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[2002] NSWCCA 258
respondent. Appeal dismissed. The court refused leave to rely on the grounds discussed and did not need to decide whether the independent fingerprint evidence satisfied the threshold requirement of being...
The appeal court upheld SMR's convictions. The case turned on whether he was the assailant, not whether the complainant had been assaulted. The court concluded that the jury had been properly directed overall, that the trial judge was not required to give the particular warnings sought, and that the new fingerprint opinion was not capable of reasonably changing the verdict. The court dismissed the appeal.
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2,199 words · generated 29/09/2026
In Regina v SMR [2002] NSWCCA 258, the New South Wales Court of Criminal Appeal considered an appeal against five convictions arising from a sexual assault on an 82-year-old woman in Deniliquin. The appellant, SMR, was 17 at the time of the alleged offences. The convictions were for an act of indecency, indecent assault, two attempted aggravated sexual intercourse offences, and aggravated sexual intercourse ([5]–[7]).
No linked legislation citations have been extracted yet.
The complainant's account was that a masked man entered her unit in the early morning of 9 August 1998. She said he removed the improvised face covering, threatened her with a knife and assaulted her. During the incident, the intruder took the book she was reading, Solo by Jack Higgins, and threw it across the room ([9]–[19]). The complainant described the man's hair and a mark on his shoulder, but did not identify the appellant as the offender. As the appeal judgment records, no trial issue was taken about whether she had been assaulted as she described. The central issue for the jury was whether the Crown had proved that the appellant was the offender ([46]).
The Crown relied on circumstantial evidence. Two latent fingerprints on the rear cover of Solo were identified by a police fingerprint examiner as the appellant's left thumbprints. The examiner considered the prints to be of good quality and fairly fresh, and estimated that they could have been on the book for up to one month ([32]–[36]). The complainant said she borrowed books from the library on Thursdays, and library records showed no borrowing by the appellant or his family in the period relevant to the prosecution case ([26]–[29], [48]–[51]). The appellant denied the allegations in his police interview. He did not give evidence at trial ([37]–[40]).
The jury convicted him on all five counts. He appealed against conviction, not sentence. Ten grounds had been filed, but grounds 2 and 10 were abandoned ([6], [8]). Carruthers AJ gave the substantive reasons, and Mason P and Hidden J each agreed ([1]–[3]). The appeal was dismissed ([151]).
The court examined several complaints about how the trial judge handled the evidence. The appellant argued that the judge overstated the library's cleaning and recovering practices, and misstated what the library records could establish. The evidence was more conditional than a simple routine: books could be wiped if dirty or dusty, and covers recovered if damaged. The court nevertheless considered the judge's summary of a library practice appropriate. It also found that the records argument did not assist the appellant. The evidence was that neither he nor his family borrowed any book from the library during the relevant period, and the court saw no way the proposed argument about the computer record for Solo displaced that evidence ([47]–[68]).
The appellant also argued that the almost sixteen-month delay between the offence and his arrest meant the jury should have been warned about the difficulty of answering a fingerprint allegation after time had passed. The court considered Longman v The Queen, where the delay was over twenty years and had deprived the accused of means of testing the complainant's allegations ([72]–[73], [83]). It accepted that delay can affect trial fairness, but held that the period here was much shorter and that the surrounding circumstances did not require the proposed warning. It also considered the fingerprint evidence and the fact that the item was a particular library book, not an object of which there were countless examples ([80]–[98]).
On the appellant's silence, the court discussed Azzopardi v The Queen. The High Court's statement, quoted at [102], was that it will “almost always be desirable” to tell juries that an accused's silence is not evidence against them and cannot fill gaps in the prosecution case. Carruthers AJ stressed that Azzopardi did not make the direction mandatory in every case. The trial judge had not commented on the appellant's decision not to give evidence, and defence counsel had not requested a direction. The court considered the context, including the appellant's denials in the ERISP, and concluded that the omission did not establish a possible miscarriage of justice ([103]–[108]).
The court also rejected the claim that the circumstantial-evidence direction improperly placed a burden on the appellant. The judge told the jury that guilt had to be the only reasonable finding, and that a reasonable explanation consistent with innocence required acquittal ([110]). The appeal court acknowledged that it is preferable in some authorities to frame the direction by reference to guilt rather than innocence ([114]). However, it evaluated the summing-up as a whole and did not accept that the language, together with the other alleged omissions, created a miscarriage of justice ([115]–[118]).
The judge had also summarised the defence case. That summary included the differences between the complainant's description of the hair and the police officer's description, the appellant's age compared with the complainant's estimate, and the contention that he might have encountered the book innocently before the offence ([127]). The appeal court found this a fair summary and rejected the related grounds ([119]–[128]).
Finally, the court considered a report from an independent fingerprint expert. That expert did not dispute that the prints belonged to the appellant, but challenged the reliability of estimating their age from their appearance ([131]–[133]). The court applied the fresh-evidence considerations discussed in Gallagher v The Queen and Craig v The King: the evidence needed sufficient cogency, plausibility and relevance to be capable of affecting the verdict ([136], [143]). It highlighted two difficulties. Mechanical damage could destroy prints, and a library book was frequently handled ([140]–[144]). The independent expert also accepted that examining the latent print at the crime scene was the best evidence, an opportunity the Crown expert had and he did not ([142], [145]). The court therefore held that the new evidence would not reasonably have led to a different verdict, without deciding whether it qualified as fresh evidence ([147]).
This judgment did not announce a new general rule about fingerprint evidence, delay warnings, or an accused's silence. It applied existing authorities to the facts before it.
On delay, the court used the general warning principle discussed through Longman and the cited authorities. A warning may be necessary where delay creates a perceptible risk of miscarriage of justice, particularly where it impairs the ability to test the allegations. But the decision does not treat any particular period of delay as automatically requiring a warning. The court compared the circumstances in Longman with the sixteen-month interval in SMR and concluded the latter did not require the direction sought ([72]–[73], [83], [97]–[98]).
On silence, the court affirmed the importance of the Azzopardi guidance while explaining its operation. A direction about an accused's silence will almost always be desirable, but the court did not read Azzopardi as making it obligatory in every trial. The trial context and the possibility that a direction may not assist the defence remained relevant to whether omission caused a miscarriage of justice ([102]–[108]).
On circumstantial evidence, the court recognised the preference in some authorities for a direction framed around whether guilt is the only reasonable inference. It did not hold that every formulation referring to an explanation consistent with innocence is defective. Its conclusion was contextual: the judge's direction, read with the whole summing-up and the way the defence case was put, did not produce a miscarriage of justice ([109]–[118]).
For fresh evidence, the judgment applied the established considerations set out in Gallagher and Craig. The court assessed whether the proposed evidence was credible or capable of belief, relevant, and sufficiently probative that it might affect the verdict. It made clear that the analysis includes the evidence already heard at trial, rather than considering the new opinion in isolation ([136], [143]–[147]). The case therefore illustrates application of existing doctrine, rather than a stated change in the law.
At [110], the trial judge told the jury that a conviction based on circumstantial evidence required guilt to be “the only reasonable finding to make.” In plain English, the jury had to consider the combined evidence and acquit if a reasonable explanation consistent with innocence remained. The Court of Criminal Appeal considered this direction together with the other instructions and rejected the argument that it shifted the burden to the appellant ([111]–[118]).
At [102], the judgment quotes Azzopardi's statement that it will “almost always be desirable” to explain the limits on using an accused's silence. Put simply, juries should generally be told that silence is not proof of guilt and cannot repair weaknesses in the Crown case. But the appeal court did not treat the absence of that instruction as automatically fatal. It assessed the circumstances of this trial and concluded there was no possible miscarriage of justice ([103]–[108]).
At [97]–[98], Carruthers AJ said the delay was unfortunate but did not call for the Longman warning. The practical point is that elapsed time alone does not decide the issue. The court examined how long the delay was, what the accused had lost the opportunity to do, and the character of the evidence in the particular case ([70]–[73], [83]–[98]).
At [144]–[147], the court explained why the independent expert's evidence did not justify setting aside the verdict. Mechanical damage could affect the life of a print on a frequently handled book; the Crown expert had examined the prints at the scene; and the Crown case did not depend critically on the estimate that the prints were no more than four weeks old. The court's conclusion was not that the expert's evidence was inadmissible, but that it would not reasonably have changed the verdict even if believed ([143]–[147]).
The decision is relevant where an accused challenges a conviction based on circumstantial evidence and alleges that jury directions, delay, or forensic evidence created a miscarriage of justice. It is particularly pertinent to arguments that a jury needed a special warning because the accused could no longer explain how a fingerprint came to be on an object. The judgment shows that a court may consider not only elapsed time, but also the object's nature, the evidence linking the accused to it, and whether the delay actually impaired the defence ([69]–[98]).
It is also relevant where an accused did not give evidence and argues that the jury should have been specifically warned not to use that silence against them. The decision directs attention to Azzopardi, but also to the fact-specific assessment of whether omission of the instruction could have caused a miscarriage of justice ([99]–[108]).
For fresh evidence applications, the case is relevant where a new expert disputes an inference drawn from forensic evidence at trial. The court's approach requires examination of the new opinion's practical significance in the context of the whole prosecution case, including what the original expert observed and whether the contested opinion was central to the verdict ([130]–[147]). The decision does not establish that fingerprint evidence always proves identity or that an estimate of a print's age is always reliable. Its reasoning turns on the particular evidence and object in this case.
The judgment text supplied does not identify any later court decision that applied, distinguished, followed, or otherwise treated Regina v SMR. It therefore does not support an account of the case's later treatment or status as precedent in subsequent decisions.
Within its own reasoning, the Court of Criminal Appeal referred to R v Richards [2002] NSWCCA 38 as taking the same approach to a direction about an accused's decision not to give evidence ([108]). It also cited R v Baartman [2000] NSWCCA 298 in relation to the formulation of circumstantial-evidence directions ([114]). Those are authorities the court used in 2002; they are not evidence of how later courts treated SMR.
The court did not decide whether the independent fingerprint evidence met the threshold test for being fresh evidence. It held that, even if the evidence qualified as fresh, it would not reasonably have led to a different verdict ([135], [147]). The judgment therefore leaves that admissibility question unresolved on the facts.
The judgment also does not establish a general time limit after which a delay warning becomes necessary. It explains why the circumstances here did not require one, while contrasting the much longer delay in Longman. The threshold in other cases would depend on the nature of the delay and its effect on the accused's ability to test or answer the prosecution evidence ([72]–[73], [83]–[98]).
Finally, the judgment does not state that a direction about silence is invariably required or invariably unnecessary. It recognises the general desirability of the Azzopardi direction but treats the consequences of omitting it as contextual. Nor does it resolve every question about the preferred wording of circumstantial-evidence directions. It says that a formulation by reference to guilt may be preferable, but rejects the appeal ground on the facts and in the context of the summing-up as a whole ([102]–[118]).
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CITATION : Regina v SMR [2002] NSWCCA 258 FILE NUMBER(S) : CCA 60806/00 HEARING DATE(S) : 28 May 2002 JUDGMENT DATE : 1 July 2002
PARTIES : Regina v SMR JUDGMENT OF : Mason P at 1; Hidden J at 2; Carruthers AJ at 3
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/71/0070 LOWER COURT JUDICIAL Her Honour Judge Latham OFFICER :
COUNSEL : Appellant - S.J. Odgers SC / Tanzareth Crown - W.G. Dawe QC SOLICITORS : Appellant - D.J. Humphreys Crown - S.E. O'Connor CATCHWORDS : Criminal law - appeal against conviction - sexual assaults - cogency of fingerprint evidence - whether Longman direction required - whether fresh evidence by independent fingerprint expert should be admitted. LEGISLATION CITED : Crimes Act 1900 ss 61J, 61J(1), 61L, 61N(2), 61P Azzopardi v The Queen (2001) 75 ALJR 931 Bromley v The Queen (1986) 161 CLR 315 Carr v The Queen (1988) 165 CLR 314 Craig v The King (1933) 49 CLR 429 Gallagher v The Queen (1985-86) 160 CLR 371 Green v The King (1939) 61 CLR 167 Jago v District Court (NSW) (1989) 168 CLR 23 CASES CITED: Longman v The Queen (1989) 168 CLR 79 Moreshead v Police [1999] SASC 162 (16/4/99) Parker v The King (1912) 14 CLR 681 R v Baartman [2000] NSWCCA 298 R v Castleton (1909) 3 Cr App R 74 R v McIntee (1985) 38 SASR 432 R v Peel (1999) 2 Qd R 400 R v Richards [2002] NSWCCA 38 Weissensteiner v the Queen (1993) 178 CLR 217 DECISION : Appeal dismissed.
IN THE COURT OF CRIMINAL APPEAL 60806/00
MASON P HIDDEN J CARRUTHERS AJ
Monday, 1 July 2002 REGINA v SMR Judgment 1 MASON P: I agree with Carruthers AJ. 2 HIDDEN J: I agree with Carruthers AJ. 3 CARRUTHERS AJ: SMR appeals against his conviction on 16 October 2000 at the Griffith District Court on five sexual offences. 4 The appellant was arraigned before her Honour Judge Latham and a jury of twelve at the Griffith District Court on 12 October 2000 upon an indictment which contained five counts. The appellant pleaded not guilty to each count and on 16 October the jury returned verdicts of guilty on each count. 5 The first count was an act of indecency towards a person above the age of sixteen years pursuant to s 61N(2) of the Crimes Act 1900 (hereinafter the Act). The second count was one of indecent assault pursuant to s 61L of the Act; the third and fourth counts were attempts to have sexual intercourse without consent, in circumstances of aggravation, namely by threatening to inflict actual bodily harm upon the complainant by means of an offensive weapon pursuant to ss 61P and 61J(1) of the Act; the fifth count was one of sexual intercourse in circumstances of aggravation by threatening to inflict actual bodily harm pursuant to s 61J(1) of the Act. 6 On 11 December 2000 her Honour sentenced the appellant to a fixed term of twelve months imprisonment commencing on 16 October 2000 in relation to the first count; a fixed term of two years imprisonment commencing on 16 October 2000 with respect to the second count; fixed terms of three years imprisonment commencing on 16 October to be served concurrently in relation to the third and fourth counts and imprisonment for eight years commencing on 16 October 2000 in relation to the fifth count with a non-parole period of four years to date from 16 October 2000 and to expire on 15 October 2004 to be served in a juvenile detention facility. The appellant does not seek leave to appeal against sentence. 7 The appellant was born on 21 April 1981 and was accordingly nineteen years of age at the date of trial and sentence. Each of the offences was alleged to have been committed on 9 August 1998 when he was seventeen years of age. 8 Ten grounds of appeal were filed. However, grounds 2 and 10 have been abandoned. 9 The relevant facts may be summarised for present purposes as follows: the complainant was Olive Victoria Hutchins, who in August 1998 was aged eighty-two years and living in a unit in Legacy Units at MacAuley Street, Deniliquin. On the evening of Saturday, 8 August 1998 she went to sleep, having read until about 11 pm. The book she was reading was entitled "Solo" by Jack Higgins and had been borrowed by the complainant from the Central Murray Regional Library located in Napier Street, Deniliquin on the previous Thursday. 10 In the early hours of the morning of 9 August, she heard noises in her unit which caused her to wake up. She then turned on her bedside lamp and resumed reading the book. About half an hour later she heard more sounds as daylight was breaking and she then saw a male standing at the end of her bed. He was naked except for what she described as a balaclava or beanie which looked like the lower part of a pullover which had just been "cobbled together". It came down to the man's shoulders and it contained two slits for eyeholes. He then produced a knife with a bone handle about six inches long. She said: "Are you the chap that was here twelve months ago?". He replied: "No". He then walked up to the side of her bed with his penis in his hands and said words to the effect, "Put this in your mouth". The complainant replied, "I will not". 11 The intruder then snatched the book out of the complainant's hand and threw it to the other side of the bed. It landed in front of a piece of furniture right underneath the windows. 12 The intruder then put the knife to the complainant's throat and threw the blankets back off the bed. He then threw the knife down on to the floor. He then removed the clothing covering the top half of the complainant's body. The complainant informed him that she had had three heart operations. 13 The intruder then committed the subject offences. 14 The complainant commenced gasping for breath and she asked the intruder to fetch her heart tablets which were in a bottle in the kitchen. The intruder went to the kitchen and returned with the bottle. 15 The complainant took one of the tablets and she was then again assaulted sexually. The intruder then left the bedroom to go to an adjoining room in the apartment and when he returned he was dressed. He then grabbed the complainant by the throat with both hands, squeezing her. The complainant started gasping for breath and tried to break his hold. 16 Having released her neck he then restored her pyjama top and pyjama pants and singlet which he had earlier removed and walked out of the room in the direction of the lounge room. 17 When the intruder returned to the bedroom he was holding the knife and he said: "I'll let you live if you promise not to tell anyone about this or report what has happened". At this stage he had the knife resting on the complainant's throat. 18 He said: "If I hear that you've reported this I'll come and kill you and then I'll search out your children and kill them". He asked her to promise that she would not report the matter and she said, "Yes". He then left the premises. 19 The complainant endeavoured to telephone the police without success and thereupon she rang for an ambulance. When the ambulance officers arrived they rang the police. Shortly thereafter the local police arrived, the complainant gave them a brief report on what had happened to her and she was taken by ambulance to the local hospital. 20 Between 10 am and 10.30 am she was examined by Dr Christina Port. 21 The complainant gave evidence that the intruder's hair was three different shades, "It was black at the back and then it was bright orange and then the front of it looked as if he'd been combing it with water on a comb and that part was much lighter. Lighter than orange. So it was more or less lemon, orange and black." (T 20) 22 She was able to give a description of the intruder's hair because he had removed the makeshift balaclava prior to actually assaulting her. 23 The complainant said she noticed that "he had a dark coloured spot like a freckle on his right shoulder", which was "like a mole only not raised up very much, it was just like a large round freckle". She said it was almost in the middle of the shoulder blade (T 21). 24 The complainant said during the course of her evidence that she kept her eyes shut most of the time because of the knife. When asked about his clothing her best recollection was that he had a pair of jeans but could not say what colour. She thought the intruder was poorly spoken. She said he was of no particular ethnic origin, "Just an Ozzie" (T 36). She said he was about five feet ten inches in height. 25 She was asked in cross-examination whether she could estimate the age of the intruder. She replied: "Well that's rather hard to say --- It was hard to say when he was done up like a clown isn't it. I would say approximately around 23-25 something like that." (T 36) 26 Ms Bronwyn Isabel Chaplin, a member of the library staff at the Deniliquin Library was called by the Crown. She deposed that the appellant had completed a library membership application on 30 August 1994. The records revealed that he had only once borrowed a book from the library and that was on 30 August 1994. The evidence did not disclose the title of the book. 27 The appellant's mother was not a borrower at the library at the date of the offences. She did not become registered until 20 August 1998, which was, of course, subsequent to the alleged offences. 28 No specific history for the borrowing of "Solo" could be produced in evidence as the volume was wiped from the computer records when given to police officers following the assault. However, borrowings prior to 1994 indicated that the volume was popular. 29 It will be necessary to consider Ms Chaplin's evidence in more detail when considering grounds 5 and 6. 30 Senior Constable Gregory Mercer attached to Deniliquin Police gave evidence that about a month after the offence he observed the appellant in Deniliquin and noticed that his hair was different from when he had seen him on prior occasions. He said that "… it had been coloured on top, it was blondish in appearance with dark underneath" (T 82). 31 When asked what was meant by that description he said, "It's like when the, at that particular time a lot of the youths around the Deniliquin area were dyeing their hair on top and just having the shaved section underneath, which was, I suppose, the original colour" (T 82). 32 Detective Senior Sergeant O'Sullivan, a fingerprint expert attached to the Coffs Harbour Crime Scene Unit, gave evidence that he attended the complainant's unit in Deniliquin in 9 August 1998. He carried out an extensive examination of the exterior and interior of the premises for latent fresh fingerprints. There were no fingerprints developed on any of the objects except the book entitled "Solo" by Jack Higgins. On that book two latent fingerprints were developed on the rear cover. 33 At a later time Detective O'Sullivan was provided with a set of inked fingerprint impressions of the appellant. He then conducted a comparative analysis of the fingerprints found on the book with those of the appellant. He concluded that the fingerprints were identical. 34 Both fingerprints were identical, in Detective O'Sullivan's view, with the left thumb impression of the appellant. 35 He stated that the quality of the prints was extremely good and that they were fairly fresh. He estimated that the prints could have been on the book for up to one month. That was a conservative estimate, meaning that one month was the outside limit. 36 No fingerprints were located on any other objects in the bedroom or any part of the unit. 37 The appellant's family moved to Orange, it would appear, towards the end of 1998. On 28 November 1999 Detective Joice, the officer in charge of the case attached to Deniliquin Police, attended the home of the appellant at Orange and put the relevant allegations to him. The appellant replied, "Don't know her and don't know nothing about it". When the appellant was placed under arrest he said, "… this is bullshit, I didn't do it" (T 92). The appellant was taken to Orange Police Station and agreed to be interviewed by way of ERISP. The appellant denied the allegations put to him in the interview. 38 The following questions and answers in the ERISP are of relevance: "Q44 What about reading, did you enjoy reading and things like that. A. No. Q45 Were you a member of the library? A. No. Q46 So you're not a, you don't visit the library to borrow books or anything?"
And later: "Q89 … I think I asked you earlier about your reading --- A. Mm. Q89 --- and you said that you, you didn't do a lot of reading. A. No. Q90 Have you ever heard of the book Solo> A (NO AUDIBLE REPLY) Q91 You've never read it? A No. I only used to read at school and that was just school books. Q92 Right. What about Library books? A Well, probably stuff like, you know, UFOs and stuff, I was, probably read at school books in libraries and that. Q93 But that's the school library, not the town library? A No, I've never been there. Well, I've been there to go on the computers. Q94 Right. When was the last time you were at the library? A I don't know, probably about two, three years ago. Q95 And you didn't make a habit of looking through books while you were at the library? A No, I just went there to type on their computers." 39 The appellant was asked if he would consent to the holding of an identification parade and he agreed. One was not held. Detective Joice stated that the reasons for that were that there was a significant change in appearance of the appellant from the time of the offences to the time when he was arrested. There was also a problem in that the complainant, because of her age, had difficulty in travelling and held fears of confronting her alleged attacker. Detective Joice took a number of photographs of the appellant's chest and shoulders. These photographs demonstrated that at the time of the photograph the appellant did not have a mole or freckle on his shoulder blade as described by the complainant. 40 The appellant called no evidence at the trial and did not give evidence himself. In his address to the jury, Mr Rolfe for the appellant relied upon the denials in the ERISP. No redirections were sought by either party at the conclusion of the summing-up. 41 The jury retired at 3 pm on 16 October. After the jury had retired her Honour received a question from the jury in the following terms: "Your Honour in your summing-up you listed six points of importance in identification. The jury would like to see a list of these six points either on paper or tape." 42 With the consent of the parties her Honour then downloaded from the court reporter's tape that part of her summing-up in which she dealt with identification, as part of her directions upon the circumstantial evidence upon which the Crown relied. 43 It was common ground, however, that what the jury was seeking was a repetition of the aspects of the evidence which the Crown relied upon in combination to support its case of circumstantial evidence. There were in fact eight such points. 44 However, by agreement, the jury was not provided with a copy of those directions but the legal representatives drafted a document in answer to the jury's question. This document sets out in summary form the specific circumstances relied upon by the Crown and the responses by the appellant. I set that document out verbatim: "Now let me deal with the circumstantial evidence in this case. The circumstances relied upon by the Crown are: · Mrs Hutchens description of her assailant. · Det Mercer's description of the accused when he saw him on 12/9/98. · Mrs Hutchens description of the assailant's actions in snatching the book from her hands and throwing it to the side of the room. · The fact that the accused's thumbprint was found on the book (Ex ..) which Mrs Hutchens was reading at the time; that print could not in the opinion of Mr Sullivan have been on the book for more than one month as at 9/8/98. · Mrs Hutchens evidence that she went to the library every Thursday to change her library books (9/8/98 being a Sunday) · The library records (Ex J) and the evidence of Ms Chapman which establishes that the accused last borrowed a book on 31/8/94 and that between 22/11/94 and 18/8/98 no books were borrowed by the accused or any member of his family. · Ms Chapman's evidence that it was the library practice to clean and re-cover library books, and that the book 'Solo' was a frequently borrowed book. · The accused's answers in the record of interview to the effect that he did not go to the local library to read books and that the last time he had been there was about 2-3 years before November 1999." The Crown seeks to prove that it was the accused who assaulted Mrs Hutchens by the combination of these circumstances or pieces of evidence. You should look at all of these circumstances together when you are considering whether you are satisfied that it was the accused; one of them in isolation may not be sufficient to satisfy you to that standard but it is the combination upon which the Crown relies. As to these circumstances, the accused says the following: Orange/lemon as opposed to blonde; practice of youths at that time to dye top of hair. Accused was 17 at time of assault not 23-25. 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 Hutchen's premises, that is sometime before it was borrowed by Mrs Hutchens. If you came to the view that such an explanation was a reasonable one, then it would follow that you would have to acquit the accused of all charges." 45 After a short adjournment the jury returned with their verdicts of guilty. 46 There was no issue at the trial as to the fact that Mrs Hutchins had been assaulted in the way in which she claimed. The ultimate issue left for the jury's resolution was whether the Crown had proved beyond reasonable doubt that the offender was the appellant. No challenge was made by the solicitor for the appellant at the trial to the reliability or veracity of any witness. 47 It is convenient to deal with the grounds of appeal in the order and in the manner in which they were argued. I turn then firstly to grounds 5 and 6 which were argued together. They are in the following terms: "5. A miscarriage of justice occurred in that the trial judge misdirected the jury as to the effect of the evidence relating to the cleaning and recovering of books borrowed from the Deniliquin Library (p 11 SU). 6. A miscarriage of justice occurred in that the trial judge failed to accurately refer to the nature and effect of evidence given by Bronwyn Isabel Chaplin concerning the records and conduct of Deniliquin Library." 48 By way of introduction it should be noted that the unchallenged evidence which went to the jury was that neither the appellant nor the members of his family with whom he lived, had borrowed any book from the Deniliquin Library between 22 November 1994 (when the appellant's brother borrowed a book) and 18 August 1998 (when the appellant's mother became a registered borrower at the library). It necessarily follows (to state the obvious) that over that period neither the appellant nor any member of his family borrowed the book "Solo". 49 Further, according to the unchallenged evidence of Detective O'Sullivan, the appellant's thumb prints could not have been placed on the book "Solo" more than one month prior to 9 August 1998, the date of the offences. 50 Notwithstanding this unchallenged evidence, it is said that a critical issue for the jury to determine was whether there was a reasonable possibility that the fingerprints could have been innocently placed on the book prior to the offences. 51 I quote hereunder the fourth to seventh circumstance relied upon by the Crown in its case on circumstantial evidence as summarised by her Honour (SU pp 10-11): Fourthly, the fact that the accused's thumb print was found on the book which Mrs Hutchins was reading at the time and that the print could not, in the opinion of Mr Sullivan, the fingerprint expert, have been on the book for more than one month as at 9 August 1998. You will have the photographs which demonstrate where precisely on the book the thumb print was located. Fifthly, Mrs Hutchins' evidence that she went to the library every Thursday to change her library books, 9 August 1998 being a Sunday, so she had, the Crown says, by a matter of inference picked up the book Solo, the Thursday prior to the Sunday 9 August. Sixthly, the library records and the evidence of Mrs Chapman (sic) which establishes that the accused last borrowed a book on 31 August 1994 and that between 22 November 1994 and 18 August 1998 no books were borrowed by the accused or any member of his family from that library. Seventhly, Mrs Chapman's (sic) evidence that it was the library practice to clean and recover the library books and that the book Solo was a frequently borrowed book, and lastly the accused's answers in the record of interview to the effect that he did not go to the local library to read books, and that the last time he had been there was about two to three years before November 1999." 52 With regard to ground of appeal 5, it was argued that the summary of the seventh circumstance did not accurately summarise Ms Chaplin's evidence. 53 I turn then to the relevant parts of Ms Chaplin's evidence. "Q. Are you able to say in view of the entries that appear on the card at the beginning of the book, the pocket at the beginning of the book as to whether or not this is a frequently requested book? A. It is a frequently borrowed book. Q. In fact you have a number of Jack Higgins titles in the library? A. Yes we have. Q. Again is it fair to say that he is a popular author? A. It's very fair to say that. Q. In relation to the books which are used a lot, what type of maintenance is kept on these books? A. If library book comes back and it's dirty or dusty, which often happens, we would use either the wipes that are purchased at the grocery store and wipe them down or we would take them out the back and just spray them with a bit of Spray 'n' Wipe and wipe that off. Q. When you say Spray 'n' Wipe, that being a detergent of sorts? A. Yes, a kitchen detergent spray bottle product. And if the cover was wrecked, like this one is now , it would have to be recovered and we have recoverers that work every - volunteers that work every Monday morning and they recover books and cover new ones for Monday mornings." (T 61) 54 Counsel for the appellant focussed particularly upon the words italicised above "if the cover was wrecked, like this one is now", which was of course, a reference to "Solo". 55 It was submitted that this evidence pointed to the fact that there was no reason to suppose the subject book had been recovered recently (or at all) because its condition suggested an old "wrecked" cover. Further, it was submitted, there was no evidence from which to draw a conclusion that the book had ever been wiped. 56 It was submitted that the direction by her Honour that there was a "practice to clean and recover the library books" was not in fact the evidence. There were in fact contingencies, it was submitted, which might lead to the recovering of a book. The first contingency was that the state of the cover might lead to recovering. By inference the evidence suggested that the book had not been recovered for some considerable time. The second contingency was that the book would be wiped if it was dirty or dusty. There was no evidence to suggest that it had ever occurred with the subject book. Indeed its neglected state might suggest otherwise. 57 In combination these misdirections, it was argued, supported a false conclusion that it was unlikely that there had been contact with the book by the appellant (other than on the morning of the offences) and even if there had been any earlier fingerprints they would have been physically removed by the library "practice". 58 No objection was taken at the trial to the direction which her Honour gave as quoted above. The Crown was perfectly entitled to call evidence of a standing procedure within the library for the cleaning and recovering of books that are in need of such treatment. Every Monday morning volunteers performed this work. The subject book was a frequently borrowed book and would inevitably be subject to frequent scrutiny by the volunteers when it was returned. 59 I am quite unpersuaded that her Honour was under any obligation when referring to this practice or system, however one wishes to describe it, to subject the evidence to the detailed analysis suggested by counsel for the appellant. The direction, in my view, was a perfectly appropriate one. 60 In my view the submissions do not justify leave being granted by this Court to the appellant to rely upon this ground. 61 I turn then to ground of appeal 6. 62 This ground focuses upon the sixth circumstance outlined in her Honour's direction. Again no objection was taken to this direction at trial. It is argued that the summation of the evidence appears to be incorrect and unduly to favour the prosecution case. 63 Relevantly Ms Chaplin deposed that prior to 25 February 1994 a manual system of membership and borrowing operated. After this date a manual system of application for membership was retained and a computerised system of borrowing was adopted but with intermittent "glitches" when the manual system was resurrected (T 63). 64 When the subject book was released by the library to investigating police officers in January 2000, Ms Chaplin said, "… because we wrote the book off out of the system and cancelled it as one of our stock we have no records on the computer for it" (T 63) 65 Then it was put to her in cross-examination: "So subsequent to 25 February 1994 you were not in a position to say who borrowed this book or how many times it went out other than the fact that it went out a large amount of times, you'd accept that?"
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.
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Regina
SMR
[1999] SASC 162
(2001) 75 ALJR 931
(1986) 161 CLR 315
(1988) 165 CLR 314
(1933) 49 CLR 429
(1939) 61 CLR 167
(1989) 168 CLR 23
(1989) 168 CLR 79
(1912) 14 CLR 681
(1985) 38 SASR 432
(1999) 2 Qd R 400
(1993) 178 CLR 217
Appeal dismissed. The court refused leave to rely on the grounds discussed and did not need to decide whether the independent fingerprint evidence satisfied the threshold requirement of being fresh evidence, because it would not reasonably have led to a different verdict even if admitted ([135], [147], [150]–[151]).