Regina v Allan Troy Hill

• 1 - IN THE COURT OF CRIMINAL APPEAL 2004/2565

BRYSON JA BARR J HOEBEN J

1 MARCH 2005 REGINA v ALLAN TROY HILL Judgment 1 BRYSON JA: I agree with Barr J. 2 BARR J: On 22 September 2004 the applicant, Allan Troy Hill, filed a notice of appeal against his conviction of a number of offences in the District Court. The offences were committed on 28 March 1998. The jury found him guilty on 29 April 1999. Since his notice of appeal was not filed until a time more than five years after the expiry of the time allowed for the filing of an appeal, the applicant must obtain an order extending the time for filing his appeal. ` The case at trial 3 At 5:30am on 28 March 1998 a man broke into the house of the complainant and sexually assaulted her in a number of ways. The complainant noticed a strong smell of alcohol on her attacker. He kept up his assaults until he left the house at about 7am. During his attack he held a knife against the complainant's face. The complainant took hold of the knife to try to ward off the attack and received superficial cuts to her hand. At one stage of the attack the attacker put on a condom. Eventually the complainant told her attacker that he should go because her estranged husband, whom she named, was coming to pick her up for work at 7am. The attacker asked whether he was the boyfriend with the motor bike. The complainant's boyfriend did indeed have a motor bike. Another remark that the attacker made showed that he knew that the complainant had a certain sexual aid of a certain colour. The attacker left at about 7o'clock and the complainant immediately telephoned her husband and told him that someone had broken in and that she had been raped. He arrived at the house shortly afterwards and got in touch with the police. 4 During the assault the complainant felt the T-shirt worn by her attacker. She felt stripes on the shoulders and the sleeves, formed by raised pieces of material sewn on. It had a round neck. She felt his jeans. She described him as being about five foot seven and as having short, wiry, curly hair. She said that he was darked skinned and had stubble on his face. 5 It was the Crown case that the applicant was the attacker. 6 The complainant's description of her attacker was of a man not unlike the applicant in appearance but fell a long way short of identifying him. The attacker's clothes, by her description, were not unlike the applicant's clothes, but she could not positively identify them. Nobody else saw the events. There were no admissions. The Crown case was circumstantial. The circumstances relied on by the Crown were as follows - (a) The applicant lived in a caravan park which was situated only about 130 metres from the complainant's house. (b) At 5am the applicant left an hotel where he had been drinking and caught a taxi, which took him first to a convenience store and then to the caravan park. The driver estimated that he delivered the applicant to the caravan park at about 5:15am. (c) The attack took place between about 5:30am and 7am. (d) The general description of the attacker matched the applicant's height and colouring. The attacker's clothes were not unlike the applicant's. (e) A T-shirt and jeans recovered from the applicant matched the complainant's description of clothes worn by the attacker. (f) At about 8:10am a knife owned and identified by the complainant, the missing one of a set of knives of graduated size, was found in the pocket of the applicant's jeans. (g) Also found on the applicant was box which had contained six condoms. Five only remained in the box. With the box was found a fragment from the wrapper of a condom. A second fragment was found in the complaint's house. A third was found in a rubbish bin in the street at a place between the complaint's house and the caravan park. Although the three fragments did not make a complete wrapper, their torn and jagged edges matched one another. (h) A condom of the same type as those in the condom box was found in a rubbish bin by the door of the applicant's caravan. DNA testing of the contents showed that it was highly probable that they came from the applicant. (i) When leaving the complainant's house, the attacker left shoe prints in the dust on the ground. The size and pattern of one of the prints matched the sole of a shoe taken from the applicant. 7 The defence case was that the applicant returned to the caravan park somewhat later than the taxi driver said, about 5:30am. He had been feeling sick and was vomiting blood. He went to his caravan and a cousin of his, Mr Stephen Button, arrived and asked for a loan. He lent Mr Button $50.00 and the two of them walked together towards the hospital to obtain treatment for the applicant. When he arrived at the hospital the applicant realised that he had no means of identifying himself, so he did not enter. Instead, he turned round and walked back towards the caravan park. On the way he came across a knife and a condom box and its contents lying on the footpath near a bush. He picked them up and put them in his pocket. He threw the fragment of wrapper into the rubbish bin in the street. It was accepted at trial that the attacker entered the complainant's house by climbing over a painted, wooden window sill. The paint was old and oxidised. The applicant adduced expert evidence that particles of paint would have adhered to the attacker's clothing and the applicant's clothing bore no such particles. During the early hours of Friday, 27 March the applicant had entertained a woman at his caravan and they had had sexual intercourse. He had used the condom the police found in the bin. He did not go to the complainant's house. He did not attack her. 8 There was no doubt that the attacker had committed the offences charged. The jury were satisfied beyond reasonable doubt that the applicant was the attacker and found him guilty of one count of aggravated breaking and entering and committing a sexual assault and five counts of aggravated sexual intercourse without consent. Those counts accorded with the various ways in which the attacker had sexual intercourse with the complainant. It is unnecessary to say more about the detail of the attack.

The appeal 9 The applicant represented himself throughout the preparation of his application and on the hearing. He is not legally qualified. His grounds of appeal are as follows - 1. That I am innocent for these allegations. 2. That evidence was not tested (Forensic evidence - DNA) and the length of time between committal hearings gave investigators ample time to test all evidence. 3. The trial judge may have influenced the juries' decision, by allowing the jury to hear evidence during the trial, evidence as such which was tested at an earlier date to be tested again during the trial. 4. My defensive arguments were doubted, including an alibi. 5. Investigation methods were lack luster, due to the disclosure of a Forensic specialist, were he disclosed that he made a judgmental call, believing they had the offender. This call as such influenced his decision to only examine evidence not to have it tested. 6. The case, investigation and conviction are based on circumstantial evidence. 7. Methods to identify the offender became secondary based on points (5 & 6). 8. Crucial evidence based on physical abnormalities of the offender, were investigated two and a half to three months, after it was disclosed to the investigator[s]. The time of this disclosure is crucial for the time it took to investigate the disclosure.

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.

The delay in bringing the appeal 30 The applicant informed the Court that after the conviction he spoke to his barrister about an appeal and assumed that the barrister would lodge the necessary papers. He realised after some time that that had not been done and thought that since he was out of time nothing else could be done about the matter. The next thing that happened was that at the beginning of 2004 he made application under s474D Crimes Act for an order that an inquiry be held or that the matter be referred to this Court to be dealt with as an appeal. It was only when the registry informed him that he had not exhausted his rights of appeal that he decided to lodge this appeal. 31 These circumstances do not to my mind satisfactorily explain a delay of five years between the conviction and the lodging of the appeal against that conviction.

Conclusion 32 Because delay has not been satisfactorily explained and because there is no substance in any matter the applicant would wish to raise on appeal I would refuse to extend time for the filing of an appeal against conviction. 33 HOEBEN J: I agree with Barr J.

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