Black v The Queen

[2013] NSWCCA 183

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Black v R [2013] NSWCCA 183
Hearing dates:	25 June 2013
Decision date:	06 August 2013
Before:	Basten JA at [1] R A Hulme J at [2] Garling J at [118]
Decision:	Leave to appeal against conviction refused
Catchwords:	CRIMINAL LAW - appeal - convictions for sexual offences - whether verdicts were unreasonable and unsupported by the evidence - no question of principle
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW)
Cases Cited:	Jones v R [1997] HCA 56; 191 CLR 439 Lee, Do Young v Regina [2013] NSWCCA 68 M v R (1994) 181 CLR 487 MFA v R [2002] HCA 53; 213 CLR 606 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 SKA v R [2011] HCA 13; 243 CLR 400
Category:	Principal judgment
Parties:	Stephen Stanley Black Regina
Representation:	Counsel: Applicant in person Ms T Smith (Crown) Solicitors: Solicitor for Public Prosecutions
File Number(s):	2007/7395
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2008-12-11 00:00:00 Before: Coolahan DCJ File Number(s): 2007/7395

Judgment

1. BASTEN JA: I agree with R A Hulme J that the present application is to be understood as a challenge to the jury verdict on the ground that it was unreasonable, or could not be supported, having regard to the evidence: Criminal Appeal Act 1912 (NSW), s 6(1). Having considered all of the matters raised by the applicant, including the transcript of the text messages which was not in evidence (but is referred to by R A Hulme J), in accordance with the principles identified in Lee, Do Young v Regina [2013] NSWCCA 68 at [196]-[210], I agree with R A Hulme J that the application should be dismissed.

1. R A HULME J: Mr Stephen Black ("the applicant") was arraigned on 26 May 2008 before Coolahan DCJ and entered pleas of not guilty to four counts of aggravated sexual assault (s 61J of the Crimes Act 1900 (NSW)), two counts of indecent assault (s 61L), one count of inciting an act of indecency (s 61N(2)) and one count of larceny (s 117).

1. On 13 June 2008, a jury returned verdicts of guilty for each of the sexual offences and a verdict of not guilty for the larceny offence. The applicant was sentenced on 11 December 2008.

1. An application for leave to appeal against conviction and sentence was filed on 19 September 2011. There was some confusion at the hearing about whether an extension of time to apply for leave to appeal was required. It has since been found that the Registrar of the Court extended time until 30 October 2011.

1. The applicant appeared in person in respect of his application for leave to appeal against conviction. He informed the Court that consideration is being given by Legal Aid New South Wales to the proposed appeal against sentence. It would seem his case is among those that are being reviewed in the light of the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. While it is undesirable that there be separate hearings in relation to conviction and sentence, in the circumstances it seems appropriate to proceed to determine the conviction aspect of the proceedings.

1. The Notice of Application for Leave to Appeal identifies seven "Points of Appeal". Written submissions, which were prepared with some legal assistance, were filed by the applicant on 11 December 2012. They include the following overriding assertion:

The grounds for this appeal against conviction are that when viewed collectively, the inconsistencies in the victim's testimony, a lack of any substantial DNA evidence and certain factual errors contained in other evidence presented at trial is such that the verdict of the jury in respect of the offences upon which I was convicted is unreasonable or cannot be reasonably supported.

1. The "grounds" addressed in the written submissions do not conform with the "points of appeal" identified in the Notice of Application for Leave to Appeal. I have combined and reformulated the contentions in both documents into a number of topics. I accept the characterisation in the written submissions for the respondent that they should be regarded as particulars of an overall assertion that the verdicts of the jury are unreasonable, or cannot be supported, having regard to the evidence: s 6(1) of the Criminal Appeal Act 1912 (NSW).

Overview of the competing cases at trial

1. The applicant and the complainant were mature single adults who lived in separate houses in Orange. They met in January 2005 at a social gathering at the home of the complainant's neighbours and struck up a friendship.

1. The prosecution case was that they were platonic friends, but the applicant desired a romantic relationship. A letter that he gave to her on 28 February 2006 (Exhibit A) demonstrated that he wanted a romantic relationship but that she was not interested. In the early hours of the morning of 6 March 2006, the applicant broke into the complainant's home, threatened her with a knife and sexually assaulted her multiple times. Shortly afterwards, the complainant rang her boyfriend and told him what had happened and he advised her to go to the police. She attended the police station and was later examined at hospital. DNA material consistent with the DNA profile of the applicant was found on an item in the complainant's bedroom. The applicant's alternative characterisation of the relationship and explanation for the presence of his DNA was disputed.

1. An important feature of the prosecution case was that there was no definitive assertion by the complainant that the applicant was her assailant. It was dark in the bedroom and she did not see him clearly. However, based primarily on certain things that the assailant said, she believed that he was the applicant. For this reason, the prosecution case relied significantly upon circumstantial evidence.

1. The defence case was that the applicant and the complainant commenced a sexual relationship about a month after they met, however she kept the relationship a secret from her friends and family. He did not break into her house or sexually assault her on 6 March 2006. His DNA was found in her bedroom because he had sexual intercourse with her on the night of 3 March 2006 and he had been there on other occasions as well. The complainant was not a truthful and reliable witness. Her assertion that the assailant was the applicant was incorrect. In his closing address to the jury the applicant's counsel submitted that the questions for the jury to determine were (a) whether there was an intruder in the complainant's home on 6 March 2006; (b) if so, whether that intruder sexually assaulted her and stole her money; and (c) whether that intruder was the applicant.

Detailed review of the prosecution case

1. The complainant gave evidence that a friendship developed after meeting the applicant at her neighbour's home, about 12 months before the attack. They came to see each other three or four times a week, mainly when he would accompany her when she walked her dog. They went on social outings together to shows, concerts and the like. The applicant bought her presents and lent her money. One loan was to enable her to retrieve something she had on lay-by at K-Mart. On occasions he questioned her about other men being interested in her; he accused her of sleeping with other men.

1. The complainant made it clear that she wanted only friendship whereas he indicated that he wanted more. He never said that he loved her but he did indicate that he wanted a sexual relationship. There were two occasions when he inappropriately touched her and she rebuffed him: at a concert at the Ex-Servicemen's Club in Orange in March 2005 and at the applicant's home on Christmas Day in 2005.

1. The complainant's evidence was to the effect that she began to lose enthusiasm for the friendship around Christmas 2005. Phone records indicated that they had regular contact in 2005 but this tapered off around or after Christmas. She said she was "distancing herself from him". She said that she made a few calls to him in January or February 2006 asking him not to ring her. She said this to him in person as well (AB 440). In about February 2006, she had told him not to come to her house anymore and to stop leaving messages on her phone; she wanted to be left alone (AB 419).

1. On 26 January 2006, the complainant met a man with whom she commenced a relationship. To preserve the anonymity of the complainant I will refer to him as "Paul".

1. On Tuesday 28 February 2006, the applicant went to the complainant's home. He had an envelope in his hand and told her that he had not expected her to be home. She was on her way to an appointment and told him that she did not have time to talk. When she returned later she found an envelope at the front door. She took it inside but did not open it until the following evening. The letter became Exhibit A in the trial and was relied upon by the prosecutor in arguing that the relationship between the pair was in fact as the complainant had described, and not how the applicant sought to portray it. The letter, which need not be reproduced here, was a lengthy statement of unrequited love.

1. Paul came to the complainant's home on 28 February 2006. He stayed overnight and was there late in the afternoon of 1 March when the applicant came to the front door. The complainant answered the door and the applicant said in an angry tone, "Why did you do this to me" and "You've led me on". She told him to leave and shut the door. The following day, Thursday 2 March, the applicant left a voicemail message apologising for his behaviour.

1. On Friday 3 March, the complainant worked until 4.00pm, then did some shopping and went home. She denied seeing the applicant that day and denied his account that he came to her home and had sexual intercourse with her.

1. There was nothing eventful about Sunday 5 March. But in the early hours of the morning of Monday 6 March, the complainant was woken and saw a dark shadow in her bedroom. A man put a knife to her throat and said, "don't scream or I'll fucking kill you". He thereafter sexually assaulted her in a variety of ways that constituted the various counts in the indictment. In short, there was digital penetration of her vagina, vaginal intercourse, an indecent assault constituted by biting her left breast, anal intercourse, the incitement of an act of indecency by having her take hold of his penis, vaginal intercourse again, and another indecent assault by placing a vibrator against her vagina.

1. During the course of all of this the assailant said various things which were of significance to the prosecution contention that he was the applicant. The following table sets out some of those things and refers to evidence relating to them:

"How many people have you slept with?"	The complainant said that the applicant had questioned her about other men sleeping with her.
"You were married once so you must have slept with him".	The applicant's evidence was that the complainant had told him she had previously been married.
"Steve's got to go to court today and it's all your fault".	Steve was the applicant's name. Detective McLean said that when he spoke to the applicant on the morning of 6 March he said that he had to go to court that day.
"Maybe I could sleep with your son's girlfriends [sic], she's got a good set of jugs".	The accused had met the complainant's son and his girlfriend. The girlfriend gave evidence. The prosecutor referred to her in his closing address as "a well developed young lady".
"The woman that stays with you when you have TAFE do you open the door and watch her having a shower".	Barbara Merrick-Bassett was doing a weekend course with the complainant at TAFE. As she lived on the other side of Bathurst she used to stay with the complainant on those weekends. The applicant had met Ms Merrick-Bassett on such occasions.

1. The complainant said that by this stage she thought the man was the applicant. This was because of his voice and what he was saying: things he knew about her and her general activities. There was anger, bitterness and resentment in his voice. It sounded like he was trying to disguise his voice by making it deeper. She said, "He was trying to disguise his voice and it was like he was there on behalf of Steve, it was like he was pretending to be there on his behalf" (AB 443). There was also the fact that he slipped sometimes from referring to "Steve" or "he" to "I". Another factor was that he was sweating a lot; while on top of her his sweat was dripping onto her face and chest. (The complainant said that on another occasion she had observed that the applicant sweated "quite profusely" and the applicant himself agreed that he did sweat a lot "if it's a hot day".) There was also the fact that his chest was hairy. (The applicant agreed he had a hairy chest.) She did not want to confront him with her recognition because she was scared that he was going to stab her with the knife.

1. Other things the assailant said that supported the complainant's belief that he was the applicant were:

"Why did you take him down to meet your father?"	It was common ground that there was an occasion when the complainant and the applicant went down to Cootamundra where he met her father.
"You're going to ring Steve today. You're going to invite him around for tea tonight. You're going to have sex with him tonight."	An unlikely thing for someone other than the applicant to have said.
"When youse are together you're not going to make any more lay-bys and you're going to start paying for things."	The applicant had lent the complainant money to enable her to retrieve an item she had on lay-by.

1. The complainant's evidence was that she had purchased a vibrator in October 2005 when she was with a girlfriend and it was bought as a joke. She had never used it; it was still in its original packaging and was on the bedroom floor. Prior to this, the applicant had asked her whether she had one. She had told him that she did not, which at that time was the case.

1. Towards the end of the incident the assailant said, "Oh look what we have found here on the floor ... I thought you didn't have one, I thought you didn't use one". She said she then felt something being shoved between her legs; it was her vibrator.

1. The complainant's mobile phone was on a bedside table. The relevance of this will emerge later in a discussion of one of the applicant's contentions.

1. At the end of the assault the assailant threatened that he would come back and kill the complainant if she reported the matter to the police. He left and she heard the front door shut. She went to the bathroom, put a dress on and returned to the bedroom where she looked for her mobile phone which had been on a bedside table. She could not find it. She went to the kitchen to get her handbag and car keys and found her phone on the bench. She left via the front door and noticed that the sensor light did not come on; it should have because the switch inside the front door was always left on. (The applicant agreed that he knew the location of the sensor light switch.)

1. She drove away from her home and then stopped and called Paul. She told him that she had been raped by the applicant. He implored her to go to the police station. She did so. She told one officer, and then another, that it was the applicant who had raped her. She was examined at the hospital by Dr Howe and swabs were taken. When she was asked for her Medicare card she looked in her wallet and saw that there was $220 missing (this was the subject of the larceny count for which the jury returned a verdict of not guilty).

1. Cross-examination of the complainant raised two matters where her account was in conflict with that of witnesses beyond just the applicant. One matter concerned events on Christmas Day 2005 where her recollection was inconsistent with that of the applicant, his stepson and the then girlfriend of her son. The other matter concerned an occasion when the applicant and two witnesses, Craig and Bernadette Daniels, said that the complainant and the applicant went to the Daniels' home in Kelso for dinner and ended up staying the night and sharing a bed. The complainant was adamant in denying such an occasion. I will say more about those two matters when dealing with the applicant's arguments on the application. Otherwise the cross-examination did not yield any concessions or expose any matters that significantly damaged her credibility.

1. Dr Howe said he examined the complainant at about 6.40am on 6 March 2006. Amongst other things he observed redness on the side of her neck and he also saw some redness around the posterior fourchette and the anus. The latter were consistent with "some vaginal trauma or penetration" and "some trauma or penetration of the anus" (AB 511). There were minor abrasions on the right arm that the complainant attributed to her dog. Dr Howe observed that the complainant was tearful and upset during the examination but speaking rationally and coherently. She gave him a history which was generally consistent with the evidence she gave before the jury, although for understandable reasons it was nowhere near as detailed.

1. Paul gave evidence which was consistent with that of the complainant. He confirmed her account of the applicant coming to her home on 28 February 2006 when Paul was inside. He heard a man outside the front of the house say, "I suppose you're sleeping with him too are you?"

1. Paul said that he received a call from the complainant at about 3.40am on 6 March. (It was in fact 3.35am according to telephone records (Exhibit J).) She told him, "I woke up and he was standing there, he had a knife, he grabbed me". He asked if she was alright and she replied, "It was Stephen, I know it was by the things he said" (AB 471).

1. Paul said that he saw the complainant at Orange police station. She was distraught. She accompanied him back to his home in Sydney. The next morning he saw bruises on the tops of her arms and "like real fine cut lines" on both her arms.

1. Constable Stacey Evans spoke to the complainant when she came to the police station at about 3.40am. She said the complainant was crying and shaking and said, "I've just been sexually assaulted, he broke into my house and I know who did it". She was taken to a waiting room where she was asked what happened. The complainant said:

"It was Stephen Black. We were friends but I told him a couple of weeks ago that I didn't want to be friends with him. He had a knife and he must have a key. ... He held a knife to me and I know it was him but he was speaking like it wasn't and that he was there for Stephen but he slipped up a couple of times, like when he was saying Stephen he said "I" a couple of times."

...

"I met him through a neighbour and known him about 12 months and we've only been friends, nothing more. A couple of weeks ago I told him I didn't want to see him anymore even as friends because he was scaring me and saying stuff like, 'People are looking at you and they want to have sex with you'. He still calls 12 to 14 times a day." (AB 477)

1. Constable Evans asked the complainant whether she knew how the assailant got in and she replied, "No. I saw my glass sliding door open, the front door was locked but the deadlock was unlocked".

1. Detective Sergeant Andrew McLean was recalled to duty and spoke to the complainant. He described her as "probably bordering on being hysterical, extremely distraught, carrying, shaking and very emotional". Her account was in terms consistent with what she had said in her evidence and with what she had told Constable Evans. It included that the assailant had said, "Isn't Steve good enough for you? He bent over backwards for you and you threw him aside".

1. Detective McLean went to the complainant's home to make a cursory examination. He found that a rear sliding door was "very loose". When he tried that door a piece of metal broke off. He said, "I believe it was the latch inside the actual door frame that hooks onto the striking plate on the door frame". He did not detect any sign of forced entry to the home.

1. Detective McLean then went to the applicant's home at about 6.45am. The applicant was told of the sexual assault and that the complainant believed he was responsible. He replied, "What? That's ridiculous". After he was placed under arrest and cautioned he said, "Yeah but I didn't do it I have [sic - haven't?] seen or spoken to her for weeks".

1. The applicant was taken to the police station where he exercised his right to silence. A buccal swab was taken and he was released from custody pending DNA analysis of the swab.

1. Detective McLean caused a fingerprint expert to attend the complainant's home. It was reported to him that no "identifiable fingerprints" were found; meaning that there were fingerprints but that they could not be identified because of their condition.

1. Inquiries were made at Mudgee Hospital and records were produced to confirm that the applicant had undergone a vasectomy in 1988. This is relevant to the finding of no sperm in the semen detected in the high vaginal swab taken from the complainant.

1. Senior Constable Brett Sansom made a detailed examination of the crime scene. He noticed the damage to the rear sliding door and considered it to have been the point of entry. He was unaware that damage had been caused earlier in the morning when Detective McLean had entered the home. Various swabs were taken for the purpose of DNA analysis.

1. The rear sliding door led to a small sunroom that was enclosed and had a screen door. The screen door had a locking device but the officer agreed in cross-examination that it "wasn't a very secure sort of door" (AB 547). The sliding door itself had the usual type of locking device but also had a bolt at the top. He could see that in photographs shown to him by defence counsel but said that he had not noticed it during his examination at the scene (AB 549).

1. The woman who had been the girlfriend of the complainant's son ("Hayley") gave evidence. She had met the applicant at the complainant's home in March 2005. On subsequent occasions when she had seen the applicant he told her that he liked the complainant. A couple of weeks before 6 March 2006 he spoke with Hayley and told her that he did not understand why the complainant did not want to sleep with him. He asked, "how could I win her heart over?" He also commented about buying her presents but that she never bought him presents in return.

1. Hayley said that on all of the occasions she saw the complainant and the applicant together there was never anything more than friendship. They never touched, kissed or held hands.

1. The complainant's former neighbours, Terrence and Lynne Hazzard, gave evidence about the applicant meeting her at a social gathering at their home in early 2005. They also gave evidence of their subsequent observations of the pair and of things the applicant said about the relationship; it was generally to the effect that there was a friendship only, but that the applicant had wanted more.

1. The applicant arrived at the Hazzard home in the late afternoon of 6 March 2006. He told them of having been spoken to by police about the rape of the complainant. He spoke of having had sexual intercourse with the complainant the previous Friday (3 March) and expressed concern that his DNA might be found. Mr Hazzard asked him where he had been last night and he said that he was at home watching movies.

1. Ms Jenina Moore, the applicant's next door neighbour, was made available by the prosecutor for cross-examination. She agreed that she had said in her police statement that at 3.26am on 6 March 2006 she had noticed the headlights of a car coming into the applicant's driveway. She thought the car looked like one that belonged to the applicant's daughter. A short time later she noticed the front lights on at the applicant's house.

1. The applicant's stepson, Warrick Cromie, gave evidence that he saw his father's car in Summer Street, Orange (the main street) at around 6.30pm on 3 March 2006. In cross-examination he said it could have been earlier, between 5.30 and 6.30pm.

1. Mr Cromie gave evidence about the events of Christmas Day 2005. I will say more about it later.

1. Mr Cromie also gave evidence that was relevant to the observations made by Ms Moore, the neighbour. He was at the applicant's home on the night of 5/6 March 2006. He said the applicant went to bed at about midnight. Mr Cromie went to bed a short time later but set his alarm for 2.45am when he went out to visit a friend, Nathan Gates. He returned at about 3.30am, driving into the driveway with headlights on. His car was not of the same type as that which the applicant's daughter owned but they were both small and white. Mr Cromie said that he left to go home at about 5.00 or 5.30am but put his head in the door of the applicant's bedroom to say goodbye and saw he was there, asleep.

1. The prosecutor was granted leave to cross-examine Mr Cromie pursuant to s 38 of the Evidence Act 1995 (NSW). He was challenged as to his claim to have visited Nathan Gates. He said they just spoke about things they had done on the weekend and also about something to do with Mr Cromie's computer because Mr Gates used to fix it for him. Mr Cromie agreed that he did not see the applicant from midnight until between 5.00 and 5.30am.

1. Nathan Gates, Mr Cromie's friend gave evidence that Mr Cromie visited him in the early hours on a couple of occasions, although he could not recall whether this occurred on 6 March 2006.

1. Barbara Merrick-Bassett was the woman who attended TAFE with the complainant about one weekend a month and stayed with her on those occasions. Her evidence included that she received a call from the complainant in which she complained of having been raped. The complainant said that it was dark but that, "It was Stephen I could smell him". She also said, "He mentioned your name while he was raping me".

1. Ms Sharon Neville, a forensic biologist, gave evidence about the DNA analysis of items recovered from the complainant and her home. This is the subject of one of the contentions raised by the applicant and so I will review the evidence later.

Detailed review of the defence case

1. The applicant gave evidence denying that he was the intruder and denying that he sexually assaulted the complainant.

1. He said that he met the complainant in early 2005 and a friendship developed. The relationship became a sexual one after about a month. However, the complainant did not want anyone to know this. When they were with her friends they portrayed a platonic friendship but when they were with his friends they displayed their feelings more openly.

1. The applicant said that the letter he delivered on 28 February 2006 (Exhibit A) was written by him but his daughter had helped him to compose it.

1. On 1 March 2006, he went to the complainant's home but she would not let him in. He asked if someone was there - "You know, we're supposed to be together, have you got a bloke in there?" He called out, "If you're in there come out" but there was no response so he left. That night the complainant called him; she was crying and apologised for upsetting him. She still wanted to stay friends.

1. On Friday 3 March, he saw the complainant in Summer Street "between 5.30 and 6 o'clock I think from memory". He also said "it was around about between 6.30 and 7.00. I'm not sure of the exact time". She asked how he was and he replied, "All right I sort of met someone else". She responded "Would you like to come back for a drink back to my place because I wanted [sic] to stay friends?" He accepted the invitation. They met at her home. He went inside and they had an orange juice in the lounge room. She went up the hall and returned, wearing just a man's shirt and underpants. She kissed him, straddled him on the lounge; "then things got heated and we ended up in the bedroom" where sexual intercourse occurred. He left "a bit after 8.00, 8.30 approximately" because he had to drive to Dubbo to visit Ms Faye Schinck, his new lady friend.

1. The applicant returned to Orange on the Sunday (5 March). His son was there. He went to bed at midnight. His son woke him as he was leaving at about 5.00am. He got up about 15 minutes later and got ready because he had to go to court that day. Shortly after that the police came.

1. Later on 6 March, the applicant went to the home of Terry and Lynne Hazzard. He wanted to talk about the allegation that he had sexually assaulted the complainant. He told Mr Hazzard that he had sex with her the previous Friday. A lawyer had told him that DNA takes two to three days to leave the body "and I thought well, you know, I'm going to be in the shit because I was there on the Friday".

1. The applicant gave evidence about other aspects of his relationship with the complainant. He spoke of an occasion when they had stayed overnight at the home of Craig and Bernadette Daniels at Kelso. They slept in the same bed but there was no sex because she was concerned about the noise; the Daniels' bedroom was next door.

1. The applicant denied the conversation with Hayley in which he is said to have asked about winning over the complainant's heart. He said the complainant had told him about buying a vibrator; he saw it when he was in her bedroom on 3 March 2006 and it was on the floor but not in its packaging as she had said. He also gave evidence about buying things such as jewellery for the complainant and about lending her money.

1. The applicant's credibility in relation to a number of aspects was raised during the course of cross-examination.

1. He denied saying to Detective McLean that he had not seen or spoken to the complainant for weeks. He then claimed that the detective had asked whether he knew the complainant and he said he did. The detective then asked "Have you seen her lately?" He had previously been told by lawyers not to admit to anything until you talk to a lawyer so he replied, "No". He agreed that this was a lie.

1. The applicant was challenged about his account of having had sexual intercourse with the complainant on 3 March 2006. He was forced to concede that his recollection of time was, in effect, unreliable when he was confronted with telephone records that showed that the complainant was using her landline in a call to Paul from 5.54pm to 6.30pm. That did not occur while he was at the house. But he maintained that he met her down the street at about 6.15 or 6.30pm, having said elsewhere in his evidence that it was between about 5.30 and 6.00pm or 6.30pm and 7.00pm. He denied that he had made up a story that was tailored to account for the DNA evidence.

1. The applicant was invited to explain some of the things he had said in the letter to the complainant he delivered on 28 February. When he wrote, for instance, "I just wanted to hold you and being held by you but I knew you wouldn't have wanted that", he meant that he was sick of them hiding their relationship. He also claimed that he could not read and got help from someone to write it out and he then copied it.

1. Paul Ross, a good friend of the applicant, gave evidence that he saw him with the complainant at the Cowra Bike and Car Show in early 2005. He said they appeared to be "a fairly happy couple". At one point she sat on his lap; they seemed to be flirtatious.

1. Bernadette and Craig Daniels gave evidence about an occasion in early 2005 when the complainant and applicant came for dinner at their home in Kelso and stayed the night. During the evening the applicant had his arm around the complainant on the lounge. Mr Daniels said they appeared to be like any other normal loving couple; they held hands, cuddled and gave the occasional peck on the cheek. They slept in the same bedroom which was next to the Daniels' bedroom. In cross-examination they were asked what the complainant looked like and neither of them could remember much.

Contentions supporting the ground that the verdicts were unreasonable

Contention: the complainant lied about the events of Christmas Day 2005

1. The complainant attended the applicant's home on Christmas Day in 2005. There were discrepancies in their respective accounts of the circumstances. The applicant contended that the complainant fabricated an assertion that at one point while they were alone in the lounge room he attempted to unbutton her blouse. Her motive in doing so was to support her claim that he had an unrequited sexual desire for her which in turn would support her claim that he sexually assaulted her on 6 March 2006.

1. The complainant's account was that she had lunch elsewhere and went to the applicant's home after. It was after his daughters had left that he sat beside her on the lounge and "he was trying to unbutton my blouse and I got really annoyed [and] told him to stop and I got up and left" (AB 386). In cross-examination she said that by Christmas she was "distancing myself from him" (AB 444).

1. The applicant's account of what occurred at his home on this day was put to the complainant in cross-examination. She disputed that the applicant's daughter was not present but that his stepson and granddaughter were. She also disputed that she had arrived at the home in the company of her son and his girlfriend and that they had travelled in her son's car. (AB 432-433). The applicant gave evidence in accordance with that version. He said that the complainant, her son and his girlfriend arrived between 10.00 and 10.30am; they stayed for lunch and left together at about 3.00pm.

1. Hayley, who was the girlfriend of the complainant's son at the time, agreed in cross-examination that the applicant's account as summarised above was correct. She also agreed that when they left in the afternoon, the applicant and the complainant "were on good terms" (AB 503).

1. The applicant's stepson was cross-examined by the applicant's counsel about this occasion and his account was consistent with that of the applicant (AB 526-528).

1. A theme of the closing address to the jury by the applicant's counsel was that the complainant was "not a truthful, honest or accurate witness" (AB 767). He submitted that in the face of the evidence of the applicant and other witnesses, the jury would find that the complainant had lied about the events of Christmas 2005 and that she had done so to support her contention that by this time she was "distancing herself" from the applicant. The Crown Prosecutor submitted that the jury would accept that the complainant was mistaken in her evidence about this occasion but that it did not detract from the credibility of her account of more significant events (AB 784).

1. In my view, it is unlikely that the jury would have regarded this topic as significant in their assessment of the complainant's testimony about critical matters; nor should they have. There were far more significant matters pointing to the correctness of the complainant's description of the relationship; for example, the letter (Exhibit A).

Contention: the DNA and fingerprint evidence was consistent with innocence

1. Semen was detected on the high vaginal swab but no sperm was found. For this reason, the Division of Analytical Laboratories did not carry out any DNA testing. Ms Sharon Neville, forensic biologist, explained that with the absence of sperm, the chance of getting a DNA profile of the man who was the source of the semen was too low. One of a number reasons why there might not be sperm was if the man had undergone a vasectomy (which the applicant had).

1. There was a new testing procedure (Y-chromosome testing) available that could have been used. For funding reasons such testing was not done routinely. There was also the fact that the expectation of getting a meaningful result in the circumstances of this case was minimal. One of the reasons for that is that there is no statistical calculation that can be made as to the occurrence of any DNA profile that the testing might reveal. Its use is limited to excluding a person if the profiles are inconsistent.

1. Dr Brian McDonald was an expert called in the defence case. It was his opinion that the Y-chromosome testing should have been carried out even if only to see if the applicant was excluded. The applicant does not raise any issue about this aspect of the DNA evidence so no more needs to be said about it.

1. Ms Neville also gave evidence that because of the presence of two components in the semen it was likely that the semen had been deposited within 48 hours of the swab being taken. Dr McDonald said he was not familiar with any studies that can look at the presence of the two components Ms Neville had referred to in order to time when semen had been deposited. So, he said that without further information he doubted that a figure could be given about how long semen had been present when there was no sperm. Again, the applicant does not raise any issue about the evidence on this topic: it was not said to contribute to the unreasonableness of the verdicts.

1. Two DNA profiles consistent with that of the applicant and the complainant were recovered from two human hairs on the vibrator. This was the subject of considerable contest in the evidence of Ms Neville and Dr McDonald (for example, whose DNA was from the hair as opposed to something that was on the hair?). In the end, however, the fact remained that DNA consistent with both individuals was found. The Crown argued that it supported the complainant's account whereas the defence contended that the applicant's DNA could have got there from his previous presence in the bedroom (for example, the vibrator was on the floor and so too may have been his shed hair).

1. The point the applicant sought to make the most of in relation to this part of the evidence was that his DNA was not detected on things that the assailant was said to have touched: the bedside drawer, the door latch, the bed head, and the complainant's mobile phone. It was also not detected on the bed sheets, the pillow cases or the doona cover. The assailant wiped himself on something after he had ejaculated, perhaps on the complainant's nightdress, yet his DNA was not found there either.

1. Ms Neville said that swabs from the bedside drawer, the door latch and the bed head were tested and they revealed a DNA profile consistent with the complainant. There was also trace DNA recovered from the bedside drawer and the bed head but they were too weak to interpret.

1. The bed sheets, pillow cases and doona cover were tested at a later date. The mobile phone was not tested. No semen was detected on the flat bed sheet, the pillow cases or the doona cover. But DNA testing on seminal stained areas of the fitted sheet revealed a profile consistent with Paul; a profile consistent with the complainant; and a male profile too weak to interpret except to say that Paul could be excluded.

1. The applicant submitted that if the assailant was sweating heavily, wiped himself on the nightdress and touched various items as the complainant had described, his DNA would have been found on the majority of the items.

1. The problem with this contention is that the lack of sperm in his semen meant that his DNA would not have been detected from any semen deposits arising from these activities. Further, DNA of unspecified origin was recovered from the bedside drawer, the bed head and the fitted sheet but was too weak to interpret.

1. The applicant also contended that if the vibrator was on the floor but still in its original packaging as the complainant had said, it would be expected that his fingerprints would have been found on the packaging if he had been the assailant. There was no suggestion that the assailant was wearing gloves. This, it was submitted, supported the applicant's claim that he was not present and did not commit the offences.

1. The problems with that submission are, first, that it is not the case that there were no fingerprints found at all. The evidence was that there were no identifiable fingerprints. As Detective McLean explained, there were fingerprints but they could not be identified because of their condition. Secondly, if identifiable fingerprints should have been found, they would at least have included the complainant's; but hers were not found either. So, the fact that the applicant's fingerprints were not found on this, or any other item, is entirely neutral, just like the absence of detection of his DNA profile on anything other than the hairs on the vibrator is neutral.

1. The trial judge told the jury that the DNA evidence was "too inconclusive". That is understandable given that there were competing explanations for how the applicant's DNA may have found its way onto the vibrator. The judge directed that if they were not satisfied beyond reasonable doubt of the applicant's guilt on the basis of all of the other evidence in the case, "the DNA would not be sufficient to get the Crown over the line as it were. You would have to acquit the accused" (AB106).

1. If the DNA evidence was of any significance, it was that there was none found that was inconsistent with anyone other than the complainant, the applicant and Paul. That is, there was no DNA indicating the presence of a fourth person. So, rather than the DNA (and the fingerprint) evidence being consistent with the applicant's innocence, the better view is that whilst it did not establish his guilt, it was not inconsistent with it.

Contention: the complainant lied about cuts on her arm because the cuts were not seen on medical examination

1. The complainant said that on the morning after the assault (Tuesday 7 March) she noticed fine cuts on the top of her left arm. She showed them to Paul. She also said that when she was examined by Dr Howe the previous morning she had a scratch on the top of her right arm which her dog had caused.

1. The applicant submitted that because the cuts on the left arm were not seen by Dr Howe, "it would not be that those fine cuts were suffered and inflicted ... during the alleged assault". Counsel for the applicant had submitted in his closing address to the jury, "She had you believe that as a result of the knife, there were fine cuts on her left upper arm" (AB771).

1. These submissions do not acknowledge that the complainant never said that she suffered those cuts as a result of anything the assailant did to her. The prosecutor should not have led the evidence. He submitted to the jury that there was an inference that the cuts were caused by the knife (AB790). Counsel for the applicant raised no complaint; indeed he attempted to use the evidence to the applicant's advantage by submitting that it derogated from the complainant's credibility.

1. As unmeritorious as the prosecutor's submission was, it is extremely unlikely that the jury would have paid it any attention. The judge reminded the jury that the complainant had not attributed the cuts to the sexual assault (AB49). And in any event, the issue was trivial in the context of there being many more significant matters for the jury to consider.

Contention: the evidence as to the point of entry of the intruder was confusing to the extent that a reasonable jury could not have followed it

1. I have referred earlier to the evidence of Detective McLean and Senior Constable Sansom about what they observed about the rear sliding door and the screen door the sunroom outside that sliding door.

1. The applicant's submissions refer to matters within the statements of Detective McLean and of the complainant. The statements were not before the jury. They do not constitute "fresh" or "new" evidence that may be admitted on appeal.

1. The applicant's point appears to be that the rear sliding door and sunroom screen door could not have been the point of entry for the intruder as Senior Constable Sansom had thought; he not being aware of damage to the sliding door locking mechanism that had occurred earlier when Detective McLean was at the home. This contention is not raised to dispute that the applicant was the intruder. It is raised to dispute the existence of an intruder at all.

1. The complainant told Constable Evans that after the assault she saw that the rear sliding door was open and the front door was closed but not deadlocked.

1. I accept that there was no definitive evidence about how the assailant entered the home. The only evidence about the police examination of the scene that supported the proposition that the applicant was the assailant was that the sensor light at the front of the house had been turned off and there was evidence that the applicant knew where the switch for it was.

1. It must be possible that the complainant had left a door unlocked and was mistaken or had forgotten this, or the applicant through his frequent attendance at the home had contrived a means of surreptitious entry. The evidence was such that this was a matter left to speculation. However, the fact of damage by Detective McLean did not establish that the sliding door could not have been the point of entry or that it had not been forced. It merely established that the evidence was equivocal and the matter was not properly investigated.

1. But the evidence was overwhelming on the question of whether the complainant had been sexually assaulted by an intruder. There is no other sensible explanation for the complainant fleeing her home at around 3.30am, ringing her boyfriend and complaining of being raped, and then going to the police station, again complaining of being raped. She was in a state of considerable distress and still was when she was examined by Dr Howe. He observed redness around the posterior fourchette and anus that he said was consistent with trauma or penetration.

1. Counsel for the applicant at trial has practised in criminal law for a great many years. It is inconceivable that someone with his experience would have overlooked an opportunity to make a submission to the jury that would have advanced his client's interests. But nothing was said in his closing address to the jury about the "point of entry" issue at all. This indicates to me that in the atmosphere of the trial it was of no significance.

1. The applicant also made submissions about photographs that became exhibits in the trial and about what he said were inaccurate descriptions of what they depicted. I have considered what he has said and viewed the photographs. I am satisfied that the point has no relevance to the issues. Again, it is unsurprising that no-one raised any such concern at trial.

Contention: the complainant's evidence was unreliable because there were inconsistencies between what she said in her police statement and what she said in evidence at trial and there were things said by her in evidence at trial which were illogical

1. Statements made by the complainant were not in evidence. For the reason given earlier, they must be disregarded except to the extent that she was cross-examined about them.

1. Other points raised by the applicant in this context are of dubious significance. For example, the complainant was uncertain about whether she stayed with Paul on the night of 6 March 2006 at his home or in his truck (he was a truck driver), whereas he said they stayed at his home. The complainant said that she woke to find a dark shadow, a person, "he was on my right standing next to the bed" whereas Dr Howe recorded that her history included that "she woke up and saw a dark figure next to her in bed". She said that the intruder had a shirt on but the shirt had moved up, whereas Dr Howe had recorded her as having said "he had taken his shirt off".

1. None of these matters are of any real significance and that is consistent with the fact that the applicant's counsel said nothing about them in his closing address.

1. Another matter raised by the applicant was that the complainant said the intruder bit her on the left breast. The applicant's counsel observed in his closing address that she did not say anything about whether there was any mark or injury caused and neither Paul or Dr Howe said anything about it. None of them were asked about it and there was no evidence that any mark or injury should necessarily have been expected.

1. The applicant contended that text messages he received from the complainant were inconsistent with her claim that she was trying to distance herself from him; that she did not want to go to his place on Christmas Day 2005; and that in January or February 2006 she made a few phone calls to him and asked him in person not to call her (AB 387; 440-1; 444).

1. The text messages the applicant referred to had been transcribed and the document was annexure "H" to his written submissions. The applicant conceded that his counsel had taken a decision not to tender the document and the trial transcript bears that out (AB 621; 760). In these circumstances the evidence does not qualify as "fresh" or "new" evidence and could not be admitted on appeal. I have, nevertheless, perused the document and cannot see anything of significance that supports the applicant's case.

Conclusion

1. The principles concerning the determination of a ground of appeal that a verdict of guilty is unreasonable, or cannot be supported, having regard to the evidence, are well known and need not be restated here. The question is whether it was open to the jury, in the sense explained by the High Court of Australia, to conclude beyond reasonable that the applicant was guilty of the various sexual offences charged: M v R (1994) 181 CLR 487 at 493; Jones v R [1997] HCA 56; 191 CLR 439; MFA v R [2002] HCA 53; 213 CLR 606; and SKA v R [2011] HCA 13; 243 CLR 400.

1. I have reviewed the record of the trial and the various contentions raised by the applicant.

1. There was good reason to accept that the relationship between the applicant and the complainant was as she, and not he, described. The letter (Exhibit A) was indicative of this. There was also the evidence of what he had said to Hayley and to Terrence and Lynne Hazzard.

1. As I indicated earlier, the complainant's immediate complaint, her distress, and the injuries noted upon medical examination made it unrealistic to consider that there had not been a sexual assault perpetrated by an intruder as she claimed.

1. There were a number of features of the prosecution's circumstantial case that strongly supported the proposition that the applicant was the intruder. In this connection I have had particular regard to the comments made by the intruder; the intruder's knowledge of the premises (the location of the sensor light switch); the physical attributes of the intruder (hairy chest and profuse sweating); a car arriving at the applicant's home at a time consistent with him having just departed from the complainant's home; the semen recovered in the high vaginal swab being consistent with its source having had a vasectomy as the applicant had; and the presence of the applicant's DNA on the vibrator.

1. The applicant has not suggested that there is anything inconsistent with the jury having found him guilty of the sexual offences but not guilty of the count of larceny. The complainant did not discover what she thought was the missing $220 from her wallet for some hours after her assailant had left and in that time she had been at the police station and the hospital. The judge invited the jury to consider whether the money "might have gone missing" at one or the other of those places. His Honour observed, "there was no real evidence as to her having the purse always in her control from when she left the house until she checked the money at the hospital" (AB33). The judge also acceded to a submission by the applicant's counsel that the jury be directed that they had to be satisfied beyond reasonable doubt that the amount missing was exactly $220.

1. None of the matters raised by the applicant, even in their combined force, are sufficient to cause me to have a reasonable doubt about his guilt. In fact, they are so lacking in merit that I would refuse leave to appeal.

Order

1. I propose that leave to appeal against conviction be refused.

1. GARLING J: I agree with R A Hulme J, for the reasons he gives, that the application for leave to appeal against conviction should be refused.

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Decision last updated: 06 August 2013