Ms Chaplin replied, "Yes" (T63/64).
66 Later in her cross-examination by Mr Rolfe for the appellant, the following evidence was given:
"Q. Well just so I'm not confusing anybody, after February of 1994 if someone came in and said I want to borrow this book, and they came to the counter, you would open up the book and you would scan the bar code on the book would you?
A. Yes if they were already a member.
Q. Yes, and that would go straight into the computer, and the computer would then have a record of the fact that that person borrowed that book?
A. Yes.
Q. And then that enables the computer when you print out these member maintenance records to say when it was that the person last borrowed a book?
A. Yes.
Q. The fact that that data's already in there?
A. Yes.
ROLFE: Q. When the book was removed from the system in January of this year written off as such, does the computer just remove any detail from it from people's lobby (sic) maintenance records, so that it no longer - what I'm asking you is if we could (sic) Mrs Hutchins as an example, if Mrs Hutchins had have borrowed the book last, if the book was, if she had have borrowed it in January, just prior to it being written off, and then the book's written off, if you called her record up would it show on her record that she'd borrowed the book?
A. No it doesn't.
Q. No it doesn't?
A. No.
HER HONOUR: Now I'm a bit confused.
ROLFE: Do you wish me to continue?
HER HONOUR: Well no no, it was just that you directed the witness's attention to having borrowed that book.
Q. I was curious about was whether or not if the book is written off the system as Mr Rolfe has suggested does that mean that when you print out the member maintenance record for Mrs Hutchins that it would not show when she last borrowed ie (as said) wouldn't show that if it was that book that you'd written off that she last borrowed that would be wiped from the?
A. Yes.
Q. It would be wiped would it?
A. Yes." (T 66)
67 It was submitted that this was critical evidence as it appeared to demonstrate that there was no proof that the appellant or his family had not borrowed the subject book. The trial judge's summing-up therefore was completely at odds with the actual evidence.
68 It is not entirely clear what records would have remained within the library's computer system if this particular book had not been handed to the police and wiped from the system. But even if one made the assumption (the correctness of which I doubt) favourable to the appellant that the system would have had a record of all persons who had borrowed this book since its acquisition by the library, then I fail to understand how that could assist the appellant's case. As I have already made clear the unchallenged evidence was that neither the appellant nor any member of his family borrowed any book from the library between 20 February 1994 and 18 August 1998. In my view this ground is misconceived and I would refuse the appellant leave to rely upon it.
69 Ground 9 was the next ground addressed by counsel for the appellant. It is in the following terms:
"9. A miscarriage of justice occurred by reason of the trial judge failing to warn the jury of the danger of convicting the appellant on the evidence of the fingerprint given the delay between the commission of the offence and the arrest of the appellant.
70 There was a delay of almost sixteen months between the commission of the offences on 9 August 1998 and the interview and arrest of the appellant by police officers in Orange on 28 November 1999. No evidence was led at the trial to explain the delay in the appellant being interviewed.
71 This ground must be examined in light of the appellant's submission that the Crown failed to eliminate beyond reasonable doubt the possibility that prior to 9 August 1998 the appellant had innocently touched the subject book in circumstances of which he was unaware or had no recollection.
72 It was submitted that the longer the delay between the offences and the arrest of an accused, the more unlikely it becomes that the accused can give an explanation for the appearance of a fingerprint on a moveable and relatively prosaic object such as a book, or to raise an alibi. It was submitted that the jury should have been told of the difficulty of defending this matter where there had been such a considerable delay. As the majority of the High Court (Brennan, Dawson, Toohey JJ) pointed out in Longman v The Queen (1989) 168 CLR 79 at 86, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case citing Bromley v The Queen (1986) 161 CLR 315 at 319, 323-325 and Carr v The Queen (1988) 165 CLR 314 at 330..
73 Reliance was placed by the appellant upon the later observations of the majority in Longman (at p 91):
"But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg v Spencer [1987] AC at 141. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW) (1989) 168 CLR 23) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice."
74 Further, support for the ground of appeal was sought to be obtained by the appellant from the judgment of Williams J in R v Peel (1999) 2 Qd R 400 esp at 410.
75 Peel was appealing from his conviction, inter alia, on one count of attempted arson of a dwelling house at Townsville.
76 The Crown case was that Peel had thrown a Diet Coke bottle filled with a flammable substance at the house. Investigating police located a number of broken pieces of glass from a Diet Coke bottle at the scene including one piece which still retained the label. The appellant's fingerprints were located on the label.
77 The appellant elected not to give evidence and the trial judge gave the jury a direction in accordance with Weissensteiner v The Queen (1993) 178 CLR 217 to the effect that the jury might draw inferences adverse to Peel more readily by considering that he, being in a position to deny or explain or answer how his fingerprints came to be on the bottle has failed to do so.
78 Williams J said, at 410:
"One can readily understand the dilemma faced by an innocent person in the position of this appellant. Was it the Coke bottle I placed in the rubbish bin at home on 1 September 1995 after consuming its contents? Was it the Coke bottle I picked up at the supermarket on 15 September 1995 but returned to the shelf because it was not cold enough? Was it the Coke bottle I had used for some to store fuel for the motor mower before discarding it at the rubbish dump? And so on. How could it be said that any person whose fingerprints happened to be found on the label of a Coke bottle was in possession of knowledge as to how those fingerprints came to be there when there was no other evidence linking the person to the coke bottle (particularly where the question was raised for the first time many months after the fingerprints had been deposited).
The simple fact is that there was no basis at all for the learned trial judge concluding that this appellant had knowledge as to how his fingerprints came to be on the Coke bottle in question. For that reason it was not a Weissensteiner situation.
In effect what the learned trial judge was saying in this case was that because the appellant's fingerprints were on the bottle he was under some obligation to go into the witness box and swear on oath that he did not commit the crime. That, and that alone, is the only material question which could have been asked of the appellant; did you prepare or throw this Molotov cocktail? Weissensteiner clearly does not compel an accused person to do that. The Weissensteiner direction in this particular case completely eroded the appellant's rights."
79 This view did not obtain the support of the other judges on the Court of Appeal, McMurdo P and Pincus JA, who both took the view that a Weissensteiner direction was appropriate.
80 Of course the first observation to be made here is that in the instant case the judge did not give a Weissensteiner direction and, indeed, made no comment at all with regard to the election by the appellant not to give evidence or to call evidence. Her Honour made it clear to the jury that the appellant relied upon his denials in the ERISP and the alleged deficiencies in the Crown case.
81 There is a clear difference between a Diet Coke bottle, of which there were no doubt countless in Townsville at the time of the offences alleged to have been committed by Peel, and the case of the book "Solo" in the instant case. At all relevant times there was only one copy of the book "Solo" held by the Deniliquin Library.
82 I do not consider that the present appellant obtains any real assistance from Peel's case so far as the subject ground of appeal is concerned.
83 When one considers Longman's case, it must be remembered that the delay between the alleged offences and the complaint which motivated police officers to interview Longman was to the order of twenty years. This was, of course, a vastly longer period of delay than in the instant case.
84 In considering whether there was any obligation on Judge Latham to give a direction of the nature outlined in this ground of appeal it is appropriate to consider briefly some authority relating to the cogency of fingerprint evidence.
85 In R v Castleton (1909) 3 Cr App R 74, a conviction for breaking and entering was upheld by the Court of Criminal Appeal when there was no other evidence of identity of the accused. Castleton is still cited in the current editions of "Cross on Evidence" and "Phipson on Evidence".
86 In Parker v The King (1912) 14 CLR 681 the High Court was concerned with an application for special leave to appeal from a decision of the Court of General Sessions at Melbourne. The applicant had been convicted of breaking into a shop and dwelling and stealing therefrom the contents of a safe.
87 The only evidence against the applicant depended upon a comparison of one of several fingerprints found on a bottle which was in the shop during the relevant period with a print of the middle finger of the applicant's left hand which was taken in gaol.
88 The High Court (Griffith CJ, Barton and Isaacs JJ) refused leave. In refusing leave the Chief Justice said, on behalf of the Court:
"We think that leave must be refused. We are asked to allow the point to be argued whether, when evidence of finger prints is the only evidence of identity, it is sufficient to support a conviction. Leave is asked in the hope that the rule may be laid down that it is not. Signatures have been accepted as evidence of identity as long as they have been used. The fact of the individuality of the corrugations of the skin on the fingers of the human hand is now so generally recognized as to require very little, if any, evidence of it, although it seems to be still the practice to offer some expert evidence on the point. A finger print is therefore in reality an unforgeable signature. That is now recognized in a large part of the world, and in some parts has, I think, been recognized for many centuries. It is certainly now generally recognized in England and other parts of the British Dominions. If that is so, there is in this case evidence that the prisoner's signature was found in the place which was broken into, and was found under such circumstances that it could only have been impressed at the time when the crime was committed. It is impossible under those circumstances to say there was no evidence to go to the jury."
89 A recent judgment in some respects similar to the instant case is that of Moreshead v Police [1999] SASC 162 (16 April 1999). In that case Debelle J was concerned with an appeal against conviction by a magistrate of the appellant for illegal interference with a motor vehicle.
90 Mr and Mrs Henshelwood, the owners of the motor vehicle, operated a shop in Mt Gambier. The car had been parked in the front yard of their house overnight. The next morning Mr Henshelwood noticed that someone had interfered with the car. Two doors had been opened. The contents of the glove box and a tray in the dashboard were strewn over the floor and seats of the car.
91 Three pieces of paper were later removed from the front seat and were examined for fingerprints. One was a facsimile copy of a price list. It was not disputed before the magistrate that the price list bore a thumb print identical with the print of the appellant's left thumb. The prosecution case was the only explanation for the fingerprint being upon the price list was that the appellant was the person who had illegally interfered with the car.
92 Evidence was given by Mr Henshelwood that the price list was a confidential document which was kept in a position within the shop so that it could not have been seen by or handled by customers.
93 The appellant gave evidence that he was a frequent customer at the shop. The magistrate said that the appellant was not able to suggest that he had any specific memory of a time when he could have innocently touched the price list and put his thumb print on it. All that he said was that it could have happened on one of those occasions when he was visiting or a customer at the shop.
94 His Honour referred to the fact that the magistrate rejected the explanation of innocent touching, stating that it was "so remote as to be fanciful".
95 The magistrate concluded that the prosecution had excluded any reasonable hypothesis consistent with the appellant's evidence. In dismissing the appeal, Debelle J said:
"The magistrate's conclusion was clearly open to him. The prosecution had proved the practices adopted by Mr Henshelwood and his staff in running the shop. The price list was a confidential document which would not be left in a place where it could be seen, let alone touched, by customers. The magistrate accepted Mr Henshelwood's evidence. It was highly unlikely that the appellant could have inadvertently and innocently touched the price list. Furthermore, a thumb print suggests more than a mere inadvertent brushing against the document. Instead it points to the price list being held between the thumb and fingers.
The magistrate rejected the appellant's evidence. In any event, the appellant had not adduced any evidence to show how he might have innocently touched the price list. The appellant did not, of course, have to prove anything but it is relevant to note that there was no evidence from the appellant on that issue. In short, the magistrate was justified, on those facts, to conclude that there was a reasonable possibility that the appellant had innocently touched the price list. The effect of the appellant's case required that there be some contact with the price list in the shop. The appellant's evidence does not seriously allow for that possibility. The appellant's case required that, of all the paperwork which was generated in the shop business, it was this price list which came to be in the vehicle and that it was the very price list which the appellant had touched. That is a long line of coincidence, so long that it stretches human credulity to breaking point.
The magistrate was, in my submission, correct to conclude that the explanation offered was fanciful. He was justified in concluding that the prosecution had excluded any reasonable hypothesis consistent with the appellant's innocence.
Mr Smith, who appeared for the appellant on this appeal, submitted that the magistrate had erred in that he had treated the evidence of the accused as hypothetical and, on that basis, had wrongly rejected in on that ground alone. He relied on the observations of Fullagar J in Giles v Dodd (1974) VLR 465 at 468 to 469. That was a case depending on its own facts. Furthermore, the magistrate's reasons indicate that he relied on other grounds. He was not prepared to accept the evidence of the appellant. The explanation of innocent touching had not been supported by evidence and he was entitled to reject it as fanciful. The appeal against the conviction must, therefore, be dismissed.
96 The above cases emphasise the cogency which the criminal law attributes to fingerprint evidence.
97 It was unfortunate in the present case that there was a delay of almost sixteen months before the appellant was interviewed. However, I do not consider that the delay, or other circumstances of the case, called for the warning which the appellant contends should have been given consistent with Longman.
98 In my view it would, in the light of all the evidence, have been unrealistic for her Honour to have given the direction suggested. Fairness to the appellant did not require such a direction. No direction along these lines was sought by trial counsel and I do not consider that the appellant should be given leave to rely upon this ground.
99 Ground 4 is in the following terms:
"A miscarriage of justice occurred by reason of the failure of the trial judge to direct the jury as to the manner in which they might deal with the failure of the defence to call evidence."
100 It was submitted that there was a significant danger in this case that the jury might engage in an impermissible line of reasoning relating to the failure of the appellant to give evidence.
101 Further, it was argued there was a significant danger that the jury might engage in an impermissible line of reasoning relating to the failure of the appellant to provide an explanation for the fingerprints on the book. It was submitted that the need for a direction was made all the more necessary by reason of the following comment by her Honour, prior to counsel addressing the jury:
"So when I say you're not entitled to speculate about matters that haven't been the subject of evidence what I mean is you can't go off thinking about things that perhaps could have been done in relation to the semen weren't done because if there was anything that was relevant I assure you it would have been placed before you." (T 99)
102 In the joint judgment of Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi v The Queen (2001) 75 ALJR 931 at 941, their Honours said:
"In the course of argument of the present matters it was suggested that if a judge said nothing to the jury about the fact that an accused had not given evidence, the jury may use the accused's silence in court to his or her detriment. Plainly that is so. It follows that if an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt."
103 Again no request for such a direction was sought by the appellant at the trial. Nevertheless, the omission on the part of her Honour to direct the jury in relation to the election of the appellant not to give evidence was said to be a critical defect in the trial.
104 Specifically, in the circumstances it was argued that it was appropriate for her Honour to direct the jury and to warn them that the appellant's silence in court was not evidence against him; that his silence did not constitute an admission; that his silence may not be used to fill gaps in the evidence tendered by the prosecution and that his silence may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. In this particular context, the jury should have been reminded that the onus of proof was always on the Crown to establish its case beyond reasonable doubt in relation to all the essential elements of the charges which it must prove. It is quite impossible to conclude how the jury used the fact that the appellant did not enter the witness box in determining whether the Crown had not proved its case beyond reasonable doubt.
105 In Azzopardi the High Court did not state that such a direction was mandatory in every case. Obviously some element of discretion was left to the trial judge. It is not every case in which counsel for the defence would necessarily consider that his or her client was well served by such a direction. Particularly, as here, where effectively the record of interview was constituted by denials.
106 Indeed this is a case where it would not have been surprising if the Crown had sought a Weissensteiner direction. It is not without significance that defence counsel did not seek any direction in the terms of Azzopardi. This may have well been a sound tactical decision in view of the consistent denials in the ERISP.
107 It may well be that her Honour took the view (and one can understand why she would) that the safer and fairer course would be to make no reference at all to the election by the appellant not to give evidence or call any evidence.
108 I am not persuaded that the appellant has made out a case for an entitlement to leave under Rule 4 to rely upon ground 4 because I do not consider the absence of any direction along the Azzopardi lines constituted a possible miscarriage of justice. Reference may be made to the recent decision of this Court in R v Richards [2002] NSWCCA 38 (28 February 2002) where the same approach was taken. I would therefore refuse leave to the appellant to rely upon this ground.
109 The third ground of appeal is in the following terms:
"A miscarriage of justice occurred by reason of the trial judge's failure to properly direct the jury in relation to circumstantial evidence and the burden of proof."
110 Her Honour gave the following direction in relation to circumstantial evidence:
"The Crown case in respect of proof of the identity of Mrs Hutchins' assailant, being the accused, depends on what we call circumstantial evidence. What that means is that there is no direct evidence in the form of a witness who says 'I saw the accused commit this crime'. In other words Mrs Hutchins does not come along here and say 'It was the accused who broke into my flat, it was the accused who stood by my bed, it was the accused who did these things to me'. She does not say that. All she can do is describe the person who did these things. So there is no direct evidence that it was the accused who assaulted her.
Instead the Crown sets out to prove certain circumstances, that is facts and events which the Crown says, when taken together, prove beyond reasonable doubt, that he is guilty because there is no other reasonable explanation.
Now it is a perfectly legitimate way for the Crown to prove its case. And just while I am on the subject, Mr Rolfe made a submission to you a short time ago that the Crown called the librarian because they really did not believe their own case. Well I suppose that is one way of looking at it, but really there is a duty upon the Crown to call evidence of matters of that nature, that is who belonged to the library, who borrowed books, when was the last time they borrowed books, things of that nature. The Crown has a duty to call that evidence, in this type of case, in order to exclude all the things that you would naturally think were reasonable explanations consistent with innocence.
So let me go on to tell you a little bit more about how the Crown proves a circumstantial case. Circumstantial evidence is not necessarily any less reliable than direct evidence, in fact in some cases it can be more compelling than direct evidence. However the point about it is this, before you can find an accused person guilty of a crime on the basis of circumstantial evidence, you must be satisfied that such a finding is not only reasonable, but that it is the only reasonable finding to make.
It follows then that if there is another finding which is reasonably open on the evidence, that is a reasonable explanation which is consistent with the innocence of the accused, then it would be your duty to find the accused not guilty . Now when you consider circumstantial evidence you do so in the light of all the material in the trial. (My italics.)
111 Particular criticism was directed to the italicised words in the last paragraph,
112 It was argued that because this direction relates to a "finding" and an "explanation", it was unfair because the appellant did not give an explanation in evidence or in his interview of how the fingerprint came to be on the book. He vigorously denied the charge but provided no "explanation". The case for the appellant was essentially that the Crown had not excluded the possibility that the appellant came into contact with the book in the month preceding the assault, somewhere other than in the library and other than in the complainant's premises (ROS 12-13).
113 It is suggested that her Honour erred in that she has placed some onus on the appellant to explain away or establish his innocence as distinct from the obligation being upon the Crown to eliminate any hypothesis inconsistent with the guilt of the accused.
114 There is authority to the effect that it is preferable to formulate the circumstantial evidence direction by reference to guilt rather than innocence. Reference may be made, for example, to R v Baartman [2000] NSWCCA 298.
115 On the other hand, as counsel for the appellant fairly conceded, there is much authority to justify the direction along the lines which her Honour gave. However, he contended that in the context of this case where there was no warning of the sort referred to under ground 9; where there was no direction about how the jury should deal with the failure of the appellant to testify, and where the judge directed the jury in terms of whether or not an explanation is a reasonable one, that situation in totality created an unfair trial and created a substantial risk of miscarriage of justice.
116 It was argued that her Honour's reference to a reasonable explanation consistent with the innocence of the appellant focussed the jury's mind upon the absence of any explanation from the appellant, and in the absence of any directions about the failure to testify and the absence of any warnings, such as were referred to earlier, created in combination a risk of a miscarriage of justice.
117 Counsel for the appellant made it clear that he did not rely upon the third ground of appeal in isolation but necessarily linked it up with the other grounds which I have already referred to and dealt with. For my part, the appellant's case on ground 3 has been significantly weakened necessarily by the views which I have formed in relation to the earlier grounds of appeal.
118 Nevertheless, I have considered the thrust of the appellant's argument and noted there was an absence of the directions and warnings which he sought in the earlier grounds of appeal which I have dealt with. I am, however, quite unpersuaded that the manner in which her Honour dealt with circumstantial evidence and the burden of proof could have constituted a miscarriage of justice. Accordingly I would refuse leave to rely upon ground 3.
119 Grounds 7 and 8 are in the following terms:
"7. A miscarriage of justice occurred in that the trial judge failed to refer the jury to the evidence concerning possible hypotheses consistent with innocence.
8. A miscarriage of justice occurred in that the trial judge failed to adequately put the defence case to the jury."
120 It was contended under these grounds that a direction concerning how the jury might use the ERISP and view the defence case should have been given. There was no direction in the summing-up as to how the interview might be used by the jury.
121 It was submitted that the absence in the photographs of a mole/freckle on the appellant's shoulder blade should have been the subject of a specific direction.
122 No direction was given relating to the possibility that a person may not know when or how they had touched an object on which their fingerprint was found. Reliance was sought to be placed in this regard upon the judgment of Williams J in Peel, to which I have earlier referred.
123 Then it was said no direction was given drawing the attention of the jury to the fact that although the appellant did not go to the library to read books as stated in his ERISP, he did attend the library to use the computer thus affording access to the book and the possibility of touching it.
124 It was submitted that the jury should have been directed that they had to consider the possibility (rather than any explanation) that the appellant had touched the book and that there may have been many occasions, given the fact that he attended the library, together with the size of the population of Deniliquin, when he could have been in innocent contact with the book.
125 This Court does not have the benefit of transcript of counsel's addresses at the trial. Therefore the detail of the matters relied upon by defence counsel is not available.
126 In the summing-up her Honour made it perfectly clear to the jury that the complainant did not identify the appellant as the person who broke into her flat and assaulted her.
127 Her Honour summarised the defence case (without objection from trial counsel) as follows:
"Now as to these circumstances the accused says the following. Firstly the accused points to the fact that Mrs Hutchins describes the assailant's hair as orange or lemony, as opposed to Detective Mercer's description, which was blonde. Whether or not that is a material inconsistency is a matter for you.
I have already pointed to the fact that it was the practice of male youths in Deniliquin at that time to dye their hair in that fashion, although Detective Mercer said nothing about the colour, merely that it was the fashion to dye the top of the head in some form or other.
The accused points says, or points out rather, through his counsel, that he was 17 at the time of these assaults, not 23 to 25. Again whether you think that is a material difference in terms of the description given by Mrs Hutchins and the accused's appearance is a matter for you.
Also, the accused points out that the substance of the answers given by the accused in the record of interview, and all of the investigations conducted by the Crown in order to exclude the possibility that the accused had handled this book in some innocent fashion prior to 9 August, all of those investigations and questions were focused on whether or not he borrowed books from that library or read books from that library. There was never any question asked of him which could have ascertained whether he had touched that book at some period prior to 9 August 1998.
In effect the accused's case is that the Crown cannot exclude the possibility that the accused came into contact with that book in the month preceding the assaults, somewhere other than the library, and other than in Mrs Hutchinson's (sic) premises, that is sometime before it was borrowed by Mrs Hutchins. That is essentially the accused's case."
128 It seems to me that her Honour has, in these passages, fairly summarised the crucial aspects of the defence. I am not satisfied that these grounds of appeal have been made out and I would reject them.
129 Finally I turn to the first ground of appeal, which is in the following terms:
"A miscarriage of justice occurred by reason of the absence at the trial of new evidence."
130 The appellant relied, for the purposes of this ground, upon an affidavit dated 27 May 2002 of the solicitor who represented the appellant at the trial. In pars 2 and 3 of that affidavit, he deposed:
"I believe that this trial was about the second or third District Court trial I had conducted as advocate. On this occasion I had attempted to brief a public defender to appear in the matter but no public defender was available.
I did not consult a fingerprint expert in this matter. I spoke to a police officer stationed in the local area who has some expertise on the subject of fingerprints. I also conducted some research of my own. This research was in relation to the identification of fingerprints only. It did not occur to me to consider getting a fingerprint expert's report in relation to the age of the fingerprints."
131 The appellant also filed an affidavit of Terence Leslie Nesbitt, an independent fingerprinting expert, which contains a report dated 4 March 2002.
132 Mr Nesbitt does not challenge the finding of Detective O'Sullivan that the thumb prints were those of the appellant. However, he seeks to contradict the proposition that the fingerprints found were four weeks or less old. The particular passage in the affidavit upon which the appellant relies is in the following terms:
"The answers given by Detective O'Sullivan are based on subjective speculation and are unlikely to be the result of anybody's research. His opinion is based on a premise that is misleading because he cannot reliably judge the age of the fingerprint impressions based on the manner in which the fingerprint develops or its appearance after development. The manner in which a fingerprint develops is indicative of its composition and not its predictable chronological age. A fingerprint deposited in sebum or other body secretions could well have an extended life and if the fingerprint is deposited in foreign matter such as oil, grease or food material it (may) well have an indefinite life, save subsequent mechanical damage and may still appear strong and fresh when later developed giving a false indication of its age."
133 Detective O'Sullivan prepared a report responding in detail to the criticisms found in Mr Nesbitt's report. As to the most significant aspect of the report, being the section relied upon which I have quoted above, Detective O'Sullivan replied as follows:
"To add to that I always carry out examinations with the aid of a strong torch. On some surfaces, such as plastic, this enables me to see latent fingerprints before they are developed. In this case the latent fingerprints were not clearly visible with the use of the torch. This indicated to me that the latent fingerprints were not heavily contaminated by a foreign substance such as hand cream, food or other similar material. It is always my practice to lift fingerprints, that is the use of an adhesive item such as fingerprint lifting tape to remove the developed latent fingerprint from the surface on which it was developed. When lifting fingerprints developed using grey powder I attempt to redevelop the latent fingerprints using black powder because I have a preference for looking at black ridges, so much so that I use black powder on glass. On this occasion the latent fingerprint would not redevelop, this was because there was insufficient material left on the surface. It is the situation that heavy latent deposits can be redeveloped on several occasions because of the amount of material available. Considering the clarity of the original developed latent fingerprint this lack of redevelopment further indicated to me that the latent impression was not heavily contaminated and supports my prior observations and comments."
134 The Crown gave to the Legal Aid Commission notice that it required Mr Nesbitt for cross-examination and the Legal Aid Commission indicated that it required Detective O'Sullivan for cross-examination.
135 This Court agreed to the evidence of Mr Nesbitt and Detective O'Sullivan being taken, but reserved the question whether Mr Nesbitt's evidence was admissible as fresh evidence consistently with the authorities and the circumstances of this case.
136 It is convenient, despite their length, to quote the following passages from the judgment of Gibbs CJ in Gallagher v The Queen, (1985-1986) 160 CLR 371 at 395-396:
"In a case such as the present, when there was no wrong decision of any question of law or other irregularity at the trial, and the verdict of the jury was not unreasonable or insupportable having regard to the evidence at the trial, it is apparent that the Court of Criminal Appeal can allow the appeal only if it considers that a miscarriage of justice has occurred by reason of the fact that the evidence now adduced was not called at the trial. Although many cases have provided a gloss on the words of s 6 and similar provisions, it is important to remember that the fundamental question is whether a miscarriage of justice has occurred, and that the principles that may be extracted from the authorities 'should not … regarded as absolute or hard and fast rules': Green v The King (1939) 61 CLR 167 at 175. The circumstances of cases may vary widely, and it is undesirable to fetter the power of Courts of Criminal Appeal to remedy a miscarriage of justice. I respectfully agree with the statement of King CJ in Reg v McIntee , (1985) 38 SASR 432 at 435, that 'appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand'.
The authorities disclose the three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig v The King (1933) 49 CLR 429 at 439, as follows:
'A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.'
Perhaps no more elaborate statement of the position can usefully be made."
137 In essence the real issue between the two experts is that Mr Nesbitt does not accept Detective O'Sullivan's firmly expressed view that the appellant's fingerprints could not have been placed on the subject book more than four weeks prior to the offences having been committed.
138 During their evidence in chief and cross-examination both experts adhered to the views that they had expressed in their reports and in Detective O'Sullivan's case, his evidence.
139 There were, however, two particularly significant matters which arose during the course of Mr Nesbitt's evidence.
140 Firstly, he adhered to the view that mechanical damage can destroy a fingerprint. In this regard the following evidence is relevant and was given during the course of his examination in chief:
"Q. If I can go back to Sergeant O'Sullivan's response to your report. Page 6, going over to page 7, there is a discussion by him of a process called polymerisation or depolymerisation?
A. Yes.
Q. He has explained on page 7 why he expressed the opinion that he did that the plastic surface will destroy a fingerprint in time. It's virtually an enemy of fingerprints. Do you see that on page 7 of his report?
A. Yes, I do.
Q. What's your response to that?
A. I think it's an unknown quantity in this case as to how long a fingerprint would last on that surface. I don't think sufficient studies have been done into it to determine how long a fingerprint would last. I believe that a fingerprint would last an indefinite amount of time depending on its composition on a surface such as this.
Q. What factors would influence the speed with which a process of destruction referred to here, might take place?
A. Mechanical damage; subsequent handling of the item can very well impact on its duration ; the very nature of its composition. If composed of very volatile body waste, it could have a short life. Should it be contaminated or composed of other items that have a longer life, then the predictable life of the fingerprint could be unlimited." (My underlining.)
141 This reference to mechanical damage, which was repeated later in Mr Nesbitt's evidence, is very important in the context of the subject case where the relevant object upon which the fingerprints were found was a frequently handled library book.
142 Secondly, Mr Nesbitt conceded that being able to look at a latent print at a crime scene is the best evidence. During the course of his cross-examination he gave the following evidence (T 30):
"There is no substitute for being able to go and have a look at a latent print at a crime scene, is there?
A. I wouldn't say that. It's certainly the best evidence . I have examined and conducted thousands of examinations at crime scenes and I have also had an opportunity as a consultant from both sides. I have worked for the prosecution, I have worked for the Royal Commission, I have worked for both sides of the Winchester case. I have had a rare opportunity for a police officer to actually see both sides of both the prosecution and the defence. I have even done cases where I have been on both the prosecution and the defence at the same time, there being no ownership in an expert." (My underlining.)
143 The question then is even if Mr Nesbitt's evidence could be categorised as fresh evidence, does it have cogency and plausibility as well as relevancy? Would it be of such a character that, if considered in combination with the evidence already given at the trial, the result ought in the minds of reasonable people, be affected? Would such evidence be calculated at least to remove certainty of the appellant's guilt which the former evidence produced?
144 I am unable to conclude that Mr Nesbitt's proposed evidence could satisfy these somewhat demanding tests. The potential for mechanical damage to destroy a fingerprint must necessarily render it unlikely that a fingerprint on a frequently handled library book would last for any great duration. In this context of course consideration must be given to Ms Chaplin's evidence relating to the cleaning and recovering procedures in the library.
145 Secondly, Mr Nesbitt fairly concedes that Detective O'Sullivan had an advantage which he did not have, namely, of examining the latent print at the crime scene which would admittedly be the best evidence.
146 In any event, at the end of the day the evidence led by the Crown at the trial that the fingerprints could not have been on the book for longer than four weeks was not a critical aspect of the Crown case. The Crown had excluded any rational possibility that the appellant had come into contact with the book at any stage prior to the commission of the alleged offences. I am unable to see therefore that Mr Nesbitt's evidence would have had any realistic impact upon the strength of the Crown case.
147 Thus, in my view, even if the evidence of Mr Nesbitt could have satisfied the primary test of being fresh evidence (which it is not necessary to decide), the evidence, even if believed, would not in my view have reasonably led the jury to return a different verdict or different verdicts.
148 I might say, parenthetically, that in his report Mr Nesbitt made the following observations:
"Possible deposition scenarios for the two left thumb impressions could be:
1. gripping the book with the left hand as the perpetrator snatched the book from the victim's hands as described by the victim. This scenario is consistent with the version of events given by the victim, ie, with the perpetrator holding the knife in his right hand and snatching the book in his left;
2. holding the book to lift, carry, hand over or receive it either singly or in a pile of other books;
3. resting the left hand on the rear of the book."
149 Thus the first of the three scenarios adumbrated by Mr Nesbitt precisely fits in with the Crown case.
150 I would reject the first ground of appeal.
151 In my view the appeal should be dismissed.