R v Debs [2007] VSC 169

2 I expressed the initial view that, in my opinion, the answer to that question would depend on how the jury viewed the other evidence relating to the issue whether the accused had unprotected sexual intercourse with the deceased at the crime scene. It was, therefore, my preliminary view that I should direct the jury that if, on their analysis of the facts, they considered the evidence relating to the absence of seminal staining on the crutch of the deceased's underpants to be an indispensable part of the Crown case, then they must be satisfied as to that evidence beyond reasonable doubt.

3 Having ventured that view, I then had a discussion with counsel. Initially, Mr Dane, of Queen's Counsel, who appears with Ms Spowart for the accused, and Mr Tinney, who appears to prosecute, did not agree with the view that I had expressed and each submitted that I, myself, should determine whether that part of the Crown case was (to adopt the analogy used in the authorities) a strand in the cable or a link in the chain in the Crown's case. However, after I stood the matter down, both counsel had the opportunity to give the matter further reflection and, on return to court in the afternoon, they agreed with the preliminary view that I had expressed.

4 I have taken the opportunity over the weekend to give the matter further consideration. Having done so, I adhere to the initial view which I had ventured on Friday and I consider that that view is the correct view.

5 It is common ground, and correctly so, that it is an indispensable part of the Crown case that the accused man had unprotected sexual intercourse with the deceased at the crime scene. Thus that fact must be proven beyond reasonable doubt.

6 The Crown relies on a process of inference in order to prove that fact. In analysing that process of reasoning, it is, in my view, essentially a factual question for the jury whether it is an indispensable part of that reasoning process, firstly, that there was no seminal stain deposited in the crutch of the underpants of the deceased and, secondly, that the reason for that absence is that the deceased had not put on her underpants after having intercourse with the accused before she was killed.

7 On the facts of this case, I consider that both views, which have been already ventilated during the no case submission, are open to the jury. One view is that relied on by the Crown, that is, that the various factors outlined by Mr Tinney in the no case submission all work together to produce an inference that sexual intercourse did occur between the accused and the deceased at the crime scene. The other view, that proffered by Mr Dane, is that those factors are all neutral and, therefore, that the jury could only draw the inference that they were satisfied beyond reasonable doubt as to sexual intercourse occurring at the crime scene between the deceased and the accused if they were satisfied beyond reasonable doubt as to the evidence relating to the lack of seminal staining on the crutch of the underpants of the deceased. In my opinion, either such view is arguable depending essentially on what view of the facts the jury takes in this case. If I were to direct the jury that the absence of seminal staining on the crutch of the underpants and the significance of that absence is, or is not, an indispensable part of the Crown proofs, I would be usurping the role of the jury as to whether other evidence relied on by the Crown does, or does not, support the inference that the accused man had sexual intercourse with the deceased at the scene. That issue is essentially a matter of fact for the jury and not for me.

8 In those circumstances I consider that it is appropriate for me to identify for the jury the two competing views, namely that of the Crown and that to be advanced on behalf of the accused. I shall instruct the jury that if they accept Mr Dane's submission, namely that the evidence relating to the lack of seminal staining on the crutch on the underpants is an indispensable part of the Crown case, then they must be satisfied as to that evidence beyond reasonable doubt. In my view, that approach accords with the approach suggested by the New South Wales Court of Criminal Appeal in R v Merritt[1] and it also accords with the views of Deane J in Chamberlain v R No. 2[2].

9 Thus, I intend to charge the jury, in summary form, as follows. Firstly, the jury must be satisfied beyond reasonable doubt that the accused man had unprotected sexual intercourse with the deceased at the crime scene at or about the time at which she was killed. Secondly, the Crown relies on an inference to prove that fact beyond reasonable doubt; therefore, to be satisfied of that fact beyond reasonable doubt, the jury must be satisfied that that is the only reasonable inference open to them in the circumstances. Thirdly, I shall direct the jury that there are competing arguments as to whether the evidence relating to the lack of seminal staining on the crutch of the deceased's underpants, and as to the significance of that absence, is indispensable to the inference relied on by the Crown. I intend to briefly summarise the competing positions, which I expect will be put to the jury in final address, and I shall instruct the jury that if they accept what I understand will be the submission or analysis put to the jury on behalf of the accused, namely that the evidence relating to the absence of seminal staining on the crutch of the underpants is indispensable to the inference that the accused and the deceased had sexual intercourse at the crime scene, then they must be satisfied beyond reasonable doubt relating to that evidence; and, in particular, if they are of the view that that is an indispensable part of the Crown case, they must be satisfied beyond reasonable doubt as to two factual matters, firstly, that, in fact, no seminal stain was deposited in the crutch of the deceased's underpants as a consequence of sexual intercourse between the accused and the deceased; and, secondly, that the only reasonable explanation for that absence is that the deceased had not put on her underpants between the time she had sexual intercourse with the accused and the time at which she was shot and killed.

[1] (1999) NSWCCA 29 at 6971.

[2] [1984] HCA 7; (1984) 153 CLR 521 at 6267.