SUPREME COURT OF QUEENSLAND

[1]  MUIR JA: I agree with the reasons of Fraser JA and with the order he proposes.

[2]  FRASER JA: On 14 July 2007, after a five day trial before a jury in the District Court the appellant was convicted of one count of deprivation of liberty and one count of burglary (being in a dwelling with intent to commit an indictable offence).  He was acquitted of the circumstance of aggravation charged with the burglary count that he was armed with an offensive weapon and the jury was discharged without returning a verdict on one count of rape. 

[3] The grounds of the appellant's appeal are (1) that the guilty verdicts of the jury were unsafe and unsatisfactory and (2) that the trial judge erred in failing to discharge the jury without the jury delivering verdicts.  I will discuss these grounds after I have first summarised the evidence at trial.

Summary of the evidence

[4] The complainant gave evidence that at the time of the relevant events she was staying with her son in a unit at Labrador.  After she returned to her unit in the early afternoon of 26 August 1998 she entered the unit by the front door, which she had left closed but not locked.  She was immediately grabbed from behind by a man who put a gloved hand around her mouth and held a knife to her throat.  The offender forced her onto a bed and tied her hands above her head with electrical tape.  He used a sock as a gag, which was also tied around her head.  The offender asked her if she had any condoms and she shook her head.  She saw the offender wearing a pair of her pink panties on his head, which obscured his face, whilst he was rummaging through some drawers.  She could see one eye but she was unable to say what colour it was and she was unable to describe the offender's features.

[5] The complainant testified that the offender removed clothing she was wearing and digitally penetrated her vagina.  He then affected penile penetration briefly before swearing.  The offender turned the complainant onto her back and again effected penile penetration briefly.  After that he threw a covered doona over the complainant.  The offender subsequently left the bedroom taking the covered doona with him.  The complainant was able to make her escape by loosening the tape with which she was tied and jumping out of a window.  She immediately went to a neighbour's unit and complained that she had been raped.  A police officer who quickly attended the scene gave evidence that the complainant was highly upset and crying and quite hysterical.

[6] A man with whom the complainant and her son shared the unit had died by the time of the trial.  His statement to police and the short cross-examination of him in the committal hearing were tendered.  His evidence was that he returned from work on 26 August 1998 at about 3.00 pm in response to information that police wished to speak to him at his home.  He saw that the doona was missing from his bed and that the room had been disturbed in various ways.  He noticed that a kitchen knife was missing from a table where he had left it outside his unit. 

[7] A police officer gave evidence that he found a knife on the ground in the area of the unit, but the complainant maintained throughout that it was not the knife used in the attack on her.  The police also found a glove outside the unit, a doona with the cover missing inside the front door, and some tape and a pair of pink panties in the lounge room. 

[8] A police officer gave evidence that he took possession of material including a glove, tape, a doona, a knife, the pink panties, and the sock.  He was uncertain whether there was any search for fingerprints. 

[9] In cross-examination of the complainant she agreed that she had told police that the offender seemed to be about 20 – 25 years of age, that her arms had been pulled behind her back and bound, and that she saw the offender with her pink panties on his head after she had been penetrated.  She said that in 1998 she wore size 10 – 12 panties.  (The panties taken by police from the unit were found to be size 14.)

[10]  Seven years after these events, DNA found on the pink panties (which had been preserved and the analysis recorded on a database) was matched with the appellant's DNA, which had been analysed for unrelated reasons.  As a result, on 6 October 2005 the appellant was interviewed by police.  He voluntarily participated in the interview.  He maintained that at the time of the alleged offences he was living in Brisbane and he was in a relationship with a named woman.  He denied any knowledge of the alleged offences.  He denied having been in Labrador at any relevant time.  He also denied having a twin. 

[11]  Expert evidence of the DNA analyses was given at the trial by Mr Clausen, who had been employed by Queensland Health Scientific Services since 1997.  Mr Clausen gave evidence that screening tests for acid phosphatase and amylase indicated the possible presence of seminal fluid and saliva respectively.  Testing was then conducted on four different sites on the pink panties, one on the front and three at the back.  (His evidence was that the location of the sites was not significant: DNA might be transferred from one place to another by contact between different parts of the panties.)  Samples were separated into spermatozoa and epithelial fractions.  (Epithelial DNA was derived from saliva or another bodily fluid.)

[12]  Although a single spermatozoa was observed at the rear site, no DNA profile was obtained from that site: there may have been insufficient material.  The DNA analysis showed at least two contributors to the spermatozoa found at the front sites.  The major contributor showed a full DNA profile (that is, analysis at nine chromosome locations), which did not match the appellant.  There was insufficient information to describe the source of the minor contribution to the spermatozoa fraction: it could, for example, have been contributed by the same male who had made the major contribution or by a different male. 

[13]  A full DNA profile of the epithelial fraction taken from the front site revealed that it was contributed by a female, other than the complainant, whose identity was unknown. 

[14]  In relation to the epithelial DNA found on the three sites on the rear of the panties, full DNA profiles found at two of those sites matched the appellant's DNA profile.  The epithelial DNA found at the third of those sites revealed a partial male profile (four chromosome locations) which was consistent with the appellant's DNA profile.  Mr Clausen gave evidence that the relevant frequency of the appellant's full DNA profile (obtained from a reference sample of his DNA) occurring in the population was about one in 89,000 billion persons: statistical analysis showed that one could be 95 per cent confident that the true value occurred between one in 58,000 billion and one in 130,000 billion persons in the population, based on Queensland caucasian data.  According to Mr Clausen, that was a conservative database to choose.  In relation to the third, partial, epithelial DNA sample found on the rear of the panties, the relative frequency of that partial DNA profile occurring in the population was about one in 240,000 persons: statistical analysis showed that one could be 95 per cent confident that the true value occurred between one in 180,000 and one in 310,000 persons in the population, again based on Queensland caucasian data. 

Ground 1: the verdicts of the jury were unsafe and unsatisfactory

[15]  The first ground of appeal raises the question whether, notwithstanding that as a matter of law there is evidence to sustain the verdicts, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty:  M v The Queen (1994) 181 CLR 487 at 493; MFA v The Queen (2002) 213 CLR 606 at 614-615, 623-624.

[16]  The complainant's evidence was plainly a sufficient basis for the jury to be satisfied beyond reasonable doubt that an assailant she could not identify had committed the two offences of which the appellant was convicted.  The evidence that epithelial DNA was found in the complainant’s panties (where epithelial DNA from the assailant might be anticipated on the evidence of the complainant) which matched the appellant's DNA, with a negligible probability of that DNA matching any other person's DNA, was sufficient for the jury to conclude beyond reasonable doubt that the appellant was the assailant. 

[17]  The appellant did not submit that it was not open to the jury to find beyond reasonable doubt that the DNA detected on the complainant’s panties was the appellant's DNA.  Rather, the appellant's arguments revolved around suggested inadequacies in the investigation or defects in the trial. 

[18]  The appellant contended that a miscarriage of justice was demonstrated by the loss of evidence.  He pointed out that the latex glove, electrical tape, sock (and, he contended, black boots) taken by police from the crime scene were not produced at trial and were lost or destroyed.  As to that, there is no evidence before this Court that these items were not retained by police or that they were not available for inspection by the defence.

[19]  The appellant next relied upon the authorities' failure to conduct forensic analysis on those items and on other items, notably the knife, doona, and clothing worn by the complainant during the events of which she gave evidence.  The appellant quoted a passage from the committal transcript for the proposition that those items had been lost or destroyed.  The quoted passage suggests only that the items had been returned by Queensland Health to police.  If defence counsel did not seek to have analysis of those items conducted that was an understandable forensic decision, given that the identification of the appellant's DNA on the complainant's panties justified the view that further analysis might merely further implicate the appellant: cf TKWJ v The Queen (2002) 212 CLR 124 at [33], [107]-[108].  As against that, defence counsel might reasonably have considered that the potential for identification of a different person's DNA on analysis of these items would not undermine the strength of the evidence that the appellant's DNA was found on the pink panties.  It is worth noting in this respect that the complainant's evidence suggested that the assailant may have been endeavouring to avoid leaving traces from which a DNA analysis might be conducted: he wore gloves, or at least a glove, he appeared to search for a condom, he may have avoided ejaculating during penetration, and he removed the doona cover which may have contained ejaculate.

[20]  The appellant trenchantly criticised the competence of Queensland Health Scientific Services in conducting the relevant forensic investigation.  In this respect he sought leave to rely upon evidence which was not adduced at trial by a forensic scientist and former team leader of the Forensic Biology Section at the John Tonge Centre, Adjunct/Associate Professor Freeney.  The appellant made a statutory declaration which attached, amongst other documents, a statement dated 26 March 2007 and letter dated 20 March 2007 apparently prepared by Mr Freeney.  It appears then that this material was available for use at the trial, which commenced on 10 July 2007.  The appellant's explanation for not using this material at the trial is that he was advised by lawyers who originally represented him not to call Mr Freeney as an expert witness; lawyers who subsequently represented him in a trial which commenced on 2 April 2007, but miscarried, advised that Mr Freeney could not be called due to lack of funding; and at the trial those same lawyers advised the appellant that Mr Freeney would not be required as defence counsel could establish most of what Mr Freeney said by obtaining concessions from the expert witness called for the Crown.  The appellant contended that he "agreed, in part" with this advice.

[21]  The appellant's legal advice not to call Mr Freeney was understandable, if only because Mr Freeney stated, both in the 20 March 2007 letter and in the 26 March 2007 statement, that "it is highly likely that the DNA profiles in this case were correct." 

[22]  Furthermore, the appellant's legal advice, that defence counsel could obtain concessions equivalent to most of the criticisms in Mr Freeney's report, was borne out in the course of the trial.  Thus, defence counsel obtained concessions from Mr Clausen which effectively supported the following points made by Mr Freeney:

(a) Analysis of the sock might reveal whether or not the sock was really used as a gag (by indicating whether or not saliva had been transferred to it).

(b) Had the pink panties been worn on the assailant's head, hair might have been shed on to them.  (Mr Freeney's point was that there appeared to be inadequate note-taking.  For example there were no notes concerning hairs, forceful damage or other trace evidence in general).

(c) The complainant's medical specimens (genital swabs) were negative for spermatozoa. 

(d) The transfer of wet saliva, or other biological fluid, from one surface to another by a variety of means was possible. 

(e) It was not possible to say definitively that saliva was present on the pink panties.  (The epithelial DNA might have been derived from a different bodily fluid.)

(f) A light semen stain was present on the pink panties but the donor of that semen stain had not been ascertained.

(g) DNA from two persons other than the appellant was detected on the pink panties. 

[23]  Those and other matters were dealt with in cross-examination of Mr Clausen, who readily made concessions.  For whatever significance they might have had, they were for the jury to consider.  Defence counsel's decision not to call Mr Freeney, thereby preserving the tactical advantage of addressing last, was clearly an understandable forensic decision in this trial. 

[24]  Mr Freeney's letter and statement concluded that he considered "the scientific evidence in this case to be questionable and unsafe".  In its context this appears to be a reference, not to the evidence which identified the DNA found on the panties with the appellant, but rather to suggested failures in note-taking and in conducting additional investigations.  I also accept the submission for the respondent that the expression of the opinion in that form was inadmissible.  Further, this evidence was available to the appellant but not called at his trial: it is not fresh evidence.  For that reason the evidence is not admissible because, even if it were accepted despite its defective form, a conclusion of guilt was still reasonably open to the jury so that a miscarriage of justice has not been shown: R v Katsidis; ex parte A-G (Qld) [2005] QCA 229, per Jerrard JA, with whose reasons White J agreed.  Further, if the Court has a residual discretion to receive new evidence which is not fresh evidence if a refusal to do so would lead to a miscarriage of justice (see Katsidis per McMurdo P at [3]), the evidence should not be received because it, when combined with the evidence at trial, does not indicate that there has been any miscarriage of justice. 

[25]  The appellant contended that the defence was denied "viable and logical avenues" in cross-examination as a result of the failure of the prosecution to disclose the criminal histories of the complainant (who had a conviction in 2007 for possession of a dangerous drug and possession of utensils for the administration of a dangerous drug) and the man with whom she resided (who had a conviction in 1996 for possession of firearms).  The convictions do not seem to be significant for the issues at trial and the material before this Court does not suggest that any request was made to the prosecution to disclose the criminal histories of any of the witnesses: cf Criminal Code, s 590AJ(2). 

[26]  The appellant referred also to the complainant's evidence that she had, at the relevant time, recently escaped from an environment of abuse and domestic violence: her former boyfriend had a criminal history for violence and firearms offences.  As to this, there was no evidence to suggest that her former boyfriend had any role in the offences and there is no reason to think that the complainant would not have identified him had he participated in the offences. 

[27]  The appellant also complained that the prosecutor asked leading questions of the complainant.  The appellant's submissions suggested that his "active and vocal position in the defense [sic] of this case" and his "many and varied instructions" sent to defence counsel indicated that he would not have accepted acquiescence by defence counsel in leading questions.  Whether or not objection should be taken to particular leading questions is a matter pre-eminently for counsel to decide.  The appellant was not prejudiced by defence counsel's acquiescence in some leading questions.  Reference to the transcript indicates that leading questions were asked with the apparent agreement of defence counsel, but the critical evidence was given in response to questions which were not leading. 

[28]  The appellant referred also to some 11 occasions upon which the trial judge asked questions of the complainant.  It is not clear what complaint the appellant seeks to make in that respect, but the trial judge did not inappropriately descend into the arena or ask questions otherwise than to ensure that the complainant's evidence was appropriately understood by the jury.

[29]  The appellant contended that the great delay between the time of the offence in 1998 and the trial in 2009 deprived him of the ability to obtain evidence, particularly including alibi evidence.  The trial judge gave the following appropriate directions to the jury in this respect:

"Now, I need to give you a direction which relates to the delay between when the complainant says these things happened to her and the investigation of the accused.  Now, of course, that's not a delay which could be said to be laid at the feet of either the complainant or the authorities or the accused for that matter but the fact of the delay has certain consequences which you need to be aware of and which you need to keep in mind when you consider the case.

Now, it might be said that, and you'd keep in mind, that in the case of the accused, he, being accused of these things some seven years after they happened, may well have lost the opportunity of gathering together evidence if he were otherwise earlier able to show that he was not on the Gold Coast at the time, being overseas or working in Cairns on the day or things like that.

Now, had the complaints been made known to the accused soon after the alleged event, generally speaking in those circumstances, logically it would have been possible then to explore the pertinent circumstances in detail and perhaps to gather and look to call at a trial, evidence, which might throw doubt on the complainant's account.  It might throw doubt on his being the perpetrator and these might be opportunities lost by that delay.

So, ladies and gentlemen, you'd need to keep in mind the fairness of the trial, then, in those circumstances.  You might think well, has the proper way to prove or challenge the accusation necessarily been impaired by the long delay.  So, you would need to keep that in mind, ladies and gentlemen, when deciding your ultimate verdict."

[30]  The point was again emphasised by the trial judge in the course of summarising defence counsel's submissions:

"Now moving to the defence case.  It is that, you've heard the denials the accused made; he's not obliged to give evidence or call evidence; he will be limited as to the evidence that he can call in terms of trying to work out where he was on a particular time seven years before once the police spoke with him; what his own appearance was then, perhaps in terms of his hair and facial hair and all these sorts of things and he's been denied the opportunity by reason of the lapse in time in locating any person who might be able to say he was somewhere else or locating any documents which might establish the same thing or things like that.

So that there's a disadvantage that you need to take into account which may cause you to have a reasonable doubt about guilt either alone or together with other factors such as if you had any reservation about whether the complainant was raped, whether she was raped in the way she described which includes the wearing by [sic] the pants by the attacker and so on.  None of that's conceded so you'd need to examine that carefully.  In the end result the defence submits to you that even if you were satisfied of her account, there are a number of possibilities which you couldn't discount or transference of DNA material.  So far as the partial DNA is concerned, there may be other people outside of those figures who have the same DNA or had the same DNA around Labrador at the relevant time."

[31]  It was open to this properly directed jury to find the appellant guilty of the two offences despite the concerning delay.

[32]  The appellant also contended that he wished to give and call evidence.  He has, however, provided no proof that any evidence he might have called at trial would have been of assistance to him.  In circumstances in which he had made a clear, unequivocal and detailed denial in the police interview which was tendered in the Crown case, there are no grounds for believing that he could have given useful evidence himself.  The appellant referred to evidence which he might have called from two other witnesses, Ms Sheryl Robertson and Mr Peter Ciaglia.  In that respect, the complainant gave evidence that after she escaped out of the window of her unit and screamed, she spoke to Ms Robertson.  In cross-examination the complainant agreed with the suggestion by defence counsel that she told Ms Robertson, "he's found out where I'm living.  He was already in the house".  Given that the complainant agreed with that suggestion put to her by defence counsel, there is no ground for thinking that Ms Robertson could have given any other evidence of use to the defence.  (The point of that cross-examination seems to have been, perhaps, to infer that the complainant had identified her former boyfriend as the assailant.  Under further cross-examination, the complainant denied that suggestion.)  Mr Ciaglia's evidence was not shown to have any additional relevance.

[33]  The appellant complained that the prosecution called Mr Clausen as an expert, rather than Mr Ryan.  The latter had been notified as the witness to be called on a witness list provided at the committal hearing.  There is nothing to suggest that this had any bearing upon defence counsel's preparation for the trial. 

[34]  The appellant referred to the absence of fingerprinting at the scene of the crime or on the knife found at the scene of the crime, the failure of police to remove "suspected clear plastic clipseal bags" shown in police photographs, and the failure of police to conduct DNA tests upon the man with whom the complainant resided, the complainant's son, and the complainant's former boyfriend.  There is no reason to think that any of these failures had any bearing upon the fairness of the trial.  The complainant's statement suggested that fingerprints would not have been left by the assailant.  The complainant did not identify the knife found at the scene as being the knife which was used to threaten her.  The suggested clipseal bags were of no apparent relevance to the subject offences.  DNA tests on the identified persons also had no obvious bearing upon the guilt or innocence of the appellant.

[35]  Although the appellant did not base any argument upon the jury's failure to agree upon a verdict on the count of rape, I have considered whether it gives any cause for concern about the guilty verdicts on the two related counts of which the appellant was convicted.  Had the jury acquitted the appellant of the rape charge there would have been cause for concern whether the inconsistent verdicts on the other counts were an affront to logic and common sense such as to throw doubt upon the reasonableness of the guilty verdicts: see MacKenzie v The Queen (1996) 190 CLR 348 at 368; R v CX [2006] QCA 409.  However, the jury's inability to reach any verdict on the rape count does not constitute a verdict which is inconsistent with the guilty verdicts on the remaining two counts.  The distinction between the absence of a verdict and a verdict of acquittal is in this respect significant: see Osland v The Queen (1998) 197 CLR 316 per Callinan J at 406; [1998] HCA 75 at [232].  As Keane JA pointed out in R v DAL [2005] QCA 281 at [23], a failure to agree about one count does not necessarily imply that the jury as a whole entertained a reasonable doubt about the reliability of the evidence which is relevant to the counts upon which it convicted a defendant in the same way that verdicts of acquittal might. 

[36]  Furthermore, the jury's failure to convict on the rape count might have been referrable to the complainant's evidence which suggested that she must have been in a state of shock at the relevant time as a result of being confronted by an assailant with a knife, her evidence that the episodes of penile penetration were very brief, and the emphasis given in cross-examination of Mr Clausen to the absence of forensic evidence which corroborated the complaint of rape.  Whilst that evidence does not entirely satisfactorily explain the contrast between the convictions upon the counts of burglary and detaining the complainant against her will on the one hand, and the jury's failure to agree upon a verdict on the rape count on the other hand, it does suggest that the jury's failure to agree on the rape count might be explicable by a view – perhaps an eccentric view – of one juror not being satisfied beyond reasonable doubt of all of the elements of that offence: cf R v DAL [2005] QCA 281 per Keane J at [23], referred to with approval by Jerrard JA (with whom Atkinson and Douglas JJ agreed) in R v CX [2006] QCA 409 at [33] (8); see also R v Kahu [2006] QCA 33 per Keane JA (with whom McPherson JA and Muir JA agreed) at [27]. 

[37]  I am persuaded that the jury's failure to agree upon a verdict on the rape charge does not throw into question the integrity of the jury's guilty verdicts on the other charges. 

Ground 2: the trial judge erred in failing to discharge the jury without the jury delivering verdicts

[38]  Under the second ground of appeal the appellant argued that the trial judge should have discharged the jury as a result of the behaviour and action during the trial of juror No 10.

[39]  One of the appellant's complaints, that juror No 10 sent a text message to the "Prosecution assistant", is without substance.  The record shows that after the jury had retired to consider its verdicts counsel for one of the parties informed the judge of a concern that a juror might have contacted, or sought to contact, someone connected with the trial.  The trial judge said that further investigations which he had authorised the Crown prosecutor to conduct, with the consent of defence counsel, revealed that the mobile telephone number of the telephone from which the communication emanated was that of a subscriber who was not a juror.  The trial judge considered that no further investigation was necessary and neither counsel suggested the contrary. 

[40]  The appellant also asserted that the trial miscarried because juror No 10 claimed to have seen the appellant shackled on a plane and that he had discussed this with the jury.  That is an incomplete description of the relevant events.  Shortly before the jury delivered its verdicts, the jury sent a note to the trial judge saying, "Your Honour, if one jury member indicated that he saw the accused on a plane and he and the air hostesses had commented that he seemed like, "A nice guy, I wonder what he did", would that give other jury members doubt about that particular jury member's judgment, even though the jury member is now saying he did not see the accused."

[41]  The trial judge brought the note to the attention of counsel.  After receiving submissions as to the appropriate course the trial judge reconvened the Court with the jury present.  Juror No 10 volunteered that, although he had first thought that he had seen the appellant on a plane, the evidence ruled that out.  The juror said that he had mentioned the possibility that he had seen the appellant to the other jurors on the first day of the trial, but that by the last day of the trial the evidence demonstrated that he must have been mistaken. 

[42]  The trial judge reiterated the exhortation he had given the jury at the beginning of the trial about the necessity of jurors' impartiality as between the Crown and the accused.  The judge also repeated the conventional directions as to the obligation of jurors to decide the case according to the evidence.  Neither counsel sought to be heard further about the directions, and the verdicts were then taken from the jury.

[43]  The disclosure by juror No 10 was quite innocuous and the jury's note to the judge reflected a very conscientious approach to its task.  In light of the judge's directions there was no ground for a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that juror No 10 or the jury as a whole had not discharged or would not discharge their task impartially.  That being so, the trial judge was right to take the verdicts: Webb v The Queen (1994) 181 CLR 41. 

[44]  The appellant also referred to the trial judge's refusal to comply with a request by the jury to provide it with the original statement given by the complainant in 1998.  That decision was plainly right.  The statement was not part of the evidence.

[45]  Finally, the appellant complained that the police had informed the complainant of his criminal history which, he argued, biased the complainant against him.  There is no substance in this point: the complainant did not purport to identify the appellant and she complained of the offences before the appellant was identified by DNA matching many years later.

Conclusion and proposed order

[46]  The appellant presented his submissions, particularly his oral submissions, with skill and eloquence.  He urged upon the Court the view that he had been the victim of an unfair trial and an inadequate investigation by police and the forensic examiners.  I have not attempted to articulate every point which he made, but I have considered them all and discussed those which seemed most significant.  In my opinion the appellant has failed to show that there was any material deficiency in the conduct of his defence at the trial or that he has been the victim of a miscarriage of justice. 

[47]  I would dismiss the appeal. 

[48]  JONES J: I agree with the reasons of Fraser JA and with the order he proposes.