10 The applicant filed detailed written submissions and addressed the Court at some length, thereby raising a number of complaints not included in his notice of appeal. The grounds and the written and oral submissions were not always easy to understand, but the applicant appears to have raised the ground which it is convenient to consider first, namely that the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence: Criminal Appeal Act s6.
11 Of the circumstances relied on by the Crown, none of those set forth in para 5 (a) (b) (c) (d) (e) and (h) was capable of proving beyond reasonable doubt that the applicant was the attacker. Taken together they could not prove as much. Although circumstance 5(i) was a strong piece of evidence, even it could not point exclusively to the applicant, as, for example, a fingerprint might have done, because the applicant's shoes could not have been unique. The finding of the knife and the wrapper fragment in the applicant's pocket, however, was powerful evidence, enough by itself to prove the applicant's guilt. That evidence was supported by evidence of the other circumstances I have mentioned. Taken as a whole, the Crown case was virtually irresistible without some acceptable innocent explanation why the knife and the wrapper fragment were in the applicant's pocket so soon after the attacker left the complainant's house.
12 The applicant gave evidence in accordance with the case I have summarised and the question for the jury was whether the account he gave might reasonably be true. It seems to me that the jury were entitled to regard the evidence as not raising a reasonable doubt about the identity of the accused as the attacker. The account of the applicant's vomiting blood and walking to the hospital, yet not getting treatment for such an alarming complaint merely because he lacked means of identifying himself was implausible. There was no evidence that the applicant appeared ill when spoken to by the police shortly after 8am on the morning of the attack. The story about finding the knife and the box and its contents, too, was implausible.
13 Mr Button also gave evidence. He had not been asked until about April 1999, about a month or a couple of weeks, as he put it, before the day on which he gave his evidence, to try to remember the events he was asked about. Understandably, he could not say exactly when things happened. He lived in a town not far distant from the place where the attack took place and called on the applicant occasionally. Early one morning he called at his caravan and borrowed fifty dollars from him. He said that the applicant was feeling unwell and said that he was going to walk to hospital. Mr Button said that he would walk with him. They walked together. When they came close to the hospital they parted company. The applicant went in the direction of the hospital and Mr Button made for the road out of town, on his way home. The jury were entitled to regard Mr Button's evidence as not supporting the applicant at all. He might have been speaking about an event that really happened, but on a different morning. Mr Button had nothing to say about the applicant's turning back short of the hospital or about the finding of the knife and the box.
14 The expert called by the defence was Professor Pailthorpe, Professor of Textile Technology at the University of New South Wales. He had been a practising textile consultant for many years and his expertise was not doubted. He had been shown photographs which police took of the window sill shortly after the attack. He noted from them that numerous paint, putty and timber fragments appeared to have been recently dislodged inside and outside the house. He looked at some samples of that material. He noticed scuff marks on the surface of the sill in paint which was old and powdery. He said that if the attacker had entered the house through that window he would have expected particles to adhere to his clothing. Such particles could be removed by washing or vacuuming. Brushing would remove the larger particles but the finer ones would remain within the weave of the garment. They would be detectable because they would adhere to adhesive tape placed on and then removed from the garment. He had examined tape-lifts made in this way by the investigating police officers and had detected no particles that might have come from the window sill. In this respect his evidence was the same as that of the investigating police officer Sergeant Salmon, who prepared the tape-lifts. Professor Pailthorpe also examined the applicant's clothes under a microscope but saw no material on them that might have come from the window sill. He was of the opinion that the attacker might by his clothing have transferred loose material from the window sill to the sheet of the complainant's bed. He examined tape-lifts prepared from that bed sheet but found no material of that kind.
15 It often happens during the course of investigations that tests that might demonstrate the presence of a person or of a particular person fail to do so. Fingerprint tests, for example, might fail to reveal the presence of the accused. But such test results do not ordinarily lead to the conclusion that the suspected person was not present. There may be many reasons why such results are inconclusive. Professor Pailthorpe's work provides a good example. He would have expected the attacker to leave on the bed traces from the window sill, yet no such traces were found. That could not be taken as proof that the attacker did not attack the complainant on the bed. It was common ground that he did. All it shows is that results postulated by Professor Pailthorpe might happen, not that they must happen.
16 In my opinion the lack of any sign of fragments from the window sill on the accused's clothes when tested by Professor Pailthorpe on or close to the day of trial was no more than evidence that the applicant might not have been the attacker. The jury were bound to take it into account together with all the other evidence in the case, but were not bound in my opinion to regard it as raising a reasonable doubt that the accused was the attacker.
17 The applicant made a number of complaints on appeal about the quality of the police investigation and the reporting on it. He was represented by counsel at the trial. Counsel cross-examined the principal investigating officer, Sergeant Salmon, about tests he had done. It was established that although he had collected a sample of the applicant's pubic hair and had collected pubic hair from the complainant's bed, he had made no comparison between hair from the applicant and hair from the bed. Although the evidence of the complainant showed that the attacker had placed his fingers in her vagina, there had been no examination of the applicant's hands for DNA or clothes for traces of semen. There was no examination of the applicant's underpants for DNA that might have come from the complainant. It was suggested to Sergeant Salmon that the police had made up their minds as soon as they found the knife and the wrapper fragment that the accused was the attacker and had for that reason not investigated the matter thoroughly. Sergeant Salmon disagreed, for reasons he gave. The jury no doubt considered those matters.
18 Defence counsel established that certain test results had not been reported. For example, fibres taken from the accused's clothes had been compared with fibres taken from the bed and from the carpet in the complainant's bedroom. No match was established. It was suggested that the police were not interested in reporting anything that might assist the accused, only results that might link him with the offences. No doubt the jury considered those matters also.
19 It does not seem to me that the material pointed to ought to have raised a reasonable doubt in the minds of the jury that the accused was the attacker.
20 Ms Franco, a scientist from the Division of Analytical Laboratories, was called to give evidence about the probability that the applicant contributed the contents of the condom found in the bin outside his caravan. As it turned out there was no dispute about that, but Ms Franco was tested on her examination of the outside of the condom and whether if properly tested it might have revealed the presence of DNA that might have come from the complainant. The evidence showed that the condom was floating in water in the bin when the police first saw it. Ms Franco was unable to find any female DNA on the outside of the condom. Commenting upon this, she observed that the longer the object was in water the less the chance that DNA would remain on it. The evidence showed that the condom was first noticed by a police officer soon after 8am but that it was not removed until the physical evidence police arrived to carry out investigations at the caravan park after they had done their tests at the complainant's house. The time was unclear but appears to have been after midday. If the applicant was the attacker he would have thrown the condom into the water soon after 7am, five hours before it was removed.
21 This is in my opinion a further example of a piece of evidence that could not assist the Crown or the defence case.
22 Ms Franco was criticised for delaying until just before the trial any testing of the outside of the condom. It can be assumed that it was not up to Ms Franco to decide what tests to do but to do whatever tests the police asked for, so this was an indirect comment upon the quality of the police investigation. That was no doubt one of the matters the jury considered.
23 None of this material seems to my mind capable of raising a reasonable doubt about the identity of the applicant as the attacker.
24 The applicant put a number of additional arguments on appeal about evidence adduced and not adduced at the trial. It seems appropriate to regard them as asserting that the convictions should be set aside because he did not receive a fair trial. He said that he was taken by surprise by the evidence of Sergeant Salmon, his statement not having been served at committal. It was never clear, however, how much defence counsel did know about the state of police investigations at the commencement of the trial. No evidence was adduced from defence counsel. No application was made by counsel to delay the commencement of the trial or to defer cross-examination of Sergeant Salmon until a full appreciation could be obtained of the evidence he was likely to give. There was no submission on appeal about what defence counsel could or would have done in such an event, or what he was prevented from doing or doing properly by the late service of any evidence. I think that there is no substance in this submission.
25 It was submitted that if his pubic hair had been compared with hair taken from the complainant's bed he would have been proved innocent. It was submitted that the Crown did not put before the jury a videotape showing the search which police carried out at the applicant's caravan. It was unclear to me whether the assertion was that no videotape was made or that a videotape that existed was simply not played. I would assume the latter, because by 1998 it had become usual for police to video tape such events. The submission was that the appearance of the applicant on the videotape would have shown that he had no beard. The complainant had described her attacker as a man with a stubble beard.
26 This is a matter that defence counsel could have dealt with at trial and I assume would have dealt with if there had been substance in it. In any event, the search was not carried out until several hours after the cessation of the attack on the complainant, and evidence that the applicant then had a smooth face would have been equally consistent with his not being the attacker and with his being the attacker but having shaved since the attack.
27 The applicant submitted that he was suffering from a sexual complaint at the time of the attack on the complainant. If he had been the attacker, the complainant would have caught the condition and there would have been evidence of this. No doubt the applicant could have told his counsel about that and no doubt his counsel would, if he considered the material had worth, have introduced evidence of it and an argument based upon that evidence. Understandably, counsel did not. There is no substance in the submission.
28 The applicant submitted that he had evidence of a count of his blood taken in April 1998, not long after these events. It was not clear to me what the relevance of such evidence would be. The applicant related it to part of his cross-examination before the jury, though I have not been able to detect any relevant cross-examination. At any rate, the evidence was not put before the Court and there is no need to deal further with the matter.
29 None of these complaints seem to me to have substance. They do not in combination show that the applicant did not receive a fair trial.