Third basis for the application: Non disclosure of the finger- printing of the toilets.
38The third basis of Mohammed Skaf's application is that there was a failure on the part of the Crown to disclose to the defence that fingerprint evidence was taken from the toilets at the Marion street carpark.
39The Crown case statement records that the following evidence was led at the trial concerning the state of the toilet block:
"There were three toilets in the Marion Street car park: a male toilet on the left, a female toilet in the middle and a disabled toilet on the right. The middle toilet was clean and tidy, but the door was broken off the top hinge. The complainant told Constable Norris that she had been sexually assaulted in there. The toilet was cleaned early in the morning on 31 August 2000 by Wayne Jaubert, from Bankstown Council, and his co-worker. Jaubert gave evidence of having seen damage in the men's toilet, including a broken lock on the door, a broken paper holder and a broken seat. The door to the ladies toilet was broken, and the latch for the bolt on the locking mechanism was missing, suggesting that the door had been forced off. The toilet seat was also broken off." (Reference omitted)
40The Crown case statement also states that the first time Miss C approached the police was at 1.30pm on 31 August 2000. Thus the earliest time the police could have inspected the toilets was after they had been cleaned.
41At some point during the 2002 trial and after the Crown had closed its case Sergeant Michael Porta gave evidence on a voir dire. On this application, it was not made clear what the voir dire related to but the transcript suggests that it concerned the contents of a statement of a co offender, "H", that was served on the defence. In any event on the voir dire Detective Porta gave the following evidence about his attempts to identify the woman who spoke to Miss C when she emerged from the toilets:
"In relation to - I'm not sure if it was Mrs Langley or Ms Francis [Counsel for the defence] asked (sic) about the black junkie - those enquiries, the only person that came to light there was a woman called Genevieve Strickland, whose palm print was found in the toilets and she was in custody as at 30 August, so that enquiry led to nothing and she was a person who did in fact have some darkened skin." (emphasis added).
42The submissions of Mohammed Skaf point to this as evidence that the toilet block was fingerprinted. They also rely on an entry in Senior Constable Brazel's duty book dated 19 September 2000 which is said to read: "then to fingerprints major crime Ferguson Centre Parramatta re [Miss C's surname] elimination prints".
43The submissions on behalf of Mohammed Skaf contend that the finding of a print in the toilets suggests that the toilets had not been washed or cleaned prior to the police fingerprinting them and that that fact should have been disclosed to the defence. The relevance of this is said to relate to the accuracy of Miss C's description of how she was sexually assaulted in the toilet block in the Marion Street carpark. In her evidence she described being sexually assaulted from behind while pinned against a wall by the male in the yellow jumper. In her first statement she described having her hands placed on the wall during the assault that occurred immediately after the assault by the male in the yellow jumper. It was submitted that Mohammed Skaf was "severely prejudiced" by the failure to disclose this material (and denied the benefit of) any "implications consistent with innocence that might have been disclosed by the finger print evidence".
44The Attorney General's submissions note that the entry in Senior Constable Brazel's duty book does not indicate what locations, vehicles or objects the elimination prints were obtained from. Otherwise they point to the cleaner's evidence and note that at the trial Mohammed Skaf's counsel did not ask any question about the fingerprinting of the toilets. The Crown submits that, as it was common ground that Mohammed Skaf was in the toilet block, it is "not surprising" that his Counsel did not take the matter further at the 2002 trial. I understand this to mean that his Counsel accepted that the result of any such fingerprinting could not have assisted his client's case.
45It is regrettable that the Crown has not supplied a full explanation of what fingerprinting or palm printing was undertaken, when it was undertaken and why it was that this material was not disclosed prior to the 2002 trial. In the absence of such an explanation I must approach the matter on the basis that fingerprinting of the toilets was undertaken and was not but should have been disclosed prior to the 2002 trial (see the discussion in the Bilal Skaf Application at [85] to [86]). Mohammed Skaf's submissions in reply go further and assert that what occurred was a "deliberate withholding" of the fingerprints. This suggestion is difficult to reconcile with the fact that Sergeant Porta freely disclosed the obtaining of a palm print in the course of giving a long explanation in his evidence in chief. If there was a deliberate decision to suppress the fingerprinting or palm printing of the toilets then he would not have disclosed the information in that manner.
46In any event the failure to disclose the fingerprinting does not cause me to have any sense of unease or disquiet concerning Mohammed Skaf's convictions on the counts relating to the sexual assault of Miss C in the toilet block. It follows from the Crown case statement, which was in turn taken from the evidence led at the trial, that the fingerprinting could have only been undertaken after the toilets were cleaned. It is quite conceivable that the cleaning process could have removed some, but not all, of the prints. Hence a palm print of "Genevieve Strickland" was obtained. If Miss C's prints were not found in the location that she indicated by her evidence that would be consistent with them being washed away. If her prints were found in other parts of the toilet then that would not be inconsistent with her version either. It was common ground at the 2002 trial that Mohammed Skaf was in the toilet block so the presence or absence of his prints would be neutral. Thus the presence or absence of Miss C's fingerprints or Mohammed Skaf's fingerprints was irrelevant to the issues at the 2002 trial.
47The conclusion that the outcome of any fingerprint analysis of the toilet block would not have been of any assistance to Mohammed Skaf's defence is reinforced by the complete absence of any protest or even query at the 2002 trial when Sergeant Porta volunteered that a palm print had been obtained from the toilet block.
48I have referred above to the evidence of Miss C's friend Leah confirming that Miss C texted her and that she attempted to contact Miss C only to be told "[l]isten bitch, your sister will be home in ten to twenty minutes" with the phone later being switched off (see above at [19]). This evidence is completely inconsistent with any suggestion that at that point Miss C was willingly accompanying Mohammed Skaf for consensual sex in the toilet block near the Marion Street carpark. Mohammed Skaf's assertion that he had consensual sex with Miss C in the toilet block after having met her on the train was specious.
49It follows that this matter does not cause me to have a sense of unease or disquiet concerning Mohammed Skaf's guilt. It does not raise a doubt or question as to his guilt or as to any part of the evidence in the case against him.