TOOBY v The State of Western Australia
[2008] WASCA 160
•24 JULY 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TOOBY -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 160
CORAM: STEYTLER P
WHEELER JA
MILLER JA
HEARD: 24 JULY 2008
DELIVERED : 24 JULY 2008
PUBLISHED : 31 JULY 2008
FILE NO/S: CACR 19 of 2008
BETWEEN: ARTHUR WILLIAM TOOBY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GOETZE DCJ
File No :IND 1513 of 2006
Catchwords:
Criminal law and procedure - Appeal against conviction - Failure to adduce evidence - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed on ground 3 only
Conviction entered on 29 August 2007 quashed
Retrial ordered
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: Mr S Vandongen
Solicitors:
Appellant: Hammond Worthington
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
STEYTLER P: I have read the reasons prepared by Wheeler JA. They reflect my own reasons for joining in the decision to grant an extension of time, grant leave to appeal and allow the appeal.
WHEELER JA: This is an appeal against conviction. The two grounds originally advanced by the appellant were abandoned by his counsel at the hearing of the appeal. However, the State suggested that if the appellant were to amend his grounds to include a ground in terms which I will shortly mention, then the State would concede the appeal. Not surprisingly, the appellant sought and was granted leave to amend in those terms. It is not therefore necessary to deal with the original grounds of appeal, but only to record briefly the court's reasons for determining that the State's concession was correctly made.
On 29 August 2007, the appellant was convicted, following a trial by jury, of a single count of aggravated sexual penetration without consent. The offence was alleged to have occurred at the complainant's Ferndale home on 26 February 2005.
The appellant was 67 years of age at the date of the trial. The complainant was a 78‑year‑old widow who lived adjacent to the appellant. There was evidence that she suffered from dementia. The appellant's case at trial was that sexual intercourse did not occur on 26 February 2005, but that consensual intercourse had taken place between the appellant and the complainant at a time prior to the day specified in the indictment.
In order to prove that sexual intercourse had taken place between the appellant and the complainant on the day specified in the indictment, either instead of or as well as on the earlier date about which the appellant gave evidence, the State relied on a number of factors. It relied upon evidence from two neighbours of the complainant, in relation to the complainant's distress on 26 February and in relation to some remarks she had made, apparently suggesting that she was fearful, on that day. They had seen the appellant at her house on that day. Those matters, of course, did not directly establish that there had been any sexual contact, but were circumstances tending to show that something untoward had occurred between the appellant and the complainant.
There was also, however, evidence that, on 27 February, the complainant was examined at the Sexual Assault Referral Centre and a low vaginal swab was taken. When examined microscopically, that swab was seen to contain three spermatozoa heads. It was the evidence of Mr Egan, a forensic scientist, that the spermatozoa heads would survive in
the environment of the lower vagina for approximately five days at the most. That was consistent with the complainant's account of forced sexual penetration by the appellant on 26 February. It was inconsistent with the appellant's account of a sexual encounter some time before, although counsel for the appellant at trial had obtained from Mr Egan, in cross‑examination, the concession that the three to five‑day period during which he considered that spermatozoa heads would survive was not "fixed".
There was also contained in the report of Mr Egan reference to a stain being seen on a blanket taken from the complainant's house. It gave a positive reaction for semen when screened chemically, and spermatozoa was seen when a portion of the stain was examined microscopically. DNA analysis of the stain, however, positively excluded the appellant as being the "donor" of that semen.
Although the date was not given in evidence, it appeared from the complainant's statement that her husband had died approximately 20 months prior to the date of the alleged offence. She had said during the course of her evidence that she had not had sex with anyone (other than with the appellant, without her consent) since her husband's death.
The ground which the State suggests should be successful in the light of those matters would be in the following terms:
There was a miscarriage of justice occasioned by the failure of the prosecution to adduce evidence at the appellant's trial that semen and spermatozoa were recovered from a blanket that had been seized by police from the complainant's bed and that the appellant could be excluded as the donor of that semen.
In my view, the State was correct to concede that that evidence should have been adduced by the State. It is not clear on the evidence before us whether the "spermatozoa" seen on examination of the blanket were in the same condition as the "spermatozoa heads" seen on the vaginal swab, and nor is there any evidence as to whether spermatozoa are likely to survive for a longer or shorter period outside the environment of the vagina. However, the evidence would appear to raise at least a possibility that there had been sexual activity by some male person other than the appellant in the complainant's bedroom within the relatively short time frame specified by Mr Egan as one during which spermatozoa could survive. That possibility would be of significance to the issues in the trial, particularly in the light of the appellant's defence. His case was effectively that while he had had sexual intercourse with the complainant,
it was not in a manner or at a time specified by her. It was open to consider, on his evidence, having regard to her dementia and to certain bizarre behaviour in which he alleged she had engaged, that it was not open to the jury to exclude the possibility that the complainant had wrongly attributed to the appellant a role in some other sexual activity which had been engaged in with her by some other person.
The mere presence of a semen stain of which the appellant was not the "donor" would be more problematic. The complainant has been married more than once, her last husband had died less than two years previously, and it is, of course, likely that she had had sexual activity with him in their bedroom at some stage during the years preceding the alleged offence. In the absence of any evidence concerning how long one might expect a semen stain to be detectable, and to be able to yield DNA material, and in the absence of any evidence from the complainant or from some other knowledgeable person about when and how the blanket had been cleaned, it would appear to me to be too speculative to suggest that the mere existence of semen could give rise to a possibility that there had been, subsequent to the death of the complainant's husband, some sexual activity directed towards her by some third person, which she had wrongly attributed to the appellant. However, the adducing of the evidence concerning that stain by the State would have left it open to the appellant to pursue, in cross‑examination of the complainant and in cross‑examination of Mr Egan, a line of enquiry of that kind.
For the reasons outlined above, I therefore joined in the orders of the court granting an extension of time, granting leave to appeal, and allowing the appeal. I would note in relation to the extension of time issue, that the explanation for the delay contained in the materials placed before us by the appellant is wholly inadequate. It recites a number of steps taken in relation to the obtaining of legal aid, but does nothing to explain why those steps were taken on those dates and, in particular, the mere chronology does not explain why the appeal could not have been instituted within time. However, having regard to the nature of the ground of appeal suggested by the State, and to the lack of any objection to the extension of time, I would, on this occasion, grant leave notwithstanding the absence of adequate explanation.
MILLER JA: I agree with Wheeler JA.
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