appeal, allowing the appeal, setting aside the convictions on all counts, and ordering that there be a retrial:

1.The trial judge erred in holding that the complainants’ evidence was cross-admissible and refusing the application for separate trials, as well as deploying ‘similarity of account’ improbability reasoning in reaching his verdicts of guilty on each count. A miscarriage of justice has been occasioned.

2.The trial judge misunderstood the effect of the DNA evidence which was used in support of the credibility and reliability of each complainants’ account of the alleged offending. A miscarriage of justice has been occasioned.

3.      This is not an appropriate case in which to invoke the proviso.

Criminal Law Consolidation Act 1935 (SA) ss 48, 56, 270A; Criminal Procedure Act 1921 (SA) s 102; Evidence Act 1929 (SA) ss 34P, 34R, 34S, referred to.
DES v The Queen [2020] SASCFC 32; Hoch v The Queen (1988) 165 CLR 292; McPhillamy v The Queen (2018) 92 ALJR 1045; MDM v The Queen (2020) 136 SASR 360; Phillips v The Queen (2006) 225 CLR 303; R v Bauer (a pseudonym) (2018) 266 CLR 56; R v Bonython-Wright (2013) 117 SASR 410; R v C, CA [2013] SASCFC 137; R v M, BJ (2001) 110 SASR 1; R v Slape [2022] SADC 8;

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Slape v The Queen [2022] SASCA 91
Case
[2022] SASCA 91
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CaseChat Overview and Summary

The appellant, Slape, appealed his conviction to the Court of Criminal Appeal of South Australia. The appeal concerned multiple counts of sexual offences against two complainants, KP and AF. The central dispute revolved around the admissibility and proper application of certain evidence, particularly DNA evidence, and whether its use at trial occasioned a miscarriage of justice.

The Court was required to determine whether the trial judge erred in his treatment of the DNA evidence relating to the alleged offending against AF. Specifically, the appellant argued that the trial judge misunderstood the effect of the DNA evidence, including whether the appellant's DNA was detected in semen staining on AF's underpants and whether any such staining constituted semen. The appellant contended that this misunderstanding led the trial judge to improperly use the DNA evidence to support AF's account, thereby causing a miscarriage of justice. The Court also considered, but did not extensively rule upon, a potential difficulty with the cross-admissibility of evidence concerning consent in relation to one of the counts.

The Court found that the trial judge's reasoning demonstrated a misunderstanding of the nature and effect of the DNA evidence concerning AF's underpants. The appellant's contention was that the evidence did not establish that semen-like staining was present on the outer upper waistband of the underpants, nor that any mixed DNA profile, to which the appellant may have contributed, was extracted from a semen deposit. The Court concluded that the trial judge's deployment of this evidence to buttress AF's account was erroneous.

The appeal was allowed on the basis that the evidence was not cross-admissible, and therefore, there was no need for the Court to further elaborate on the specific issues concerning the DNA evidence in relation to AF.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

We conclude our consideration of this ground by observing that there was a further potential difficulty with the cross-admissibility of the complainants’ evidence. It arises from the fact that, at least on the defence case, the issue on Count 2 was one of consent. As the High Court explained in Phillips v The Queen,[30] the issue of consent does not ordinarily permit of ‘similarity of account’ improbability reasoning. At the very least, the significance of this aspect of the defence case in relation to Count 2 required careful directions as to the limits of the use of the cross-admissible evidence. However, as this issue was not the subject of any detailed consideration on the appeal (or below), and the appeal is otherwise to be allowed on the basis that the evidence was not cross-admissible, there is no need for this Court to say anything further on the issue.[30] Phillips v The Queen (2006) 225 CLR 303 at [47] (the Court).The DNA evidence The appellant contends that the trial judge erred in his treatment of the DNA evidence in respect of both the allegations of offending against KP (Counts 1–3) and the allegations of offending against AF (Counts 4–6). In each case, it is contended that the trial judge misunderstood the effect of the DNA evidence, and then deployed that misunderstanding in reaching the conclusions he did. It is convenient to commence with the DNA evidence relating to the alleged offending against AF, before then addressing the allegations relating to KP.The alleged offending against AF The appellant contends that the trial judge erred in finding that his DNA was detected in semen staining on the outer upper waistband of AF’s underpants. He contends that the evidence did not establish that there was semen-like staining on the outer upper waistband of the underpants, nor that any mixed DNA profile to which the appellant may have contributed had been extracted from a semen deposit. He further contends that the trial judge’s reasons demonstrate a misunderstanding of the nature and effect of the DNA evidence in relation to the alleged offending against AF, and that his Honour ultimately used that evidence to buttress AF’s account, thereby occasioning a miscarriage of justice. The context in which the DNA evidence fell to be considered was that AF alleged, as summarised in greater detail earlier in these reasons, that the appellant digitally penetrated her and then attempted to insert his penis into her vagina from behind. The defence case involved a denial that any sexual activity occurred between the appellant and AF. Upon returning home from the rodeo, AF removed her underpants and other clothing that she had been wearing, and left them on her bedroom floor. These items of clothing were later seized by police and submitted for DNA testing. The prosecution called a forensic scientist, Dr Rebecca Pinyon, to give evidence about the results of the DNA testing of the underpants. Her evidence consisted of a report, and oral evidence that summarised, and in some respects elaborated upon, aspects of that report.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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