Ignatov v R - [2018] NSWCCA 217 - NSWCCA 2018 case summary — Zoe

NSWNSWCCA

Ignatov v R

[2018] NSWCCA 217

Court of Criminal Appeal (NSW)|2018-03-16|Before: Bathurst CJ, Fullerton J, Campbell J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2018-03-16

Before

Bathurst CJ, Fullerton J, Campbell J

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

Judgment

BATHURST CJ: I agree with Fullerton J and the orders her Honour proposes.
FULLERTON J: On 13 September 2017 the appellant was convicted after trial of one count of having sexual intercourse with a child under the age of 10 years contrary to s 66A of the Crimes Act 1900 (NSW). The child, who was referred to in the proceedings by the pseudonym "GP", was aged 4 years at the time she was assaulted. She is the daughter of former friends of the appellant's family.
The assault occurred at the appellant's home whilst the child was visiting with her parents as invited guests of the appellant and his wife who were hosting a fancy dress party for their adult daughter's 25th birthday at their home. The appellant's home was located in a cul de sac.
On 27 October 2017 the appellant was sentenced to imprisonment for 4 years to date from 25 October 2017 with a non-parole period of 3 years expiring on 24 October 2020. That sentence was imposed against a statutory maximum of 25 years imprisonment to which a standard non-parole period of 15 years applied.
After sentence the trial judge released the appellant to conditional bail to permit him to prosecute an appeal against his conviction.
On 9 February 2018 a notice of appeal was filed containing three grounds: 1. The verdict of the jury was unreasonable being unsupported by the evidence pursuant to s 6(1) of the Criminal Appeal Act 1912 (NSW). 2. The trial judge was in error in admitting hearsay evidence. 3. The trial judge erred in admitting into evidence what the appellant told police concerning his memory of the evening GP was assaulted.
By a notice served on 13 November 2017, the Crown appeals the inadequacy of the sentence pursuant to s 5D of the Criminal Appeal Act.
It was accepted at the hearing of the appeal that in the event that the first ground of appeal is not made out, but the error the subject of either of the second or third grounds of appeal is established, the appropriate order is a retrial. It was also accepted that it will only be necessary to consider the Crown appeal against sentence in the event that the appeal against conviction fails.

[2]

The issues at trial

There was no issue at trial that GP was sexually assaulted on the evening of 21 March 2015 at about 11:30pm. Under a medical examination undertaken in accordance with sexual assault protocols on 22 March 2015, two distinct sites of abrasive injury were identified within the child's genitalia. Areas of soft tissue injury (visualised by areas of redness) were also identified on the child's external genitalia. There was also no issue at the trial that the child was asleep in the living room of the appellant's home when she was assaulted.
There was no issue at trial that the appellant's DNA (referenced by his Y-filer profile) was recovered from two of five vulval swabs taken during the medical examination, from a swab in the gusset lining of the child's underpants and from a tape-lift inside the top of her pyjama pants. In other swabs of the child's genitals and tape-lifts from her clothing, the appellant could not be excluded as a major contributor to mixed contributor DNA samples where the child was also identified as a major contributor.
In circumstances where Dr Bruce, the forensic biologist called in the Crown case, accepted the possibility that the appellant's DNA could have been the subject of secondary or indirect transfer to the child and to her clothing, the jury were directed that they would need to be satisfied beyond reasonable doubt that the appellant's DNA was transferred to the child during the course of the assault by him in order to return a verdict of guilty.
On the appeal, the appellant's senior counsel accepted that in the circumstances of this case, in order for the first ground of appeal to succeed this Court, in undertaking an independent review of the evidence, would need to be persuaded of the reasonable possibility that the appellant's male DNA or his autosomal DNA (in the sense that he could not be excluded as a major contributor to a mixed DNA profile with that of the child) recovered from the child's genitalia and clothing was as a result of secondary or even tertiary transfer by another person. To express it in another way, in order for this Court to have a reasonable doubt as to guilt which the jury ought to have had, the Court would need to be persuaded, having regard to all the evidence, that the indirect transfer of the appellant's DNA to the child's genitalia and clothing was a rational and not remote possibility and referable to a plausible mechanism of transfer.

[3]

The circumstances in which the child was assaulted

The living room is located at the front of the house and is accessible via archways: one from the dining room/kitchen internal to the house and a second from a hallway close to the front door of the house. The front door of the house was locked from the inside during the party. This was confirmed by both the appellant and his wife in their accounts to police and in the evidence that the appellant's wife gave at trial (the appellant did not give evidence). The appellant told police that access to and egress from the party, which was convened at the rear of the home, was via one of two side gates. This was confirmed in the evidence of a number of witnesses at trial who were guests at the party, including the appellant's daughters.
The child, together with her brother aged 6 years, were asleep on an L-shaped lounge in the living room at the front of the house by about 9pm whilst the party continued in the area towards the back of the house. The child's mother gave evidence that she prepared the children for bed around 8:00pm to 8:30pm and took them into the living room to watch television to settle them before sleep. The child's father assisted, and either he or his wife changed GP into her pyjamas.
The appellant's wife provided a "towel like blanket" to put over the child. She gave evidence at the trial that this item was customarily used by her and her husband to cover the lounge during intercourse, and that it had been used in that way a week prior to 21 March 2015. She said it was kept separate from other towels for that reason and that after it had been used it would be returned to the cupboard. She said it was not her practice to wash it after use. In the event that there was any need to clean up any ejaculate it would be wiped up with tissues. The appellant's wife also gave evidence that the living room was used every day, as distinct from the family room which was rarely used. She said she cleaned the house before the party and would likely have dusted the top of the lounge.
The appellant made no reference to being naked with his wife on the lounge or having intercourse in that room when he was interviewed by police. He designated the seating arrangements in the living room by appointing his seat and his wife's seat at opposite sides of the lounge, with his wife seated at the end where the child had been put to sleep.
After GP and her brother had been settled and left to sleep, the child's father checked on them twice between 10:00pm and 10:30pm. On both occasions GP was sleeping on her stomach. The child's father moved the blanket/towel covering aside to touch her on the outside of her pyjamas to see if she was wet as she was in the process of being toilet trained. After satisfying himself that she was dry he put the cover back on her. The child's father noticed at that time that some party guests were using the ensuite in the master bedroom across the hall from the living room as an alternative toilet to the toilet in the laundry which had been designated for use during the party at the other end of the house. The availability of the ensuite was notified to the guests sometime after 9pm when one very inebriated guest was found sleeping on the laundry floor where the toilet which had been dedicated for the use of partygoers was located. A third toilet was inaccessible due to a leak. The appellant told police that only family members were allowed to use the ensuite. His wife said that the adult partygoers were invited to use the ensuite.
The master bedroom was located at the front of the house across the hallway from the living room. Both the living room and master bedroom were accessible from the hallway which extended from the front door past an open plan kitchen through to another large open area. This was nominated on a floor plan of the house tendered in the proceedings as Exhibit F as the "family room". The family room opened onto a large open air area via two doors. That area was described on the floor plan as "the pergola". The younger partygoers were concentrated in that area with the older partygoers inside in the family room, some of whom were seated around a table. Both areas had tables for food and beverages.
At about 11:30pm to 11:40pm the child's parents were alerted to her screaming. The child's mother went immediately to the living room via the kitchen/dining room where she found GP awake with the blanket/towel still covering her. She picked her daughter up with the blanket/towel wrapped around her. She only realised that the child's pyjama pants and underwear were at her knees when she felt the child's skin. She pulled up the child's clothing and asked if someone had touched her. The child said "Yes". The blanket/towel was left on the floor and was later photographed by police in situ.
After alerting her husband and then taking the child to the ensuite in the master bedroom, the child's mother noticed what appeared to be fresh blood in the crotch area of her daughter's underpants. The child's mother did not see anyone walking out through the front door or hearing the front door closing when she was tending to her daughter. Both before and after the child was being attended to in the ensuite bathroom, the child's father saw the appellant by the front door.
Upon being alerted by the child's mother to a suspected assault on her daughter, the appellant's wife told everybody to remain in the house and instructed her daughter to lock the side gate. She placed a call to the police at 11:47pm. They arrived shortly thereafter.
All adult males who were in the house when the child was assumed to have been assaulted provided buccal swabs to the investigating police. All were excluded as a source of the DNA that was recovered from the child's genitals and clothing. The only male from whom a buccal swab was not taken was the child's brother. It was not suggested by the appellant at trial, or on the appeal, that he was a suspect. A number of other male guests who had left before the incident occurred were said by the appellant at trial to remain potential suspects on the basis that they may have left the party returning later to assault the child before leaving again through the front door when she screamed.
The disc jockey (BJ) who was hired to entertain at the party but who had left by the time police arrived also provided a buccal swab at the request of police. He was also interviewed by police. At the time of trial he was serving a 6 year term of imprisonment for recklessly causing injuries to his infant son by failing to provide medical care and attention after the child was burnt. He was on bail for that offence at the time GP was assaulted. This evidence was adduced by the appellant at trial as tendency evidence. The jury were invited by the appellant's counsel to consider BJ as a potential assailant on the basis of what was said to be his propensity to commit violent offences on small children and in circumstances where it was contended by the appellant that his precise whereabouts at the time of the offence were not known. It was the Crown case that BJ had left the party in his van before the child screamed.
BJ gave evidence at the trial. He denied inserting his finger or fingers into the child's genitalia or licking his finger after touching a household object and then inserting his finger into her genitalia. He denied inserting his penis into her genitalia; rubbing something against his penis (whether a household object or after touching someone) and then inserting his penis into her genitalia or picking up an object and inserting that into the child's genitalia. He gave evidence he did not touch the child at all and did not venture into the front of the house at any time during the evening. He denied leaving the house at the end of his shift and returning through either the front door or sneaking into the house through the back yard and sexually assaulting the child before leaving through the front door. He denied having a propensity to assault young children. He agreed he told police on 31 March 2015 that he did not remember any children at the party. He said it was possible that children were amongst the party goers but he did not recall them. He thought that the youngest person would have been 18 or 19. He said he did not know police were investigating an assault on a young child when they invited him to voluntarily participate in an interview. He said when he asked why he was being questioned, police said they could not tell him. He agreed he was on bail at the time of the party in respect of the offences committed on his infant son.
BJ also gave evidence that he did not use the ensuite bathroom in the master bedroom and did not enter the house at all during the course of the party. He said it was his practice to use the toilet before his engagements and that he rarely left his disc jockey desk because he did not want people to touch the equipment whilst it was unattended - some of which was his and some of which belonged to his employer. He said his focus was to keep everybody happy and dancing and that he was focused on engaging with the crowd without focusing on any guest in particular. He said the music started at approximately 6:00pm and that he was booked to play until 11:00pm. He said he was still there when a group photograph was taken and that when his shift finished he went into the house and unplugged his equipment, before packing it up and carrying it to his van through down the side entrance in accordance with where he was directed to go. He said he could not recall if photographs were still being taken at that time.

[4]

The appellant's accounts to police

In the appellant's statement to police of 29 March 2015 he said he remembered using the ensuite twice in the evening. He said at one stage when he was coming out of the bathroom he noticed that the front door was closed but unlocked, so he locked it. He said he and his wife had agreed that the door should be kept locked at all times to prevent people coming and going through the front door. He said after locking the front door he saw the child sleep on the L-shaped lounge. He said the room was dark. He said the child was uncovered so he picked up the covering that was half on her and half on the floor and placed it over her. He said he had never seen the covering before and did know what colour it was or how big was. He did not report tending to the child to her parents. He said he did not otherwise have any one-to-one contact with the child.
In a recorded interview with police on 29 April 2015 the appellant told police that he "blacked out" around 9:00pm after drinking a lot of alcohol coincident with the time of a rugby league football game involving the St George Illawarra Dragons and had no memory of the cutting of the birthday cake and speeches. Later in the same interview he said he blacked out around 10:00pm. He told police he remembered his wife coming out of the house and screaming that no one was to leave and that the police were on their way. He said she directed that the side gate be locked but he was in no state to go and lock the gate because he was so drunk. He said someone got him a chair and he sat down and waited for the police to arrive.
He said the DNA results were explained to him by police (police told him that there was DNA similar to his DNA on the child and her clothing) but that procedural errors infected the integrity of the sample and that further swabs were required. He said he could have touched the child's clothing when he placed the blanket on her but that was as close as he got to her in the course of the party. He denied dancing with her although this was contradicted by other partygoers. He denied touching the child on the vagina. He said he was shocked that he was a suspect. He offered no objection to providing another buccal swab. He said he did not wish to contact a legal practitioner.
The appellant's various accounts to police in the form of his written statement and ERISP were tendered at his trial. He did not give evidence. He relied on positive evidence of good character adduced in cross-examination of a number of Crown witnesses.

[6]

The child's injuries

Two abrasive injuries to the child's genitalia were identified in the course of the medical examination conducted by Dr Tran on 22 March 2015 in accordance with sexual assault investigation protocols. One injury (injury 1) was to the mucosa in close proximity to the hymen and associated with fresh bleeding. It was also an area where two swabs were taken for DNA profiling. A second injury (injury 2) consisted of two abrasions to the skin of the left labia majora. It was also swabbed for DNA profiling.
Dr Tran gave evidence that injury 1 is in an area normally protected by the labia of the genitalia. The examination she conducted was only able to be performed after the child was laid on her back with her legs folded up, and only after the application of traction. This allowed for the labia majora and the child's vagina to be opened and the hymen exposed for examination. Two diagrams of the anatomy of a four year old's genitalia were exhibited at the trial as Exhibit AL. A further examination on 23 March 2015 by Dr Isaacs confirmed the multiple sites of injury.
The uncontested evidence of Dr Tran was that the abrasive injuries were consistent with the child having been penetrated, to some extent, by an object. She was not able to differentiate between a finger, a penis or some other object. It was also common ground that the effect of Dr Tran's evidence was that it was unlikely that the two abrasive injuries were inflicted by a sharp object (as to which more injury would be likely expected) or by a flaccid penis (as to which less injury would be expected). The action causing the abrasions was described as a combination of pressure and shearing or moving against the skin. Dr Tan agreed that a finger without contact from a fingernail could have caused the injuries but force would be required for the skin to abrade. A gloved finger could also have caused the injuries depending upon the force used.
Two other sites of injury to the genitalia were noted by Dr Tran as red marks or redness: one over the mons pubis (the top part of the outer genitals towards the top of the labia majora) and a second area of redness in the vulva. No specific mechanism was identified as causing these injuries.
In cross-examination, Dr Tran confirmed that she would expect that when the injuries were inflicted the child would feel pain. She accepted that it was possible that the child screaming was associated with the infliction of the injuries. In re-examination Dr Tran accepted that were the child asleep when she was penetrated she may have been woken from the pain or because she was startled by the assailant.

[18]

Tape-lift outside top of pyjamas pants (R5)

The same results were reported as the results relating to R4.
In each of the tape-lifts from the inside and outside of the top of the underpants (R2 and R3), and the inside and outside of the top of the pyjama pants (R4 and R5) where it was reported that the appellant's DNA could not be excluded as one of two major contributors to a four person mixture, it appears that no Y-filer testing was undertaken. There is no explanation in the evidence for why that was not done. However, given the issue that presents for the Court in this case, namely whether the Crown could exclude beyond reasonable doubt the possibility of the appellant's DNA being transferred to the child and her clothing by secondary means, the fact that DNA testing using the Y-filer System was not undertaken is not material.
As an appendix to the certificate of analysis relating to the further testing carried out on R4 (Exhibit AO) under the heading "Transfer and persistence of DNA", the following evidence was available to the jury: There are several mechanisms by which DNA may be transferred. Direct contact involves the transfer of DNA to an object, surface or person, directly from the source of that DNA. This may be via physical touch or contactless transfer of body fluids (for example, blood transferred following injury or droplets of transfer projected during conversations). DNA can also be transferred indirectly via an intermediary. This process is often referred to as "secondary transfer". In this manner, it is possible for a person's DNA to be deposited onto an object, surface or person that they have not had any direct contact with. Studies conducted by FASS scientists have demonstrated that DNA can be transferred to items of clothing through the use of shared washing machines and there are numerous publications in the scientific literature demonstrating transfer of DNA during social contact which is not related to any criminal activity. The transfer and persistence of DNA is affected by a number of factors and current understanding regarding the influence of these factors is limited. (Emphasis added.)
The appendix to the certificate of analysis also states that when forensic scientists are dealing with low level "trace DNA" (that is, where the DNA cannot be attributed to a particular body fluid or substance) it may not be possible to attribute a level of likelihood to any transfer scenario, be it direct contact transfer or secondary contact transfer. That said, no attempt was made by the Crown or defence counsel to invite Dr Bruce to attribute a level of likelihood of direct transfer of the appellant's DNA to the child's genitalia or to her clothing as compared with the possibility of a secondary transfer. Rather, as is clear from the summary of his evidence which follows, he offered the opinion that each of a number of transfer scenarios he was invited to consider was "possible", without attributing any degree of likelihood to any of them.

[22]

Dr Bruce's evidence

The Crown Prosecutor invited Dr Bruce to consider a number of mechanisms by which the appellant's DNA might have been transferred to the child's genitalia. Neither in his evidence in chief, nor in cross-examination, was Dr Bruce asked to take into account the locations where vulval swabs 1c and 1d were taken for DNA testing and where the appellant's male DNA was recovered, each of which were proximate to the site of the abrasive injury to the genital tissue.
Instead, by a process of direct questioning in examination-in-chief (understandably without objection by the defendant's counsel), Dr Bruce confirmed that from the information available to him (the detail of which was never elicited), he was unable to determine whether the appellant's DNA detectable in vulval swabs 1c and 1d was transferred to the child's genitalia directly or by (indirect) secondary transfer. He did confirm that "there must be contact with the child's vulva and the appellant's DNA" for the DNA to have been available to be recovered (a proposition which is self-evident).
Dr Bruce also confirmed that the only male DNA in detectable amounts internal to the child's genitalia was the appellant's. Insofar as vulval swab 1d was concerned, he also confirmed that given the positive screening test for blood and the autosomal DNA profiling which identified the same profile as the child within the mixed contributor sample, it was likely that the blood was that of the child. I note that no evidence was adduced at trial as to the likely mechanism or source of the transfer of blood to the gusset lining or, if it sourced from the internal abrasions, no evidence was adduced addressing the likelihood of the child's DNA being mixed with the appellant's DNA at the time of the bloodletting event.
Of the Y-filer profile result referable to vulval swab 1d (similarly with the Y-filer profile in vulval swab 1c), Dr Bruce gave evidence that there was no indication of a mixed DNA profile of males. Those results did not, however, permit him to draw any conclusion as to whether the appellant's (male) DNA was transferred to the genital tissue directly or by secondary transfer. Neither was he able to venture an opinion as to whether the appellant's Y-filer profile indicated a strong or weak source of DNA, largely because when DNA is quantified by a process of purification in the laboratory, all of the DNA is measured and no specific measurement taken of the male DNA that is able to be identified by application of the Y-filer System.
Dr Bruce confirmed, again in answer to a series of leading questions by the Crown Prosecutor without objection, that it was "possible" that if the accused's DNA was on an object or implement that penetrated the child, contact between the item and the child's genital mucosa may result in a transfer of the accused's DNA. Similarly, if the body part of a person was used to penetrate the child's genitalia, and that body part had previously come into contact with the appellant or some object or surface the appellant had touched, it is possible the appellant's DNA may be transferred to the genitalia of the child. He also considered it "possible" that the DNA of the person who penetrated the child (assuming it was a person other than the appellant) but who had come in contact with the appellant's DNA or some object or surface the appellant had touched, might swamp (that is, overtake the appellant's trace DNA) leaving only the assailant's DNA susceptible to transfer. He also gave evidence that were the assailant to have touched the appellant momentarily at some unspecified time during the evening (or it might be readily inferred, momentarily touched some item or surface that had the appellant's trace DNA in residue on it), he would not expect "a lot of transfer of [the appellant's] DNA". He also accepted the "possibility" (again without appointing any degree of likelihood) that in those circumstances the assailant's DNA would be present, together with the appellant's DNA.
Dr Bruce did expect that the child's autosomal DNA, identified in each of vulval swabs 1c and 1d, including her DNA recovered in swab 1f from the labia minora and the swab 1g from the vulval frog position would be the dominant DNA in the mixed contributor samples and that it would be likely to "overwhelm" lower levels of DNA from a foreign source, the more so given that blood is a high yield source of DNA and blood was detected on the application of the screening test. Although the blood was not profiled, it was open to the jury to proceed on the basis that it was the child's blood given the internal abrasions. Dr Bruce was then asked the following question (as to which no objection was taken): Q. So, bearing that in mind, the vulva being [the child's], the blood the child's, and [her] DNA profile being picked up, hers being the dominant DNA and the swamping effect, are you able to say that any further detail in terms of the source of [the appellant's] DNA, the intruder DNA? A: No I can't. I can't make a, a, there's no information. There's not enough information. Q: But does … [the appellant's] DNA have to be rich enough to … fight through the swamping effect. A: It depends on what sort of dilution there is of that DNA in the predominate DNA of [the child]. You, you, could have a 1 in 10 dilution that you, you, wouldn't pick up.
There was no further evidence adduced from Dr Bruce as to whether there was any particular level of dilution of the male DNA relative to the child's DNA.
In cross-examination, Dr Bruce confirmed his acceptance of the possibility that all of the DNA matching the accused's Y-filer profile detected on the child's body or clothing, and those areas of her clothing where the appellant's autosomal DNA could not be excluded as contributing to a mixed contributor sample, could have been transferred indirectly, thereby confirming his evidence in chief that was a "possibility" on the information available to him. Dr Bruce also confirmed in cross-examination his acceptance of the possibility that "a person may have contact with an object or another person, and not leave any detectible amount of their [own] DNA on contact with another person or another object". From that general proposition the following question was asked: Q: Do you accept that in this case, it is possible that a person may have had direct contact with the child's genitals, underpants, and pyjama pants without leaving any detectible amount of their DNA? A: Yes it's possible.
He also confirmed what was referred to in Exhibit AO extracted at [59] above, namely that the process of transfer is affected by a number of factors and current understanding as to the influence of those factors is limited.
Dr Bruce was not invited by defence counsel to take into consideration Dr Tran's evidence as to the degree of force that would need to be applied to inflict the abrasive injuries to the child's genitalia, whether by an erect penis, an object or a finger, when accepting the "possibility" that the "assailant" might not leave any detectable amount of DNA. Dr Tran's evidence was nonetheless evidence the jury were entitled to take into account as part of the body of forensic evidence upon which the Crown relied in proving beyond reasonable doubt that the appellant sexually assaulted the child, with his DNA in detectable amounts internal to the child's genitalia ample evidence of that fact.
Dr Bruce also accepted in cross-examination that since the child was sexually assaulted in the appellant's home, a large number of locations within that home would likely carry deposits of his DNA, either from the shedding of skin cells or from sweat. (It follows that deposits of his wife's DNA would also be in abundance.)
Dr Bruce also accepted the possibility that were the appellant to have laid on a towel and rubbed against it, his skin cells would "possibly" be located in or on that towel, and likely in greater quantities if the appellant was naked when using the towel, similarly, were he to sit on a lounge chair clothed or naked. Dr Bruce also accepted the possibility that skin cells or sweat cells deposited on a towel or other object might be transferred to another person or object by touch, and then transferred by that person to another person or object inadvertently or unknowingly. It would follow, of course, that in the circumstances of this case, and assuming an acceptance of the evidence of the appellant's wife that the towel/blanket she gave to the child's mother was used during intercourse the previous week, her skin cells or sweat could equally as possibly be transferred to the towel.
In re-examination, Dr Bruce confirmed that there were a range of factors, which he described as "a number of variables" that affect the likelihood of secondary and even tertiary transfer of DNA. They included whether the person whose DNA is transferred is a "good shedder" or a "bad shedder" (there was no evidence as to whether the appellant was one or the other); the duration of the contact between the "shedder" and another person (there was no evidence adduced of the appellant having any touch contact with any of the male guests at the party or the disc jockey, BJ); the nature of the interactive surfaces, for example, a more efficient transfer of DNA is onto a porous surface (I note the lounge was not a cloth lounge but a leather lounge, the top of which the appellant's wife said she dusted before the party), and whether there were any intervening acts between a person contacting the surface and leaving their DNA and another person coming into contact with that same surface. As Dr Bruce agreed, "if there was anything that effectively removed any of the DNA that was deposited initially, that could affect the possibility of someone picking it up".
Dr Bruce's re-examination concluded with the following evidence: Q. You were asked a number of scenarios, it was put to you about whether it's possible that DNA was transferred. For example, secondary transfer, tertiary transfer or direct transfer and you said it's possible that DNA can be transferred? A. Yes. Q. When you say "possible", are you going back to certain assumptions you're making? A. When I'm saying it's possible, I'm basing that on - on - on research that's been done on transfer, of my own experience or some research I've done on transfer. So, it's - it's just really information that I have on mechanisms of transfer. That's where I - that's where my answer is coming from, but they're supported by - by peer reviewed research.

[23]

The Crown case at trial in summary

The Crown case at trial was based on a series of interrelated circumstances derived from the evidence which, taken together, were said to prove the appellant's guilt beyond reasonable doubt.
The appellant's DNA (referenced by his Y-filer profile) in each of four discrete locations, two within the child's genitalia (both at the site of an abrasive injury near the child's hymen) and two from her underpants (one from a stain and one from the gusset lining) was a central feature of the Crown's circumstantial evidence case. The Crown also relied upon the fact that the appellant could not be excluded as a major contributor to the autosomal DNA recovered from a mixture of two major contributors of DNA (the child being the other contributor) in other areas of the child's underpants and pyjama pants, consistent with them being pulled down by him before he penetrated her vagina. The Crown suggested that an explanation for the presence of the amylase in the child's underwear (on the assumption that it signalled the presence of saliva) was that the appellant moistened his finger before inserting it into the child's vagina with sufficient force to cause the abrasive injuries identified by Dr Tran and leaving his DNA in detectable deposits in the process.
It was the Crown's submission at trial, a submission maintained and developed on the appeal, that such concessions as Dr Bruce made in his evidence to the possibility of an indirect transfer of the appellant's DNA to the four discrete areas within the child's genitalia and clothing, and the possibility of the indirect transfer of his autosomal DNA in three further discrete areas of the child's underclothing and pyjamas, did not amount to a reasonable hypothesis consistent with the appellant's innocence having regard to all the evidence adduced at trial.
The Crown submitted at trial, as they did on appeal, that the jury were entitled to conclude that Dr Bruce's concessions as to the "possibility" of an indirect transfer of DNA in the various scenarios put to him amounted to no more than an acceptance by him of the competing scenarios as theoretically possible explanations for the presence of the appellant's DNA on the body and clothing of the child and not evidence which compelled them to find a reasonable doubt as to the appellant's guilt. The Crown submitted that Dr Bruce's evidence, taken together with the other evidence in the Crown case, in particular Dr Tran's evidence, was highly probative of the appellant being the person who removed the child's pyjama pants and underwear before penetrating her vulva with sufficient force to cause the abrasive injuries from which she then bled onto the gusset of her underwear. The Crown emphasised that the areas where the appellant's Y-filer profile was detected, being either proximate to or within an area which tested positive for blood or amylase, or both, in the child's underwear, and proximate to the abrasive injuries internal to her genitalia, was powerful evidence of his guilt. It was the Crown's submission at trial, as it was on the appeal, that it was open to the jury to regard the competing scenarios suggested by defence counsel in his closing submissions to the jury as either wholly implausible or not reasonably open and, that being the case, it was open for the jury to conclude that the appellant's DNA was deposited by him in the course of committing the sexual assault with which he was charged.
Anticipating that defence counsel would advance a possible scenario that had the appellant's DNA being transferred from the blanket/towel covering the child (either by her touching the towel/blanket and then touching herself or by the assailant touching it and then undressing the child and assaulting her), the Crown invited the jury to treat the presence of the appellant's male DNA on the gusset of the child's underwear and the inside rim of her pyjama pants as inconsistent with the blanket/towel being the source of his DNA, given that none of the appellant's DNA was recovered from the outer layers of the child's clothing (namely, the lower rim of her singlet, the lower outside rim of her pyjama top and the outside underarms of her pyjama top); areas where the blanket/towel was in direct contact with her clothing, or likely to be. In contrast, the major component of the mixture of DNA recovered on the lower rim of the singlet (outside) was the complainant's mother, whilst the child's DNA was the major component of the mixture on the lower rim of the shirt on the outside.
In addition, in the Crown's submission, the jury should reject as implausible any suggestion that the child had transferred the appellant's DNA to her genitalia or that her parents were the medium of transfer. The Crown emphasised that the child's parents sought to preserve the integrity of any latent forensic specimens on the child by not using toilet paper when the child had finished on the toilet, and not washing her before the sexual assault protocols were applied by Dr Tran the following day.
The Crown also relied upon the opportunity the appellant had to commit the offence and the fact that the assault could have been committed by the appellant moments before GP woke screaming. The Crown also reminded the jury that the appellant knew the front door could be opened from the inside, a factor which, together with his familiarity with the layout of his own home and his knowledge that the child was alone in the darkened living room, would have allowed him entry to and egress from that room without being noticed, and then from the house via the front door when the child screamed before returning to the party via the side gate.
The Crown also placed considerable reliance on the fact that all of the adults who it could be confidently established were in the premises at the time of the assault had been not only identified and spoken to by police, but each had provided a buccal swab which emphatically excluded them as contributors to any of the detectable DNA on the child or her clothing. Police checks were undertaken on all guests; none of whom had prior convictions for sexual assault, or were the subject of police intelligence reports that may have raised a suspicion about them. In addition, they all gave evidence at the trial denying any criminal conduct of the kind alleged against the appellant in their evidence in chief. I note that no attempt was made by defence counsel to explore with any of the guests their knowledge of the layout of the house, including their use of the ensuite, or their knowledge of the presence of the sleeping child in the living room.
Although the appellant denied touching the child when he was spoken to by police, and although he was willing to provide a sample of his DNA because he said he "had nothing to hide", the Crown drew attention to the fact that he also told police that he drank a great deal of alcohol on the night of the party, having consumed close to half of a 1.2-litre bottle of whisky and five to six shots of ouzo, and that he claimed not to remember anything after 9:00pm (later he said 10:00pm) until his wife was "yelling and screaming" that police had been called.
It was the Crown case that the disc jockey (BJ) was not in the premises or even in the process of leaving the premises at the time of the assault. Whilst the Crown acknowledged that at the time of trial BJ was serving a prison sentence for recklessly inflicting burn injuries on his son, the jury were encouraged by the Crown to treat that criminal conduct as materially different from the opportunistic sexual assault on GP committed in the course of BJ's paid employment as a disc jockey.
The Crown dealt with other scenarios it was fairly anticipated defence counsel would advance in his closing submissions. To the extent that it might have been suggested that the assailant wore a glove on the hand that removed the child's clothing and penetrated her genitalia (such as might have explained no deposit of his or her DNA), the Crown emphasised that none of the party goers incorporated gloves as part of their fancy dress costumes (except for one woman who wore a pair of fingerless gloves) and no disposable gloves were found in the house. As the Crown emphasised, both the child's parents and the police were concerned to preserve the integrity of the "crime scene" to ensure that nothing was moved or any incriminating items disturbed. The Crown also submitted that for the assailant to have gloves at their disposal assumes a high degree of planning and premeditation when the assault on GP had all the hallmarks of opportunism.
The Crown also invited the jury to reject any reasonable possibility that the sexual assailant was a random stranger to the household, that is, a non-invited guest who entered the house unnoticed through the (locked) front door, before assaulting the child and leaving the house by the same route (also unnoticed). The Crown emphasised the hypervigilance of both the appellant and his wife in ensuring that the front door was locked from the outside during the party, having directed the guests to enter and leave through the side gate.

[24]

The appellant's case at trial in summary

Defence counsel relied upon Dr Bruce's evidence as the first of a number of matters which he submitted raised a reasonable doubt as to the appellant's guilt, principal among them being that the jury should accept Dr Bruce's unchallenged evidence that indirect transfer of the appellant's DNA was possible and, since they would be directed by the judge that they needed to be satisfied beyond reasonable doubt that the appellant transferred his DNA in the course of assaulting the child, Dr Bruce's evidence compelled them to return a verdict of not guilty.
Defence counsel submitted that the Crown could not exclude the reasonable possibility of a secondary or even tertiary transfer of the appellant's DNA in circumstances where, either after having touched the appellant or after coming into contact with something the appellant had touched, the assailant touched the child's clothing in the process of removing them before penetrating her genitalia, or the assailant used an object to penetrate her genitalia which had the appellant's DNA on it.
Another scenario defence counsel invited the jury to consider involved either the possibility of the child transferring the appellant's DNA from the blanket/towel to herself in the process of touching her own genitalia (either before or after the assault), or the possibility that the child's parents transferred the appellant's DNA to the child in the process of attending to her on the toilet after she was assaulted. As noted above, in anticipating this submission the Crown raised with the jury the improbability of the child inserting her finger inside her vulva to the extent that she touched an area proximate to her hymen, and the improbability of the child's parents touching her genitalia at all, even inadvertently, after they suspected she had been sexually assaulted.
As the Crown anticipated, defence counsel placed considerable weight on the jury accepting the reasonable possibility that the blanket/towel was the source of the appellant's trace DNA either directly transferred to the child's clothing and genitalia by the assailant or transferred by the child or the child's parents. It was open to defence counsel in his submissions to the jury to emphasise that the Crown Prosecutor in her address appeared to assume the evidence of the appellant's wife would (or might be) accepted by the jury. However it was for the jury to consider whether they accepted that an unwashed towel that had been designated for use as an undersheet during intercourse between the appellant and his wife would be selected by the appellant's wife as a makeshift bed cover for a sleeping child.
In addressing the issue of the presence of amylase on the gusset of the child's underwear, defence counsel invited the jury to disregard the Crown's submission that the amylase indicated the possible presence of saliva since it may equally have sourced from the child's vaginal secretions. That being the case, counsel submitted that there was no basis for the jury to proceed to consider their verdict on the basis that saliva was present, thereby discounting the Crown's theory that the appellant had moistened his finger to achieve penetration.
The appellant also relied upon evidence from various of his family members to discount any opportunity he might theoretically have had to assault the child in the limited time frame within which it was agreed the assault was likely to have occurred (that is, between 10:30pm and 11:30pm). These witnesses variously gave evidence (each of them for the first time at the appellant's trial in August 2017) of seeing the appellant in the pergola area at the rear of the house some time after the child's mother went to the front of the house upon hearing the child scream. It was the Crown's submission that the attack on the credit of these witnesses entitled the jury to reject their evidence as untruthful or unreliable. I will consider their evidence in detail shortly.
The remaining areas of evidence identified by defence counsel as raising a reasonable doubt as to guilt can be briefly summarised. They included the reasonable possibility that the disc jockey (BJ) was the assailant and that he assaulted the child on his departure from the house at the end of his shift at 11:00pm, despite his denials under oath that he had any improper dealings with the child at all. Defence counsel also submitted that the Crown could not establish, as a categorical proposition, that all people who attended the party had been called as witnesses in the trial, and that there remained a reasonable possibility that some other partygoer had committed the offence and then hurriedly left the house when the child screamed.
Counsel further submitted that the jury would place no weight on the evidence from the child's father that he saw the appellant standing by the front door of the house after the child had used the ensuite toilet. Counsel submitted that not only is it entirely understandable that as host of the party he would go to that part of the house where the commotion issued from, but, in addition, for him to go to the front of the house at all at that time was inconsistent with him being the assailant given the risk that GP might immediately identify him as the man who had hurt her. Counsel submitted that the appellant's presence near the front door after the alarm was raised, as attested to by the child's father, was a powerful indication that "he had nothing to hide".
Another matter that defence counsel identified as a source of doubt as to the appellant's guilt was his state of intoxication. Given what was said by his counsel to be the "element of precision" in inserting a finger or some object into the child's vagina with sufficient force to cause a bleeding abrasion without causing any other injuries, and "a degree of calculation" and a capacity for quick reaction by the assailant, who left the house without being seen, the extent of the appellant's intoxication rendered it unlikely that he could do any of these things.
A further source of doubt was identified as the appellant's good character and his willingness to participate with police throughout the investigation.
The jury were invited by defence counsel to give careful consideration to the appellant's ERISP and to accept him as "an ordinary man" who had no criminal record and who was "shocked at the situation he found himself in". Counsel submitted that the jury would give weight to the appellant's frank admission that he was so drunk that he had gaps in his memory, but that that was not a matter that the jury would treat as probative of his guilt. In that connection, defence counsel identified other partygoers who had gaps in their memory and who were also unable to account for their movements over the course of the evening for that reason.

[25]

The issues that arise and the principled approach to resolving them

In Merrick v R [2017] NSWCCA 264, the Court at [78]-[79] restated the obligation on the Court when considering an appeal under s 6(1) of the Criminal Appeal Act to do so referable to the settled principles laid down by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, summarised by a majority of the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13.
In SKA at [11] the relevant function to be performed by the Court of Criminal Appeal was that stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: [7] Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. … [9] In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
In SKA at [13], the Court went on to say the starting point in the Court undertaking their independent review of the evidence is that the jury is the body entrusted with the primary responsibility for determining guilt, and that it is the jury which has had the benefit of having seen and heard the witnesses.
In this case, the jury were exquisitely placed to determine the contested credibility of a number of the appellant's family members relevant to the question of opportunity. Although not an approach the parties suggested on the appeal, I propose to deal first with the evidence of those members of the appellant's family and their friends who purport to place the appellant near the pool fence in the outdoor area at the rear of the premises at the time the alarm was first raised by the child's scream. It seems to me to follow that if their evidence was capable of being regarded by the jury as credible and reliable, the jury, acting reasonably, might have (perhaps even should have) elevated the possibility of a secondary transfer of the appellant's DNA to the extent of it supporting a reasonable hypothesis consistent with his innocence, in turn supporting the appellant's challenge to the jury's verdict as unreasonable and unsupported by the evidence in accordance with s 6(1) of the Criminal Appeal Act. It would also follow, however, that if the jury were entitled to either disregard entirely the evidence of those witnesses who claimed to have seen the appellant in an area of the house distant from the place where the child was assaulted, or to accord that evidence little weight in their deliberations, they might also have been less inclined to accept the reasonable possibility of secondary transfer of the appellant's DNA as an innocent explanation for its deposition in those areas where it was detected on the child's body and clothing, or those areas where his DNA could not be excluded as a major contributor to a mixed sample with the DNA of the child.
Before turning to the evidence of these witnesses, as part of my independent assessment of all the evidence at trial as to its sufficiency and its quality (see M v The Queen and restated in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53), as this Court emphasised in Merrick at [79], in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] Hayne J stipulated that a jury's verdict will not be overturned if the appellant shows no more than that it was open to the jury to reach a different conclusion. As his Honour emphasised in the same passage: … the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.

[26]

The witnesses to the appellant's quasi alibi

The appellant's wife gave evidence that she was "around the pool area" when her cousin's daughter, Stephanie Todeski, approached her and said "Betty you'd better go inside". On investigation, she saw the child's parents with the child on her father's lap sitting on the floor against a wall in the kitchen. She said that the child's mother reported finding the child "with her pants down". The child's father apparently thought his wife was overreacting and perhaps the child simply needed to use the toilet, after which the child's mother took her to the ensuite bathroom. She then heard the child's mother scream out for her. She said that when she was speaking to the child's parents in the kitchen, she did not see anyone in the kitchen, and that when she went to the ensuite bathroom she did not see anyone.
Upon entering the ensuite bathroom, the appellant's wife saw what looked like a spot of blood on the child's underpants, the child being seated on the toilet with her pyjamas and underpants around her ankles. She said she then went to the rear of the house and said in a loud voice, "Nobody move. Nobody is allowed to leave". She gave evidence that her daughter and her daughter's friend locked the site gate with a padlock such that the only egress from the backyard was over the fence.
The appellant's wife gave no evidence as to the whereabouts of her husband at any relevant time before, at, or after the alarm was raised by the child's mother. She gave evidence supporting her husband's good character and his active role in fathering their daughters. She said that she had seen him drunk on many occasions. She said that he normally dances on tables when drunk. She had never had any reason to have concern about his behaviour towards others, even when he was drunk. She gave evidence that his state of intoxication on the night of the party was no different to other occasions when she had seen him intoxicated.
The appellant's daughter, Jessica (aged 23 as at 21 March 2015) gave evidence that when she heard the child's mother scream (she said she did not hear the child scream) she saw the appellant "out of the corner of her eye" leaning on the fence under the pergola near the pool with Dominique Sun (her friend) and Tod Pepelasev (her cousin). She said when she heard the child's mother scream she was standing in the pergola area in the doorway of a sliding door which leads into the family room.
Jessica had provided a number of statements to police prior to giving evidence, the most recent on 22 August 2017 after a conference with the ODPP where she was invited to read her statement to ensure it was accurate and complete. In neither that statement nor her statement of 26 March 2015 did she refer to seeing the appellant in the pool area. She gave that account for the first time in her evidence at trial. The jury were aware of that as a result of the Crown being granted leave to cross-examine her under s 38 of the Evidence Act 1995 (NSW). Under cross-examination, Jessica denied giving a fabricated account of the whereabouts of her father to assist his defence. Under cross-examination by the appellant's senior counsel she said it was only in the days before the trial commenced that she became aware of the potential significance of the appellant's movements at various times during the evening after discussing the matter with her sister, Elica. She said that it was only then that it "hit home". She also said that she was discouraged from changing her statement in other respects in the conference with the ODPP and because of that experience she did not inform them of her sighting of the appellant.
The appellant's older daughter, Elica (aged 25 as at March 2015) also gave evidence that when her mother emerged from the house and directed people not to leave she recalled her father approaching her mother from the pool area and asking her what was going on. She also agreed under cross-examination by the Crown (also with leave) that she had not earlier told either police or the ODPP about seeing her father speak to her mother when her mother ordered nobody to move, despite it being made clear to her as recently as August 2017 that she should bring any additions or errors in her statement to the attention of the DPP solicitor. She says she was getting "flashbacks" when she read her statement sometime the previous week. She denied discussing her evidence with Jessica after she had given evidence.
Todd Pepelasev arrived at the party with Dominique Sun. He gave evidence that after group photograph was taken (a time when the party was still underway) he got changed into shorts and he and Dominique went into the pool. The appellant's wife gave evidence that the group photograph was taken and the cake was cut at around 10:30pm, after which the disc jockey packed up and left and a stereo was connected and music continued. The appellant was in the group photograph.
Mr Pepelasev said he got out of the pool when either his aunt (the appellant's wife) or the appellant told him to get out and not go anywhere as the police were on their way. He gave evidence under cross-examination by the appellant's counsel that he was in the fenced pool area for 10 to 15 minutes before he was told to get out and he had a memory of seeing the appellant outside the fenced area in the pergola area when he was in the pool. He gave evidence that the appellant was in the pergola area for most of the night. He said whilst he was in the pool he took a video on his phone which he provided to police. The appellant was not shown in the video. Under cross-examination by the Crown with leave he agreed that there was no mention of seeing the appellant in or around the pool area at any time his first statement to police in April 2015 and, when he reviewed the statement in preparation for court, he agreed that he said to police, "it's really hard to remember. It's so long ago". When he was asked specifically by police whether he had remembered anything else he said, "No, it was so long ago".
Stephanie Todeski was also a guest at the party, with her parents and her brother. She gave evidence that during the course of the evening she was inside the house near the kitchen when she heard the child's mother "screaming down the corridor for [the appellant]". She said she turned and looked into the outside area for the appellant but did not see him. She said it was crowded in that area. She said she went back inside with the intention of checking the time on her phone when she saw the child on her father's lap and her mother standing beside him. She said she heard the child's mother say she was going to take the child to the toilet in the ensuite. She said that a few minutes later the child's mother came running down the corridor screaming for the appellant again. She said that the child's mother asked her to get the appellant but then said, "Go get Betty [the appellant's wife] instead".
Stephanie said she found that appellant's wife and said "I think you need to go inside". She said after that, the appellant's wife instructed everyone not to move and the music was turned off. She said that she went with Jessica to the front yard via the side gate to make sure that nobody was out the front of the house and she saw no one there. She noted that the front door was closed.
Ms Todeski was also the source of character evidence adduced in cross-examination by the appellant's counsel. She said she was aware of the charge and that in her assessment the appellant was one of "the most decent men" she knew and that she "trusted him 100%". She said she had known him for over ten years having first met him when she was a teenager. In her profession as a high school teacher she said she had completed courses in child welfare and had never seen any reasons to be suspicious of the appellant in her interactions with him. She considered that he was not capable of committing the offence. She said she had seen him drunk on other occasions but that he had never acted inappropriately.
In cross-examination by the accused's counsel and with her attention focused on what she observed of the people in the pergola area when the child's mother came down the hallway calling out for the appellant, she gave the following evidence: Q. … You then turn to look over to see if you could see Spase? A. Yep. Q. And you turn to the general pergola area? A. Yep. Q. When you look back, [the child's mother] is no longer in front of you, she's - A. Gone, I can't tell you where she went. Q. You then stepped into the backyard? A. Yep. Q. Are you able to say whether, at that point, you were able to sight Spase? A. I do recall at some point following the event where two gentlemen jumped into the swimming pool. I recall the fact that Spase was standing against the pool fence with his arms over it, telling the boys to get out of the swimming pool. Q. When do you have a memory of that happening in relation to [the child's mother] first coming down the hallway? A. I know - I can recall that the gentlemen jumped into the swimming pool after the cake was cut, but before [the child's mother] came running down - because I remember everyone was standing around the pool watching them act - you know, drunken idiots jumping into a swimming pool, I was kind of - I was tired, I had work the next day, I was cold, so I decided to go back into the house. Q. This was, I take it, before - A. Before [the child's mother] - just before [she] came running down the corridor screaming, you know "I found my daughter with her pants pulled down". Q. And are you say it is at that point that you see Spase by the pool fence area? A. Look, it was two and a half years ago, I can't tell you for a 100% certain he was exactly by the fence, but I can tell you a 100% certain (as said) he was not in the living area - in the area where the tables were set up for the adults, nor was he in the kitchen area. Q. But you have a memory of seeing him? A. Yes, I have a memory of seeing him outside by the pool fence telling the boys to get out. Q. And this was at a time around about the time that [the child's mother] came down the hallway screaming out for him, is that your position? A. Yep, yes, yes.
The Crown was granted leave to cross-examine Ms Todeski after she gave that evidence. She agreed that she made her statement to police ten days after the child was assaulted, and that she was careful to tell police everything that she remembered with accuracy. She agreed that her memory was better at the time than when she gave evidence, and agreed that she had read her statement before giving evidence "quite a few times". She agreed that she had conferred with the ODPP on 23 and 24 August, and that in each conference she was invited to read her statement and to let the solicitor know if there were any additions to it, or any errors that needed correction. She agreed that she had the opportunity on the day of trial to communicate any errors or additions to her statement to the police officer that she knew was in charge of the investigations. She confirmed that the first time that she disclosed seeing the appellant by the pool "just before the child's mother came out of the living room screaming" was in her evidence that day. She said she did not disclose that fact to either the police or the ODPP prior to giving evidence because: Today as I was reading through the statement for the 50th time … I cannot give you a time stamp, but I have a vivid memory in my mind of Spase standing by the swimming pool telling the boys to get out. Now, I cannot tell you what time that was.
Ms Todeski marked on a floor plan of the house where she claimed to see the appellant standing by the pool fence. She said she did not know how long he was there for, but that he was with a group of other people who she could not nominate. She said she did not know where the appellant was between the time that she saw him at the pool fence and the time that she saw the child's mother in a state of distress. When asked why she did not report her observations to the ODPP or the police, she said "I cannot give you an answer for that". She claimed not to have appreciated the significance of the appellant's whereabouts when she made her statement and when she conferred with Crown officers prior to trial.
Dominique Sun did not give any evidence of seeing the appellant at any relevant time. He gave evidence that it was the appellant's wife who told him and Todd to get out of the pool and to get dry and sit down as the police were coming: Q. At some point, you and Tod were in the pool? A. Yes. Q. You were in the pool. Whilst you were in the pool, do you know where Spase was? A. I can't remember. Q. After some commotion had happened, I think something was said by the little girl's mother? A. Yep. Q. After some commotion happened in the house, do you understand? A. Yep. Q. There was some commotion? A. Yep. Q. There was some screaming. After that point, at some point, were you told to get out of the pool? A. Yes. Q. Who told you that? A. Jess' mum told us to get out of the pool. Q. What did she say about that? A. She told us to get out of the pool and dry up and sit down. Q. Did she say the police were coming? A. Yes.

[29]

The Crown's submissions on the appeal

In the Crown's submission, the concessions from Dr Bruce as to the "possibility" of the indirect transfer of the appellant's DNA in discrete deposits internal to the child's genitalia and on her clothing should be understood by this Court as constituting nothing more than his acceptance of the "theoretical" possibility of secondary or indirect transfer consistent with the fact that DNA is notoriously transferable. The Crown also emphasised that Dr Bruce was not qualified as a forensic pathologist and no questions were directed by either counsel at trial as to whether he had an appreciation of the anatomy of the child, in particular the precise areas internal to the child's genitalia from which the vulval swabs 1c and 1d were taken.
On the appeal the Crown submitted that a number of propositions follow from Dr Bruce's evidence and the consideration he was asked to give to various scenarios where he accepted the possibility of a secondary transfer of the appellant's DNA, by another person consequent upon that person touching the appellant or some item with which the appellant had direct contact. The first is that the child's DNA would likely overwhelm (or swamp) lower levels of trace DNA from a foreign source, such that a scenario in which the appellant's trace DNA (from his skin cells or sweat) was transferred to the assailant or to some object wielded by the assailant and then transferred to the child without the assailant's DNA being detected was said by the Crown to be highly unlikely.
Although not the subject of specific mention by the Crown Prosecutor in her closing submissions to the jury, as the Crown emphasised on the appeal, it was open for the jury to consider that any incidental or momentary touching of the appellant's skin by the assailant, or any incidental or momentary touching of a surface or item within the house with which the assailant had "touch contact" would result in a limited amount of trace DNA available to be transferred to the child in the course of the commission of the offence. This was said to be in contrast with the deposits of the appellant's DNA (from his finger or penis or some object he was wielding) being transferred directly at that time.
The Crown also drew attention to Dr Bruce's evidence where he addressed the likelihood of the appellant's trace DNA being "swamped" by both the complainant's DNA and the assailant's DNA were the assailant to have moistened their finger with saliva before penetrating the child, thereby leaving it open for the jury to find that the appellant's DNA was the result of the direct transfer of his skin cells on his finger moistened with his saliva. As the Crown emphasised on appeal, it was open to the jury to convict the appellant if they were satisfied beyond reasonable doubt that his DNA was transferred directly to the child's genitalia by this mechanism, a mechanism which the Crown submitted the jury would be satisfied was employed by him in an opportunistic assault on a sleeping child.
The Crown submitted the jury were also entitled to reject a gloved hand or finger or a manipulated physical object as the mechanism of penetration by an unknown assailant suggesting, as it does, pre-planning and considered intent.
The Crown submitted that it was open to the jury to reason to a finding of guilt by the following approach to the forensic evidence adduced at trial as part of the Crown's circumstantial evidence case. At the outset the Crown submitted that the hypothesis that the child picked up the appellant's DNA from the blanket/towel onto her hands, and then by touching herself and her clothing, transferred the appellant's DNA to those locations where it was found in detectable amounts, was implausible. The Crown conceded that whilst that hypotheses may have been a plausible explanation for the appellant's autosomal DNA on the tape-lift from inside the top of the child's underpants (R2) were that the only location from which his DNA was recovered, his autosomal DNA was also recovered on the inside and outside of the top of her pyjama pants (R4 and R5). The Crown relied on this evidence, together with the appellant's DNA being deposited internal to the child's genitalia and on the inside of the gusset lining of her underwear (in an area which tested positive for blood and amylase), as not merely consistent with the appellant pulling down the child's clothing on her lower body (as she was found by her mother) before her vulva was forcibly penetrated with a saliva-moistened finger but that the jury would conclude that is, in fact, what occurred, and to make that finding beyond reasonable doubt.
As the Crown emphasised, to accept that the blanket/towel covering the child was the source of the multiple sites where the appellant's DNA was deposited required the jury to accept as plausible not only that a potentially soiled covering would be given to the child's mother by the appellant's wife, but also to accept the reasonable possibility that either the four year old child inserted her finger into her vulva in exploration of multiple abrasive injuries inflicted without warning and in the moment before her mother arrived, or that some object penetrated her labia majora causing the abrasive injuries, without any trace of the assailant's DNA being left in the process.
The Crown submitted that the jury were entitled to reject both hypotheses as remote or not reasonably open having regard to Dr Tran's evidence that the genitalia of a four year old child often does not "open" at all, even with a child lying prostrate on her back, and that in this case traction had to be applied to GP in order to expose her hymen and the abraded genital mucosa.
The Crown submitted that to the extent that the appellant relied on the child's mother's evidence of a single occasion in the past when the child touched her genitals, in support of the submission that the child might have touched her genital area either before she was assaulted or after she was assaulted, transferring the appellant's DNA to her genitalia and her clothing in the process, the jury were entitled to reject that evidence as providing no rational support for the scenario advanced by the defence.
In short, the Crown submitted that it was well open to the jury to regard the possibility of indirect transfer in a range of scenarios posited by defence counsel as having been excluded by the Crown since none of them provided a real or rational explanation for the appellant's male DNA both within the genitalia of the child and/or on discrete areas of her clothing, or a real or rational explanation for the fact that his autosomal DNA could not be excluded in those areas where a mixed contributor DNA sample was recovered. The Crown submitted that with no other hypothesis consistent with innocence available to be considered by the jury, this Court would come to no different conclusion to that of the jury.
Although in its submissions on the appeal the Crown relied upon an implied admission by the appellant in a conversation with the child's mother (as to which see [158] below), for the reasons that will follow in dealing with the second ground of appeal, I am of the view that evidence should not have been admitted. Accordingly, in considering the first ground of appeal that evidence had been disregarded.

[30]

Does Fitzgerald dictate that Ground 1 must be made out?

Fitzgerald was charged with one count of murder and a second count of aggravated causing serious harm with intent to cause serious harm contrary to the Criminal Law Consolidation Act 1935 (SA). It was the Crown case at his joint trial with a co-accused, Sumner, that he participated in a joint criminal enterprise to cause grievous bodily harm to the occupants of a house into which entry had been forced. One victim of that forcible entry died as a result of injuries inflicted with a garden fork and a pole. Another person sustained serious brain injuries.
Fitzgerald and Sumner were convicted on both counts. It was not the prosecution case at trial that either Sumner or Fitzgerald inflicted the fatal blow on the deceased, or the blows that caused serious injury to the other man. Rather, it was the Crown case that they were both participants in a common plan to cause grievous bodily harm to the occupants; the mens rea sufficient for a verdict of guilty on both counts. The issue at the appellant's trial was the sufficiency of the evidence to establish that he was a participant in that plan and that he was present when entry was forced and the violence inflicted.
It was an agreed fact at Fitzgerald's trial that the six people who were present in the house during the attack failed to identify the appellant from a photographic array. There was also evidence adduced at trial that Sumner had visited that house two hours before the attack and was involved in several physical altercations with one or more of the occupants, one of which was described as a "play fight" which resulted in the lip of the deceased being split. At one stage during that incident, Sumner sat on a freezer in the kitchen near where a didgeridoo was located. After that incident Sumner was chased away from the house by the deceased, in the course of which verbal threats were exchanged. Sumner gave unchallenged evidence at trial that before visiting the house, he had attended a boxing match also attended by Fitzgerald, at which time he had occasion to shake hands with him twice.
DNA results were generated from a number of samples taken from a variety of objects in the house, five of which were taken from a didgeridoo. The appellant was excluded as a contributor of DNA to all samples, save for one which contained a mixed DNA profile of major and minor contributors. The appellant's DNA was identified as the major contributor to that sample and an unknown person as the minor contributor. Sumner's DNA was not identified on the didgeridoo at all.
Various witnesses gave evidence that the didgeridoo was normally kept in the laundry of the house. One witness gave evidence that during the course of the attack she used the didgeridoo defensively, removing it from where she found it next to the freezer in the kitchen. She gave evidence that she put it back in that position when commanded to by the intruders and that she did not take it into the lounge room. The didgeridoo was found in the lounge room in close proximity to where the deceased was found. There was no evidence as to how the didgeridoo came to be in the lounge room and no direct evidence that it was used in the attack.
The presence of Fitzgerald's DNA in one of five samples taken from the didgeridoo was not challenged at trial. It was the prosecution case that his DNA, together with apparent bloodstains containing the DNA of the deceased and the other man who was injured, was sufficient to prove the appellant's presence at the scene as one of the intruders. The prosecution case depended upon the jury being satisfied beyond reasonable doubt that Fitzgerald's DNA was directly transferred to the didgeridoo at the time of the attack.
Although Fitzgerald's DNA was recovered from an area which showed "reddy-brown stains", and although those stains tested presumptively for the presence of blood (cf confirmatory of blood), the evidence from the qualified forensic expert called in the Crown case was that that did not establish that the DNA in the sample derived from blood since the appellant's DNA may have been under the stain - that is, on the didgeridoo when blood (if it was blood) was applied to it in the course of the attack. The expert witness went on to give evidence that although it was likely that Fitzgerald's blood was the medium of transfer, blood being a richer source of DNA than epithelial cells, she accepted that it was "possible" that the appellant's DNA was derived from a source other than blood. She gave evidence that "it was difficult to conclude from the yield of DNA that we obtained … that the DNA did come from blood", conceding the competing possibilities that the appellant's DNA could have been the product of a deposit of his saliva or the transfer of his epithelial skin cells, via a secondary transfer from Sumner to the didgeridoo, which it was open to the jury to conclude Sumner used in the attack in some way, or with which he had contact when it was used defensively by one of the people in the house in the course of the assault.
The same forensic expert explained the nature of DNA and its transferability, either per medium of biological fluids or through skin contact. She also gave evidence (consistently with Dr Bruce's evidence) that some people "shed" contact or trace DNA more readily than others. She also explained the differences between "primary and secondary transfer" in uncontroversial terms (also consistently with Dr Bruce's evidence at the appellant's trial).
The forensic expert also gave evidence that the most likely way for "contact or trace DNA" to transfer was through primary rather than secondary transfer, although the possibility of secondary transfer remains within a few hours of contact with the person whose DNA is recovered, even in circumstances where the intermediary's DNA is not necessarily transferred at the same time. She also gave evidence that she was aware of only one example of this occurring in the relevant literature.
In concluding that the South Australian Court of Criminal Appeal was in error in confirming Fitzgerald's conviction, the High Court acknowledged that although the expert's evidence was that a primary transfer is a much more likely source for the recovery of trace DNA, she also accepted that a secondary transfer was possible. The High Court emphasised that there was no issue at Fitzgerald's trial that there were at least two distinct occasions on which a secondary transfer of his DNA to the didgeridoo may have occurred: at the boxing match when Sumner shook hands with the appellant at about 10:30pm the night before the home was invaded at 4:00am; and again at 6:00am the following morning. The Court also concluded that where neither the time nor the circumstances in which Fitzgerald's DNA was deposited on the didgeridoo were known, and where the recovery of his DNA raised no inference from which the timing of deposition or the circumstances of deposition might be established, the prosecution's reliance on the single sample of his DNA from the didgeridoo was insufficient to establish beyond reasonable doubt that he was present at and participated in the attack on the deceased and the secondary victim of the attack.
It was on that basis that the Court concluded that the jury, acting reasonably, should have entertained a reasonable doubt as to the appellant's guilt: M v The Queen. The Court further concluded that the alternate hypothesis consistent with the appellant's innocence - the hypothesis that Sumner transferred Fitzgerald's DNA to the didgeridoo on his first visit to the house - was "not unreasonable" and that the prosecution had not excluded it as a reasonable possibility consistent with Fitzgerald's innocence. In reasoning to that conclusion, the Court accepted the submissions advanced by the respondent Crown that evidence supporting the inferences compatible with the appellant's innocence should not be considered in isolation from the rest of the evidence.
The Crown submitted that Fitzgerald can be readily distinguished from the facts this Court has available to it (the facts that were revealed by the evidence at the appellant's trial) by the obvious difference between a deposit of DNA on a moveable object potentially implicated in a murder in a house where the evidence established two distinct occasions where Fitzgerald's trace DNA might have been transferred to that object, and the present case where there were multiple deposits of the appellant's DNA inside the genitalia of a child who was sexually assaulted in a limited time frame of no more than one hour (between 10:30pm and 11:30pm); where there was no DNA in detectable quantities of any other person who might have qualified as a candidate for the assault either on or in her genitalia or on her clothing, or any candidate who might reasonably have qualified as the transferor of the appellant's DNA, and no specific circumstances where it might reasonably have been possible for the appellant's trace DNA to be available in sufficient deposits to be transferred by another person without that person's DNA also being detected.
On the Crown's analysis, an important point of distinction between Fitzgerald's case and the present case was the presence of the appellant's DNA internal to the child's genitalia as opposed to the DNA in Fitzgerald's case being on an inanimate and portable object that could have been touched at any time prior to its use as a murder weapon or its implication in a murderous assault. The Crown submitted that the evidence in Fitzgerald's trial of two identifiable occasions when the secondary transfer of his DNA to the didgeridoo could have occurred (and in particular per medium of Fitzgerald's co-accused, Sumner), is in direct contrast to the appellant's trial where the medium of secondary transfer of the appellant's DNA by someone else (whether the child, the child's parents or the assailant) was entirely speculative.
In meeting that submission, in the appellant's written submissions it was contended: There is nothing "speculative" in raising the possibility that people in the house for some hours may pick up on their hands DNA from the owner of the house. There is nothing "speculative" in raising the possibility that the perpetrator must have touched the towel placed over [the child] in order to commit the offence, in circumstances where the Crown Prosecutor told the jury the Crown "readily accepts" that the appellant's DNA would have been on the towel. There is nothing "speculative" in raising the possibility that a four-year-old child might touch the same towel whilst it is draped over her. There is nothing "speculative" in raising the possibility that the DNA found in the child's underwear was transferred there when her parents pulled the underwear up and down.
In my view, even were the jury to have accepted that the appellant's DNA was in random trace deposits throughout his house, and even were they to have accepted that the appellant's wife allowed a towel upon which she and her husband had had intercourse to be used as a covering of a four year old child (a proposition which I consider the jury were entitled to regard as so highly questionable as to be disregarded), for the jury to have been obliged to accept the reasonable possibility that the towel was the source of the appellant's trace DNA transferred indirectly into the child's genitalia, was inextricably linked to them accepting as reasonably possible only two scenarios involving secondary transfer of his DNA collected from that source, each of which, in my view, the jury were entitled to reject as implausible, such that neither of them gave rise to a reasonable hypothesis consistent with the appellant's innocence. The first is that the child inserted her own fingers deeply inside her genitalia after touching the towel leaving the appellant's DNA in the process. An acceptance of the "towel scenario" as the mechanism by which the appellant's DNA was deposited inside the child's genitalia (or a mechanism which was reasonably open) would also require the jury to accept the reasonable possibility that a four year old child inserted her finger past her labia majora, passed her labia minora and into her vulva, after she had been penetrated with force sufficient to cause abrasive injuries, or the reasonable possibility that she penetrated herself before she was assaulted. For my part, I regard it as unsurprising that the jury rejected both hypotheses, particularly given Dr Tran's evidence that the genitalia of a four year old female child does not open (even with the child lying on their back) such that for the child to manipulate her own hand or finger in the way suggested by the appellant's counsel is so implausible as to be rejected.
The second scenario is that the assailant penetrated the child such as to cause internal injuries without leaving any detectible deposit of his or her DNA in the process. The Crown submitted, and I accept, that both scenarios whilst theoretically possible were equally as speculative, that is, not reasonably possible in all the circumstances.
The Crown also submitted, and I accept, that the suggestion at trial of the secondary transfer of the appellant's DNA was also speculative in the sense that there was no evidence of anyone touching the child's vagina at any time proximate to the time the child was assaulted (including her parents) and, save for the fact that the appellant's house might be considered as containing trace deposits of his DNA, for it to remain on the assailant and then to be deposited in six separate locations on the child and internal to her genitalia without any evidence to suggest another foreign source of DNA, is a materially different factual scenario than that which was under consideration by the High Court In Fitzgerald.
Notably, what the appellant's submissions in reply do not address is the basis upon which the jury should have accepted as a reasonable possibility that the child penetrated her own genitalia (whether before or after the assault does not to my mind make any material difference) or the circumstances in which it remained a real, as distinct from a remote possibility, that the assailant deposited DNA into the child's vagina in the course of committing the assault, either by an object, an erect male penis, or a gloved hand, leaving only the appellant's DNA in detectable deposits in the process.
To my thinking, it is these various features of the evidence in the present case which readily distinguish the approach of the High Court in Fitzgerald such that their Honours' conclusion that the jury's verdict could not be sustained does not compel this Court to reach the same conclusion.

[33]

Ground 3

The child's mother gave evidence that on 29 March 2015, she had a conversation with the appellant after he had provided a buccal swab to the police. She noticed that he was crying when he said words to the effect that he felt like a criminal because of the way that the DNA was taken and that he did not have a choice about it. The child's mother gave evidence that the appellant then said something similar to being unable to remember what happened on the night of the incident after he had poured some scotch until the arrival of police. She gave evidence that he went on to say: I've been drunk a lot of times but nothing like this has happened before, and I am upset because I cannot tell you for sure that I didn't do it because I can't remember.
That evidence was admitted over objection. At trial, the appellant submitted that the evidence, although relevant, ought to have been excluded under s 137 of the Evidence Act since its probative value was outweighed by the danger of unfair prejudice. The appellant submitted, both at first instance and on the appeal, that given the admissions made by the appellant in his ERISP to the effect that he was unable to remember significant parts of the evening's events because he was drunk, for him to volunteer to the child's mother that he could not be certain he did not assault the child, was evidence of limited probative weight in proving his identity as the assailant beyond reasonable doubt, being the fact in issue at trial. In addition, the appellant submitted that since the evidence was not admitted as an admission of guilt, or evidence from which a consciousness of guilt might be inferred, and the jury were directed accordingly, the ultimate use to which the evidence may have been legitimately put by the jury was so arcane that for that reason alone it should never have been admitted.
In ruling on the admission of the evidence, and after expressly referring to the limitation on its use, his Honour said: I am satisfied that, with that limitation on what the Crown can contend in relation to paragraph 8 [the evidence under challenge] the material is relevant to a fact in issue - and that is whether or not this accused [penetrated the child's vagina]. The fact that he cannot remember doing it, whilst of little weight in itself, is of some relevance in determining whether the Crown (based on the circumstantial evidence it wishes to adduce) has proved his guilt beyond reasonable doubt.
The child's mother also said that she subsequently received a text message from the appellant in which he said "I'll never drink again". The trial judge directed the jury as to the use they could make of this body of evidence as follows: One tranche of evidence that relates to [the appellant] that I want to say something to you briefly about this afternoon is the conversation which he had with [the child's mother] on 29 March 2015. She said that, in that conversation, [the appellant] was crying. She agreed with the following question from the Crown Prosecutor: Q. You can't recall exactly what [the appellant] was saying but he made reference to feeling like a criminal and that was because of the way the DNA was taken, and the fact that it had to be recorded, and he did not have a choice about that? [The child's mother] told you that she had explained to [the appellant] it was the same procedure for her and her husband as well. [The child's mother] then agreed with the following question from the Crown Prosecutor: Q. [The appellant] then started saying something similar to he couldn't remember what happened that night. He couldn't remember after sitting down with Andrew pouring Scotch until the police arrived. He said, 'I've been drunk a lot of times but nothing like this has happened before and I am upset because I cannot tell you for sure that I didn't do it because I can't remember. [The child's mother] then agreed with the proposition from the Crown Prosecutor that she did not recall exactly what she said, but she reassured him that everything was okay. I want to give you two directions about that piece of evidence. First, human memory of what was said in a conversation is fallible because of a variety of reasons; and, ordinarily, the degree of fallibility increases with the passage of time. In this case [the child's mother] accepted that she first made a record of the conversation a month after it happened when she made a statement to police on 30 April 2015. She also accepted that she was not able to give a completely accurate account of what he said, although in re-examination she thought it would have been pretty accurate. I must tell you that confidence of recall does not necessarily prove a good guide to accuracy. Secondly, even assuming that the evidence she gave of what was said by [the appellant] was completely reliable, I direct you that you may not use the evidence to infer that he was implicitly admitting his guilt of the offence charged, or demonstrating in some way that he was conscious of his guilt of that offence. Thus, you may not use the evidence that the accused said he felt like a criminal when asked to provide a DNA sample, to infer that he felt that way because he knew he was a criminal. That would be illogical and I direct that you must not reason in that way. You may use what was said by him - that he was very intoxicated on the night of the party and had gaps in his memory about that night - as evidence of those two matters only, but not to infer that he was guilty because he knew or believed that he had committed the offence charged. Again, that would be illogical and you must not reason in that way. Equally, regarding the text messages, you may take into account the accused's statement, "I'll never drink again", as confirmation by him that he was very drunk on the night of the party but for no other purpose. It would be quite illogical to infer some implication that he had committed the offence charged, and you must not reason in that way.
In the Crown's written submissions on the appeal, the submission was maintained that in the context of a circumstantial evidence case where the Crown was obliged to eliminate other guests as potential assailants, the appellant's statement that he was too drunk to say conclusively whether or not he assaulted the child, when considered with the preponderant weight of the DNA evidence that forged a direct link with the assault, went directly to proof of a fact in issue; namely, that the appellant could not be eliminated as the assailant. The Crown also submitted that in light of his Honour's clear directions on the limited use to which the jury could put the evidence, in particular that they may not use it to infer an implicit admission of guilt or as revealing a consciousness of guilt, the evidence was properly admitted in the sense that there was no warrant for it to be excluded under s 137 of the Evidence Act.
In oral submissions, however, the Crown clarified his written submissions to ensure that the Court did not understand that the Crown was relying upon what the appellant reportedly said to the child's mother as some "de facto consciousness of guilt". The Crown, who was not the Crown at trial, also frankly acknowledged that he was "perplexed" as to how, if the evidence was not admissible on that basis (or as an implied admission of guilt) it was admitted into evidence at all. Although the Crown did not concede that the evidence was admitted in error, he conceded that if the Court were satisfied that the evidence should have been excluded under s 137, he would not seek to invoke the proviso.
The Crown's declared position on the appeal is both fair and insightful. Whilst the evidence might have satisfied the low threshold test of relevance in s 56 of the Evidence Act for the reasons articulated by the trial judge, the probative value of the appellant being unable to say that he did not commit the offence (because of his state of inebriation) was so slight that, despite the trial judge's directions, there was a clear risk that the jury would attach some additional prejudicial significance to the appellant's statement which, pared to its essence, went no higher than his claim that he had no memory of significant parts of the night. Since this evidence was neither an admission or evidence from which a consciousness of guilt could be inferred, it had the potential to be misused by the jury.
Although this Court should proceed on the assumption that a jury will abide by the trial judge's directions as to the use to which contested evidence might be put, in the unusual circumstances of this case, this particular aspect of the evidence carried a real risk of unfair prejudice in circumstances where, properly understood, it was evidence of very limited probative value.
I would uphold the second ground of appeal.
I propose the following orders: 1. Leave to appeal against conviction is granted. 2. Appeal against conviction is allowed. 3. Conviction and sentence are quashed. 4. Remit the matter to the District Court for a retrial.
CAMPBELL J: I have had the considerable advantage of reading Fullerton J's judgment in draft. I agree on my review of the evidence at trial that it was open for the jury to convict the appellant for the reasons her Honour gives. I also agree that ground 2 has been made out. I agree with the orders her Honour proposes.

Ignatov v R

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