The Evidence
3 On the night of 10 September 1998, Mrs Ha Thy Nguyen went to bed in her house at 42 Silverwater Crescent, Lansvale. She locked all the doors of the house but neglected to activate the security alarm. She was awoken some time time later by a loud banging on her bedroom door. She heard someone shouting in Vietnamese, "open the door, open the door. I need to take your money". She tried to contact a neighbour using her mobile phone. Whilst speaking to him, the door was slammed vigorously before being pushed open.
4 An intruder, whose face was covered, entered and asked where her money was. He was armed with a steering wheel lock or similar implement. She replied that all of her money had been previously robbed, there having been such an event at her home in 1996. The intruder ransacked her room, taking a wallet containing her credit cards, five bags and a school bag. These facts gave rise to Count 1.
5 In the course of these events, Mrs Nguyen yelled out to her adopted son Cuong. Cuong, who was alerted by this cry for help, unlocked his door and saw two men whose faces were covered standing outside the bedroom door of Mrs Nguyen. They appeared to be hitting the door with a steering wheel lock and to be speaking in Vietnamese. He closed his door but when he reopened it in response to Mrs Nguyen's continuing calls for help, he was struck on the back by one of the two intruders. Demands were made of him as to where the money was.
6 Mrs Nguyen, at this point, ran from the house and went to the home of a neighbour to raise the alarm. One of the two intruders went into Cuong's room. They both fled when the alarm from the neighbour's house was activated. Cuong later discovered that $800 in cash had been stolen from the wallet that he kept in his bedroom. These facts gave rise to Count 2.
7 Police attended the scene and found that damage had been occasioned to the front external door and to the door to Mrs Nguyen's bedroom. That room had been obviously ransacked. Detective Kirby gave evidence that he had located three fingerprints on the bedroom door which were identical with the fingerprints of the appellant. He also found a palmprint just below those fingerprints that was also identical with the print of the appellant's left palm.
8 As a result of the absence of any admissions from the appellant, who declined to participate in an interview with police, and as a result of the inability of the victims to see the faces of either of the intruders, or to identify them otherwise than by reference to the fact that they were speaking in Vietnamese, proof of the finding of the fingerprints and of the palmprint and of their recency was crucial to the Crown case. This was made abundantly clear to the jury in the summing-up.
9 It was the case for the appellant, who gave evidence in the trial, that he had visited the house on about three occasions before the offences, as a guest of Mrs Nguyen's son Nam. On one such occasion, but on only one such occasion, he said that he had gone upstairs, with Nam's permission, to change out of some wet clothing. This had occurred when they returned to the house after jet skiing on a lake across the road. On this occasion he said that he had tried a couple of doors before finding a room that was unlocked in which he could change.
10 It was his evidence that he had met Mrs Nguyen briefly on one occasion and that he had been introduced to Cuong once at the home, and again at a nightclub. This aspect of his evidence was, however, disputed by each of those witnesses. The appellant also gave evidence of the layout of the house and of its contents, and spoke of his knowledge that Nam had owned a yellow 800 CC jet ski.
11 A man, Tuan Luu, gave evidence that the appellant had in fact been a friend of Nam and that he had seen him at Mrs Nguyen's house. Tuan Luu, it was established, had been living with Nam at Canley Heights before the departure of the latter for Vietnam. Immigration records disclose that Nam had left for that country on 27 November 1997 and had not returned to Australia after that date.
12 Accordingly, if the explanation offered by the appellant, for the presence of his fingerprints and palm print on the bedroom door, was to be of any practical assistance to him, his visit to the house on the occasion of the jet skiing had to precede that date, and to leave open at least a reasonable possibility that he had left prints on the door that had endured until the time of the offences.
13 Detective Kirby acknowledged that forensic investigative techniques could not date the prints. The chemical composition of a fingerprint, he explained, was an important factor in determining its durability. An oil or sebaceous-based print, he said, lasts a lot longer than a water-based print, while those exposed to the elements tend to last for a lesser time than those that are not so exposed. He also acknowledged that there had been reported cases of fingerprints being found two years after contact, and that prints left on glossy surfaces, such as a door, could last for longer than two years.
14 Critically, for the present case, Det Kirby said that wiping a surface on which a print has been left with water or a cleaning agent would remove it, although dusting would not necessarily do so. It is upon this last-mentioned aspect that this appeal turns because of Mrs Nguyen's evidence that she cleaned all of the doors and windows of the house each weekend.
15 The process of cleaning she described as one that involved dusting the wooden surfaces, spraying them with a special product and then, after thirty seconds or so, wiping them clean with a cloth. She said that she was accustomed to using a ladder to reach the higher points of the doors and windows. It was her evidence that the cleaning of the house occupied a good part of one day and that, whilst she attended to the doors and windows, Cuong cleaned the bathrooms. She added that she would not allow Nam's friends to go upstairs in her house to get changed, although she acknowledged that she was not at home all the time.
16 Her evidence as to the cleaning of the doors and windows was challenged upon the basis that, as a busy and wealthy person who ran a business employing up to ten people, it was improbable that she would do this kind of work herself, and upon the further basis or that she would not be so fastidious or obsessive as to do it religiously every weekend, particularly if the home was occupied only by herself and Cuong or if the upstairs area was excluded to outsiders.
17 It was also suggested that she had not told the truth when asserting that she did not have the money to pay for a cleaner, and that her evidence was, in some respects, inconsistent with that of Cuong. While Cuong did confirm that he and Mrs Nguyen cleaned the house, usually on a weekend and that it would take about a day to do so, he said that the doors were not always cleaned. Their cleaning, he said, occurred when they were dirty, sometimes once a week but otherwise every two or three weeks. He also said that the cleaning process involved applying a liquid spray to a cloth and then wiping the door with it, and using a feather duster to remove any dust. According to him, Mrs Nguyen used a chair or something else to reach high places on the windows or doors.