Cruz v The Queen; R v Cruz [2017] ACTCA 48

Cruz v The Queen; R v Cruz [2017] ACTCA 48 - ACTCA 2017 case summary — Zoe

[81]

By June 2013 [the complainant] had been in day care at the home of the Appellant for around a year. Ms Pagan [a forensic biologist called by the Crown] accepted DNA was capable of innocent secondary transfer in a domestic environment. Dr McDonald [a consultant molecular geneticist called by the appellant] testified that given the very small quantity of sperm detected it could have been the result of innocent secondary transfer.
Ms Pagan conceded that without knowing the DNA of the Appellant's father she could not exclude the father as a source of the DNA identified on [the complainant's] nappy.
The detection of alpha amylase [an enzyme present in saliva] did not preclude the possibility that it had come from urine or some other fluid manufactured by the body rather than saliva. Ms Pagan confirmed she noticed yellowing on [the complainant's] nappy. Ms Stone [a forensic biologist] confirmed the test for saliva had given a false positive in a particular area of the nappy. Dr McDonald confirmed that the two recognised saliva tests used on the nappy are not regarded as definitive tests for the presence of saliva. Further Dr McDonald said if saliva was in fact detected on the nappy there was no evidence it belonged to the Appellant. Swabs taken from [the complainant] during her medical examination and tested for the presence of saliva were negative. Given three out of the five differential extractions tests performed on a mixture of sperm and skin cells did not work there was a real question about the reliability and integrity of all the DNA testing by the prosecution experts.
Dr Morgan [a paediatrician working within the Child at Risk Health Unit of Canberra Hospital], who medically examined [the complainant], did not make any observation that was of interest or relevance to what was alleged to have happened to [the complainant]. [The complainant's] genital examination was unremarkable. Melissa Roberts of the child sexual assault unit [of the Australian Federal Police] confirmed that [the complainant], on interview, said nothing of forensic value to her investigation. Ms Roberts when asking [the complainant] questions [the complainant] referred to the Appellant as "Carlos" not "Tio Carlos".
The Appellant gave evidence that [the complainant] referred to him as "Carlos" not "Tio Carlos". The mother of the Appellant had never heard [the complainant] call the Appellant "Tio" only "Carlos". [The complainant] referred to the Appellant's father as "Carlos".
The Appellant's mother at no time ever saw the Appellant alone with [the complainant] because she had sole responsibility for [the complainant].
[The complainant] was not called in the prosecution case and therefore not cross-examined as to what she had in fact said and meant by her statement "You cannot clean my bottom with your tongue, Tio Carlos licked my bum bum", or whether by using the description "Tio Carlos" she was referring to the Appellant or somebody else.
The Appellant gave evidence suggesting the very small quantity of sperm detected on the nappy was likely a result of some past sexual self-gratification or sexual intercourse with his girlfriend and thus transferred to possibly a towel in the house which may then have come into contact with either [the complainant] or some person who then had contact with [the complainant].

[94]

The evidence from [the complainant's mother], and Ms Stone indicated that [the complainant] had not urinated in her nappy.
The agar starch test and RSID [rapid stain identification series] test tested positive for saliva along both inside elastic edges of the nappy.
Saliva is a very high source of DNA and DNA testing indicated profiles consistent with the appellant.
The location of the saliva was along the inside of the nappy along the elastic sides adjacent to where the child's genital area would sit in the nappy.
Item 1-1SP and 1-9SP [samples taken from identified areas of the nappy] produced single male DNA profiles - Dr McDonald's evidence was that this was evidence of relatively effective separation of sperm and non-sperm fractions optimal to large amounts of DNA and good evidence that DNA from the appellant was present. Further, Dr McDonald's evidence was that in relation to 1-1SP that it was unlikely that the DNA came entirely from skin cells. This infers that in Dr McDonald's opinion the DNA came in the main from the sperm cells that had been detected.
Semen was located in the nappy on both sides of the elastic at the leg openings. This was inconsistent with the innocent hypothesis of transference. Even if this explained the sperm cells, it did not explain the presence of semen on the nappy, nor did it explain the presence of saliva on the nappy.
The forensic evidence indicates saliva along the inside elastic edges of the nappy. Semen is present in these two areas. Sperm is located on both sides in the same areas which test positive for semen and saliva. Sperm is also located in the centre of the nappy and at the back of the nappy. DNA consistent with being that of the appellant is found on both sides of the crotch area and from the central area of the crotch where sperm is found.
If the appellant had sex the weekend before 27 June 2013 (a Thursday) in his bed it would have dried out by 27 June 2013. Dried semen was an inferior vehicle for the transfer of sperm cells.
The absence of saliva and sperm on the child can be explained by being wiped clean, by the appellant and later her mother.

[152]

78. In R v Bull [2004] ACTCA 8, while it is true that there were significant factual similarities in that the offender had gone into the five year old victim's bedroom and touched her genitalia, and semen was found on the inside of the victim's underpants, with a finding being made that the offender had ejaculated in the course of the incident, other key features, both objective and subjective, were markedly dissimilar. While there was no evidence of direct violence involved, the child victim in that case screamed loudly enough to wake her mother. The child was sufficiently affected to refuse to sleep in the same room 14 months later, so plainly remembered what had happened to her and was seriously adversely affected to that extent. Mr Bull was a close friend of the family who had been asked to be the child's godfather, and so was in a position of direct and substantial trust. Indeed, he had been sleeping in the same room as the child. He had prior convictions for serious repeated sexual assaults on his stepson and separately on his stepdaughter some 12 years earlier, for which he had been sentenced leniently to three-year concurrent sentences. The sentencing judge said this was not a case of a second offender, but rather someone who had previously repeatedly sexually abused two other children and, despite leniency and treatment, had reoffended. The sentence judgment was short and extempore, revealing little of the mitigating circumstances taken into account in this case, although he had a troubled past. While the sentence imposed in that case of six years and 11 months with a non-parole period of four years and seven months was considerably greater than in this case, the offending was objectively more serious and it should be observed that repeat offending immediately elevates the need for specific deterrence, to the point where it may be seen to be at least a very important, if not dominant, consideration - such a finding was made by the sentencing judge. That, with the trust aspect of the case, also elevated the need for general deterrence. With those critical features absent, and the lack of comparable mitigation shown in favour of Mr Bull, a direct numerical comparison becomes, in substance, the main basis upon which this case is relied upon, yet that is the very approach proscribed by the High Court.

[153]

79. In R v GE [2014] ACTSC 181; 242 A Crim R 41 ('GE'), the offender was found guilty after trial of two counts of sexual intercourse by cunnilingus with his step granddaughter, who was under the age of 10. He had married the child's grandmother before she was born, so that she always regarded him in the same way as a natural grandfather. The incidents took place over about two hours. The sentencing judge regarded the circumstances in which the offender came to be alone with the child as being significant, being that the mother and grandmother were visiting the mother's uncle and offender's brother in law, who was dying of cancer. The offender told the child to undress before assaulting her in two different parts of the house, with the child complaining shortly after leaving the offender's house the same night, so was plainly conscious and it seems disturbed by what had happened to her. It also took place in the context of her being imposed upon as a "secret" to compensate for having disobeyed him earlier in the day, so had an element of compulsion or coercion in order to secure improper supposed "consent". That means of extracting a form of "consent" was treated as an aggravating circumstance. The offending was also clearly planned, so neither spontaneous nor opportunistic. The evidence before the sentencing judge was that the child had been so scared and traumatised that she would hit her head against walls, and experienced nightmares, with the abuse continuing to haunt her for years. Five years later she was still petrified at the thought of encountering the offender and continued to need counselling. The offender had no criminal record and was otherwise of good character, but had no other significant mitigation of any kind. He was 63 at the time of sentencing. He was sentenced to seven and a half years on each offence, partially accumulated to produce a total head sentence of eight years with a non-parole period of four years and six months. This again was a position of direct trust, which must always be a very important consideration when offending is directed at young children. The duration of the offending was much greater, and it had the hallmarks of calculation rather than opportunism. The objective circumstances were considerably more serious. Again, the mitigation in this case is not reflected in the sentencing remarks in GE. Once the factual comparison is so limited, the real comparator again becomes numerical.

[154]

80. In R v Williams [2014] ACTCA 30, the offender encouraged a three year old child at a public library to sit with him, then digitally penetrated her twice, while also thrusting his groin against her buttocks. She said that she needed to go, at least suggesting discomfort or at least consciousness as to what had taken place. The offender was, on any reasonable view, a serious predator and a real risk to children at large, including in public places. There was at least a suggestion that implied threats played a part in the offending. He fled and was apprehended two days later. He had an extensive history of similar offending, with some five prior events which the sentencing judge outlined, making this the sixth offence of this kind. His only apparent mitigation was a background of severe disadvantage. The offence was committed whilst on bail for an assault charge, referred to below. In fact, the offender was on his way, as a registered sex offender, to make an annual report to police as required by that status, which the sentencing judge found should have acted as a timely reminder of the need to control his urges in relation to the violation of young people. His sentence was increased on appeal from six to eight years, and would have been 10 years but for his guilty plea. He was also sentenced to three years' imprisonment for an unrelated assault occasioning actual bodily harm. The combined sentences produced a total sentence of nine and a half years with a nonparole period of seven-and-a-half years. The key differentiating features as against this case are the public and predatory nature of the sexual assault, the offender's significant prior criminal history, the bleak prospects of rehabilitation, and the fact of commission of the offence while on bail. The sentencing judge inferred serious psychological effects on the mother as a result of the sexual offending taking place in a public place that should have been safe. The facts only therefore bear a superficial resemblance to the present situation. Once again, the dominant comparator is numerical, with the circumstances bearing marked differences.

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Cruz v The Queen; R v Cruz [2017] ACTCA 48 (23 October 2017)

Legislation Cited (4)

Cases Cited (3)