the merits of the application
32 The critical question is whether the applicant would have arguable grounds of appeal which might lead to the conclusion that he has been denied a fair opportunity of an acquittal: that is, whether it is likely that there has been a miscarriage of justice. The source of the applicant's complaint was his wife's evidence about the newspaper article and what she said to him when she showed him the article.
33 It is necessary to set out in detail passages from the evidence, submissions of counsel and the summing up as to the impugned evidence. It will then be necessary to assess whether the evidence might have tainted the conclusion of the jury that there was no explanation or hypothesis consistent with innocence in the thumbprint of the accused being found on the liquid soap bottle on the complainant's bedside table.
34 In the absence of the jury, the prosecution indicated that it wished to ask Mrs Parker, the wife of the applicant, whether she had some concern or suspicion that the applicant was responsible for the attack which was reported in the local newspaper. Counsel for the prosecution informed the trial judge that Mrs Parker:
"… ultimately went to the police and provided them with information that suggested that it was a possibility that this person was the person responsible for the crime."
His Honour said:
"But surely she went further than that? She would have given them information about facts X, Y and Z … it doesn't matter what her concern was or what her suspicions were, or … that she made a complaint."
And later, in respect of the "concern" that the wife entertained, his Honour said:
"Well, I don't think you're entitled to get that. If the other side want to open up that aspect, they can do so and you might get it in re-examination, but I wouldn't allow it in-chief."
The trial judge went on to say, however:
"But you can still get the evidence in of what she did and possibly what she said."
35 Before Mrs Parker gave evidence in front of the jury, she was warned in their absence by the trial judge:
"… it's important that you restrict your answers to the questions as much as you possibly can because there is a risk if you go beyond what you're being asked about and give information, even though you might think it's important, which is not raised by the question you're asked, then the trial will have to start again. We'll have to send the jury home and stand the case over for another few months so that we can have another go at it. Do you understand?---Yes."
36 In the course of her evidence-in-chief, Mrs Parker recalled seeing in the newspapers in the days after 7 September 1995 reports of an event near to where she lived that were the subject of the trial proceedings. She was asked:
"Did you raise that with your husband, did you talk to him about it?---Yes, I did.
Where? Where was it that the conversation took place?---I don't remember.
What did you say to him?---I can't remember. I know I raised the situation.
Do you remember what he said?---He denied it.
Denied what?---The accusations.
Well could we go back a step. You refer to accusations. What did you say?---I don't remember what I said. I just remember asking him whether he knew anything about - - -
And do you remember the words that he used when he replied?---No, I don't."
37 The applicant at his trial gave evidence that he was unsure as to whether, on the evening of the offence, he was out jogging. It was submitted to the jury on behalf of the prosecution that the fact of the conversation would have caused him to reflect upon what he was doing at the relevant time. It was suggested that, the incident having been raised two weeks or thereabouts after the event, one would reflect back and consider carefully where one was at the relevant time, and this is to be contrasted with what the applicant said at his trial:
"I cannot recollect if I was out running that night or not."
38 The suspicion or concern of Mrs Parker about her husband's involvement in the matter was inadmissible, as the trial judge had indicated, and she should not have been asked about the content of the conversation that was prompted by the report in the newspaper. Other evidence that she gave was highly relevant, in particular that, on the evening of 7 September 1995 at about nine o'clock, her husband was out running, and that later that night she saw the applicant wearing the clothes that he usually ran in, and she identified a tracksuit top as "the top that he… wore that night". She described the clothes as "royal blue tracksuit pants and a royal blue sloppy joe with a pocket in the front and a cord with yellow piping around the cord."
39 In his evidence-in-chief at the trial, the applicant gave the following evidence concerning the report in the newspaper and the conversation about it between his wife and himself:
"Now, subsequent to 7 September, did you become aware of the media publicity generated in respect of the sexual assault upon [the complainant]?---Only a week or so later, when it came out in the Chronicle, I actually saw it in the Canberra Chronicle.
Do you recall a conversation with your wife concerning the matter?---Yes.
Do you recall when that conversation was in respect of 7 September?---It was some weeks after the 7 September, I think.
Can you recall the words that were spoken now? If you can't can you indicate?---I can't remember the exact words. I can't remember if she actually accused me of the incident. All I can seem to - all I remember is that I said - I basically said to her, if after X amount of years that we've been married, you don't know me by now, and you think I could do something like that, well, we may as well go to the police now."
40 On the appeal, the respondent contended that this account by the applicant of his response was "volunteered" by the applicant, and it was submitted that, in giving this response, the applicant sought to draw support from the fact that his wife did not in fact approach the police shortly following that conversation. The applicant was cross-examined at his trial, particularly concerning what was claimed to be the improbability of his asserted inability to recall whether or not he was out running on the evening of 7 September, given that his wife had raised the incident that occurred on that night shortly thereafter, as a consequence of seeing the newspaper report of the incident. The applicant was asked in cross-examination:
"She just accused you of being involved?---Once again, I - like I said on Friday, I don't remember any accusations being made. I don't know how it actually came out and what she actually said."
41 The subject of the conversation between the applicant and his wife was referred to by the Crown at the conclusion of the applicant's examination to contend that there was some probative value in the fact that the wife suspected the applicant of being the perpetrator of the offence. While it is lengthy, the end of the cross-examination put the Crown case against the applicant very squarely to him:
"Now there's some very unfortunate coincidences, so far as this case is concerned, aren't there, Mr Parker? Your wife says that you were out running that night?---Yes, that's correct.
You owned or were wearing clothes that were similar in description to that given by [the complainant]. Is that correct?---Well, I can't remember the actual description that [the complainant] gave, because I didn't think she had a - I mean, the amount of light that was in the room, and what - accordingly to [the complainant] was saying, most things would've been dark.
Just to remind you of what she said to the police, just after the event. You will recall Constable Saunders reading this out. 'As I got up, I could see - just see the male person in the corner of my eye. I could see he was about 5 foot 6 to 5 foot 8. He was of slight build and was wearing dark clothing. I could see that he had something on his head - something dark on his head which covered his hair and ears and gave the impression of a white border around his face. I believe that this could've either been a woollen beanie or an open faced balaclava. I couldn't see his face clearly but I could tell he had white skin. From what he had said to me, I could tell that he was softly spoken in an Australian accent, he did not sound like an old man or a teenager. I would estimate that he was between 25 and 30 years, I could not smell cigarettes, alcohol, aftershave or any other odour on him'' Now, you were in possession, at that time, of a woollen beanie?---Yes, that's true.
And an open faced balaclava?---Yes, that's correct.
That jacket - hold it up. Just lift the hood up for the jury, please. There's a hood on it, which would cover your head if it was being worn. Yes?---Yes. Partially. It's a loose fitting hood.
…
How old were you?---August '95?
Yes?---I would've been about 38.
You are, you would accept, a quietly spoken man?---I'm relatively quietly spoken, sir. No different to anybody else, I would've thought.
You didn't smoke?---No, that's correct.
You didn't drink before you went?---Yes.
Do you see a similarity there, Mr Parker?---No, I don't see the similarities there, I'm sorry.
You lived close by?---Yes, I lived close by.
It was a 3 minute walk to that place?---Yes, possibly, yes. I've never, ever timed it.
And your fingerprint was found on the bottle that was used as the source of lubricant in the sexual assault?---That's correct.
That's a terrible coincidence, isn't it?---It is. That's why I'm here denying it.
And to top it off, your wife accused you of doing it?---That's correct."
There was evidence in the trial that the accused in shoes was 169 centimetres tall.
42 In the course of the submissions by the Crown to the jury, there was a quite improper invitation to speculate about the basis for the wife's suspicions. The Crown Prosecutor said:
"… the conversation that's been referred to was she accused this person, Mr Parker, of involvement in this offence. You might think it happened for a particular reason, some of which we don't know about, that's fairly clear.
There is much in a marriage, there are many secrets, there are many things that are understood between two people but not stated. Clearly, Mrs Parker had a reason for suspecting her husband's involvement in this matter, apart from the circumstances surrounding the running on that particular night to which I'll come to later, but clearly she had reasons for suspicion. Who knows whether or not that souveniring aspect of the matter was something that she was aware of, we just do not know."
The reference to "souveniring" is a reference to the taking from the complainant's clothesline of a body suit that was put over the complainant's head during the commission of the offence.
43 Defence counsel, in the course of his address, submitted to the jury:
"… it would be quite wrong of you to infer anything from the fact that his wife challenged, enquired, or accused him in the weeks following this offence. Or indeed that she apparently much later telephoned the police."
And later:
"… I remind you ladies and gentlemen, we don't even know what Mrs Parker might think, or have at one time thought in this matter. And the reason you don't know that is because it's not relevant."
44 In the course of his submissions, defence counsel said, "… this case goes nowhere without the fingerprint." At the conclusion of his submissions, defence counsel said:
"In conclusion, I put the submission to you that at the end of your assessment this case is about a fingerprint. There are other ways that fingerprint may well have ended up on that bottle. You're not assisted by the fact that we're many years down the track. And in my submission it's not an easy thing to do, but when you have regard to some of the matters that I have raised with you the idea of such a preposterously fanciful scenario doesn't really stick."
45 Concerning the evidence of the suspicions of the applicant's wife, the trial judge told the jury:
"Another part of her evidence though, was the conversation that she claims to have with the accused within a week or so of the night in question when she read about it in the Canberra Chronicle where her husband happened to work, or he worked at the Canberra Times but I think that they printed the Canberra Chronicle.
And she said - her evidence that was rather incomplete you might think, but on the other hand there appeared to be no dispute about it when the accused himself gave evidence that she mentioned what she'd read in the newspaper about the assault that had taken place and whatever she said to him, it was his response really that the prosecution relies upon. And that was something to this effect, 'We've been together this long, it would take more than this to make you think what you do and if so - or it should, or if it doesn't we ought to go up to the police straight away' and that seems to be an end of it as far as the evidence is concerned.
The prosecution says, well, the strange thing about that is that he says now that he didn't even think at that time to cast his mind back to the relatively short period - he said it was 2 or 3 weeks before I think - but at any rate the relevantly short period before when the events were said to have occurred on the Thursday night. And if he'd done so, the prosecution argument, he would have been able to say, 'That would have been one of the nights when I was home' because he takes the night shift once every 3 weeks as I understand it, a day shift, a night shift, a day relief shift. At any rate he would have been able to say, 'Well although that's one of the nights I was home, I don't go over there, I mightn't have been home or I wasn't home, but I don't jog over the other side of Erindale Drive over Theodore, I'm an Oxley jogger'. And that's what he told you, he jogs around the areas of Oxley and not across the way, certainly not behind the house that [the complainant] occupied at the time."
46 The significance of the thumbprint and the possible explanations as to how it might, consistent with the applicant's innocence, have been found on the liquid soap bottle loomed large in the directions to the jury. The matter was left to the jury in these terms:
"… how is it then, ladies and gentlemen, that in the end it's the thumb print of the accused that's found on the bottle? Both parties really put to you that that's ultimately the question that you have to resolve one way or another so that you can ultimately come to that final conclusion when you answer the question, is there an explanation open, a reasonable or rational explanation open that is consistent with innocence? And if the prosecution hasn't shown you that there's no such innocent explanation then the prosecution is not entitled to a verdict of guilty."
47 The jury returned a verdict of guilty, and it must be taken that the jury rejected that there was any reasonable or rational explanation consistent with innocence for the applicant's thumbprint being found on the liquid soap bottle.
48 The evidence of the suspicions of the applicant's wife was before the jury and was inadmissible opinion evidence and not relevant to any question that the jury had to decide. However, the fact that that evidence was before the jury did not, in our view, deprive him of a fair trial. It is significant that, after Mrs Parker said that the applicant had "denied her accusations", the matter was not raised by defence counsel then or later, nor was there any application for a direction to the jury concerning that evidence and what value it might or might not have had, nor was there any request for redirection or discharge of the jury on account of the reception of that evidence. There was also no complaint made by the defence counsel about the improper invitation by the prosecutor to the jury to speculate as to the basis of the wife's suspicions, and no argument made to the trial judge for a direction to the jury or for the jury's discharge on that account. The trial was really fought on whether the prosecution had established beyond reasonable doubt that there was no innocent explanation for the presence of the applicant's thumbprint on the liquid soap bottle found on the bedside drawer in the bedroom of the complainant.
49 In our opinion, the impugned opinion evidence was inadmissible but its reception into evidence did not have the consequence that the applicant was denied a fair trial. Whatever be the suspicions of the applicant entertained by his wife, the knowledge by the jury of those suspicions can have had no bearing on its finding, beyond reasonable doubt, that there was no reasonable or rational explanation consistent with innocence for the presence of the applicant's thumbprint on the liquid soap bottle. In the words of the High Court in Jeffers (supra) the applicant has been "unable to demonstrate any prospect of success in the appeal which he seeks to prosecute". For that reason, he is not entitled to an extension of time within which to appeal. We are satisfied that no injustice has been caused to the applicant and that no miscarriage of justice has occurred.
50 For these reasons, the application for an extension of time within which to appeal is dismissed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, O'Loughlin and Dowsett.