R v Almotared

[2011] QCA 128

SUPREME COURT OF QUEENSLAND

CITATION:

R v Almotared [2011] QCA 128

PARTIES:

R
v
ALMOTARED, Koblan Mana
(appellant)

FILE NO/S:

CA No 192 of 2010
DC No 31 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

17 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2011

JUDGES:

Muir and White JJA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of one count of rape, one count of attempted rape and one count of sexual assault – where the complainant described her assailant as having side burns and hair on top of his head – where the appellant did not have head hair – where the complainant was intoxicated at the time of the incident – where the complainant identified the appellant as her assailant whilst giving details to police in the lobby of the apartments where the offence occurred – where CCTV footage showed a male wearing the same shirt as the appellant was wearing when identified by the complainant – where the appellant was staying on the same floor as where the incident was said to have occurred – where DNA evidence taken from the complainant was consistent with the appellant’s – where the appellant argued that the DNA evidence was unreliable – whether the prosecution had proved beyond reasonable doubt that the appellant was the assailant – whether the verdict was reasonable having regard to the evidence

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, considered

COUNSEL:

B Walker SC for the appellant
M J Copley SC for the respondent

SOLICITORS:

Robertson O’Gorman Solicitors for the appellant
Director of Public Prosecutions (Queensland) for the respondent

[1]      MUIR JA:  The appellant was convicted on 16 July 2010 after a trial in the District Court of having raped the complainant (count 1), having attempted to rape the complainant (count 2) and of having unlawfully and indecently assaulted the complainant (count 3).  All offences were alleged to have occurred on 2 December 2007.  The appellant appeals on the ground that the jury’s verdicts were unreasonable.

[2]      Before considering the arguments advanced by counsel for the appellant, it is desirable to say something of the evidence before the jury. 

Introduction

[3]      It was undisputed that the inebriated complainant, who had been sleeping outside The Moorings apartments in Surfers Paradise, was taken by a male unknown to her to a room in the apartments, where he raped her, attempted to rape her and indecently assaulted her.  The central issue for the jury was whether the prosecution had proved beyond reasonable doubt that the appellant was the assailant.

The evidence

[4]      The evidence relied on by the prosecution to identify the appellant as the offender consisted mainly of the complainant’s evidence, the evidence that a swab taken from the complainant’s breast shortly after the attack showed a profile consistent with the appellant’s and CCTV film of the offender.  The complainant, who was a student aged 19 years at the time, gave evidence as follows.  She flew from Wellington to Australia with a friend, Mr Scarrah, and her partner, Mr McKnight, arriving at Brisbane airport around 9 am on 1 December 2007.  They were picked up at the airport by Mr Matulino who took them to an apartment in The Moorings where a cousin of Mr Matulino was staying.  In the afternoon, the group socialised and consumed alcoholic beverages.  At about 11 pm, after the complainant had had about ten alcoholic drinks, the group went to various nightclubs during which the complainant had more to drink.  She also consumed half an ecstasy tablet that evening. 

[5]      Early the next morning, Mr McKnight and Mr Matulino walked back with the complainant to The Moorings.  They were unable to gain entry as they didn’t have a key and were unable to raise anyone in Mr Matulino’s cousin’s apartment.  CCTV film shows that, after unsuccessfully trying to gain entry to The Moorings, the complainant and her two companions sat down on the front stairs.  The film then shows the complainant lying down and sleeping, a male approaching her from outside The Moorings, looking about him and then lifting the complainant up and taking her inside. 

[6]      The complainant said that she awoke to find herself in a strange room with a stranger on top of her with his penis inside her vagina.  She struggled with her attacker.  His penis came out of her vagina and he kept trying to insert it.  The complainant, who was crying, successfully resisted.  For some time the attacker was on top of her “saying things like ‘kiss me’”.  She was clothed throughout in a black dress, bra and panties.  When trying to re-insert his penis, the attacker was pulling her panties to one side.  He pulled her bra to the side and managed, despite the complainant’s resistance, to kiss a breast around the nipple.  He then sat up and started to masturbate over her.  She didn’t know whether or not he ejaculated. 

[7]      The complainant, having got her bearings, left the bed, ran out the door into the corridor and pressed the lift button.  Her attacker came out of his room and the complainant “saw the man [she] described earlier, he was dark skinned, he had a shirt on, it was like a kind of greeny, browny kind of colour, button up shirt…it was…short-sleeved…[and] He had pants on at this stage”.  She recalled him “having some sort of a beard, like, a sideburn, kind of thin beard thing going round his face.”[1]

[8]      She noticed some sort of writing on the back of the shirt.

[9]      Outside the lift door, the attacker grappled with her.  He was trying to get her to go “down the emergency exit door where the stairs were instead of going down in the lift.”  She managed to get away, the lift door opened and she jumped in.  As the lift door closed, she saw him going back to his room.  From the third floor, she went up to the fourth floor to the cousin’s room.  She deduced from the displayed numbers in the control panel in the lift that she had been on the third floor.  She was unable to rouse anyone in the room and, after a while, went down in the lift to the ground floor.

[1]R19.

1. She woke Mr Matulino and told him she had been raped “and…probably numerous other things, I don’t recall exactly what I said.”  Eventually, the police arrived.  When she was conversing with a police officer in the foyer of the apartments, a man came out of the lift.  She identified him to the police officer interviewing her as her attacker.  She said “…he was wearing a beanie and he had the same shirt on.” 

1. In cross-examination, she admitted that during the night she had lost one of her shoes on the dance floor of a nightclub.  She thought that she threw the other shoe away.  At the committal proceedings, when asked to describe how intoxicated she was on a scale of 1 to 10, she described herself as being a 10.

1. At the committal hearing, she said that her attacker had a short dark head of hair.  In cross-examination, she re-affirmed that that was her recollection.  It was put to her that she told Dr Gan, who had examined her on the morning of the incident, that her attacker was “unrecognisable”.  She said she didn’t remember saying that he was “unrecognisable” and that she had said that she had “never seen him before.”  Pressed on the point, she said, “Well, you don’t forget a face like that, and I knew that that was the guy…and I just saw his face and I knew that was him.”  In cross-examination, the complainant accepted that she had described her attacker as having “facial hair and sideburns”.  She accepted that she had suggested “that the sideburns led into the beard”.  It was put to her that she didn’t mention “sideburns or facial hair” to the police officer who first interviewed her and she accepted that this was so.  She said “Possibly.  I wasn’t probably in a state to talk much.”

1. The complainant accepted that it was dark in the room at the time of her attack, but said, “I got a good look at him, yes.”  She accepted that the period in the corridor in which she managed to escape her attacker was quite short, and that she had previously described it as lasting for about 30 seconds.  She accepted also that she was then “in quite a panic”.  It was suggested to her that she was obviously very confused because of the alcohol and the drug which she had consumed.  She responded “[p]rior to that, yes, but sobered up pretty quick.” 

1. Mr Matulino gave evidence of falling asleep when sitting on the steps of The Moorings with the complainant and Mr McKnight.  He woke up with the complainant hugging him and crying.  She was extremely upset and couldn’t speak any more after telling him that a guy on the third floor had taken her up the emergency stairs.  He said that once others had arrived at the apartments, he went to the third floor of the apartments with two others, knocked on the doors and asked that the doors be opened.  There was no answer.  He accepted that he, the complainant and Mr McKnight were intoxicated.  He said that the complainant “could still walk and talk properly.”  He accepted that such walking was with his support but he put some of her need for support down to her tiredness. 

1. Ms Green was the manager of The Moorings at the time of the subject incident.  She said that “at night time” in order to open the front glass door it was necessary to insert a coded number.  She said that “…outside the [lift] doors from the bottom it tells you what floor and what unit numbers were on that floor.”  She accepted that the display inside the lift also informs passengers of the floor the lift is at. 

1. She accepted that it was impossible to leave the emergency stairwell in order to access any of the floors above the ground floor.

1. Mr Fitzgerald-Scarfo said that he was a friend of the appellant’s from university.  He had stayed with the appellant on Friday, 30 November 2007 at The Moorings.  He said that on Saturday, 1 December he went in to Surfers Paradise from The Moorings at about 10.30 to 11pm.  He did not see the appellant again that weekend.  The appellant was wearing:

“…white dress shoes, blue jeans, like a brownish shirt. It had kind of like badges down one side of it and a symbol on the back, something like Taichiji Cup or something like that, and a — like a black straw hat, scruffy edges around it.”

1. Asked again about the colour of the shirt, he said he wasn’t sure – he thought, “a light tan to darker.”  Mr Fitzgerald-Scarfo was not asked to describe the appearance of the appellant’s hair or hairstyle. 

1. He identified a photograph of a black straw hat as looking like the headwear he had described.  The photograph, Exhibit 7, was of the headwear found in the appellant’s room. 

1. Mr Ha, a former police officer, gave evidence of having attended The Moorings on 2 December 2007 at just before 5 am.  When he arrived, the complainant was sitting on the steps in front of the complex.  A female police officer, Senior Constable Whiteley, escorted the complainant into the foyer.  He saw the complainant “look with some fear or fright…when she saw somebody come from around the corner in the direction of the lifts.”[2]  He saw her stand up quickly, move towards the man and put her hand on him.  Officer Whiteley moved to the door and pressed a button for it to open so that he could come in.  He accepted that he had written in his police notebook that the person in the lobby was wearing a black beanie, “jeans denim” and “coffee collared”.  He said he was quite tired at the time, but would assume that the reference was to a “coffee collared shirt”.  He accepted that at the committal hearing he had described the appellant “as moving in an unhurried manner across the foyer”. 

   [2]R64.

1. Senior Constable Banyari gave evidence of going to The Moorings early, around 5 am, on the morning of 2 December 2007.  He was outside the building when his attention was directed to the third floor, where he saw a person peering over the balcony.  The person indicated to him the number of the unit he was in.  When he arrived at the unit with two other police officers the door was open, but no one was inside.  He called out to police officers below to “Block the exits”.

1. Senior Constable Whiteley went to The Moorings at about 4.50 am.  She was taking a statement from the complainant when the complainant grabbed her on the arm and said, “That’s him.”  She described the appellant as “… about 175, solid in build, wearing a beanie, … a coffee coloured T-shirt, [and] wearing jeans.”  She recorded the description the complainant gave of her attacker in her notebook as follows:

“Dark in appearance, coloured skin. …Dark in appearance, sort of like coloured skin….possibly Indian… ‘accent’, ‘was wearing a green hooded jacket…broad, wide nose... He had short black hair and was approximately 30 years of age.’”

1. She also noted in her notebook:

“The offender walked into the foyer area approximately at 0545 hours. He was wearing a beanie, coffee coloured shirt and — with blue jeans.”

1. Senior Constable Harriss was with Senior Constable Banyari.  He saw a male on the third floor of the complex who indicated he was in unit 17.  He also went to the unit and found it empty.  When he went downstairs he saw the appellant with another police officer or other police officers.  He arrested the appellant at about 5.40 am.  The appellant was then wearing “a black, red and white beanie.  A grey shirt with patches on it, including one that said ‘Street Circuit’.  He had some light grey shorts on.  He had a red, yellow and green sweat pant.”  He described the appellant as being of “middle-eastern appearance, approximately 170 centimetres tall…a pudgy build.  With olive skin and a thin, faint goatee that came down the sides and then across the chin.”

1. The officer identified the shirt the appellant was wearing when taken into custody.  That shirt became Exhibit 8.

1. In cross-examination, Senior Constable Harriss agreed that when he saw the appellant, the appellant had a shaved head, a faint, thin, black goatee, but no sideburns.  Exhibit 8, consistently with Senior Constable Harriss’ description, has a rectangular blue patch above the pocket on its left side on which appears, below some Chinese writing, the words “Street Circuit”.  There are two black dots at each end of the word “Circuit”.  Some numbers and letters have been stamped or dyed in black above the pocket on the front right of the shirt which has buttons, a collar and epaulettes.  In the middle of the back, commencing at about 11 cms below the collar and extending down the shirt is a roughly circular motif approximately 20 cms in diameter depicting a dragon or mythological creature.  Above it in large letters are the words “Taichiji Cup”.  The figure “19” is on the left of the motif and “74” is on its right.  There is script underneath the motif which has the appearance of being Chinese or perhaps Japanese.  About 6 cms from the top of the sleeve, there is a yellow band, approximately 1 cm in width, with the same printed script on it as is on the front of the shirt.  Underneath this yellow band is a wider, but shorter patch in red and white also containing some printed script which has the appearance of being Chinese or Japanese. 

1. Another shirt found in the room was identical, except that one was rather more faded than the other.

The appellant’s contentions

1. The submissions of counsel for the appellant may be summarised as follows.  The critical issue in the case was identification.  There are three types of identification evidence to be considered: the complainant’s recognition evidence; DNA and the CCTV footage.  The CCTV footage depicts three episodes.  The first two are the significant ones, as the figure in the third is accepted as being the appellant.  There is no convincing similarity between the figure in the third episode and the figure in the first two.  The same person is likely to be depicted in the first two episodes.  That person can be seen wearing a shirt with two decorative parallel bars on the right sleeve which are light in colour.  There is an obvious contrast between the colour of the bars and the shirt.  The motif on the back is more or less circular with a word or words around the upper circumference and in a block on the bottom.  There is a general similarity between the shirt shown on the CCTV footage and the one shown in a photograph, Exhibit 10.

1. However, the photographs of the shirt in the exhibit, although showing a motif and markings on the back similar to the shirts depicted on the first two CCTV episodes, show only one marking on the sleeve.

1. It is possible to observe in the first two of the CCTV episodes that the person depicted had sideburns from the top of his ear to his jawbone.  This is clearer in the first episode than the second, but the possibility that the person in the second episode has such facial hair cannot be excluded.  It is not possible to tell from the CCTV footage of the first two episodes whether or not the person depicted has a shaven head.  The complainant identified her attacker as having black hair and sideburns.  Unless the appellant shaved between the time of the attack and his appearance in the lobby, he could not have been the attacker.  Any conclusion that the appellant shaved after the attack is entirely speculative. 

1. Having regard to the dark conditions in the bedroom and the complainant’s obvious state of distress, her ability to properly observe her attacker in the bedroom is highly questionable.  The same applies to her identification in the hallway where she only saw the attacker for about 30 seconds when she was trying to evade him. 

1. Mr Fitzgerald-Scarfo, who was called by the prosecution, was not asked about whether the appellant’s head was shaven or whether he had facial hair.  When considering the complainant’s identification evidence, it is necessary also to bear in mind her state of intoxication.  Any suggestion that the shock of being attacked caused the complainant to sober up should be disregarded in the absence of scientific evidence supporting the possibility.

1. Further doubt is cast on the complainant’s identification evidence by Dr Gan’s notes recording that he was told that the attacker was “unrecognisable”. 

1. The DNA evidence did not assist the prosecution to identify the appellant as the complainant’s attacker. 

1. There is no reason to doubt the fairness of the primary judge’s summing up in relation to the DNA evidence.  After discussing the evidence of Professor Van Daal, the scientist who gave expert evidence for the defence, the primary judge said in his summing up:

“It’s a matter for you how you assess the DNA evidence, ladies and gentlemen. You might in light of Professor Van Dahl’s evidence find that she was a very impressive witness and you may be concerned about the reliability of the DNA evidence and it’s a matter for you whether you put it to one side when you go ahead and evaluate the rest of the prosecution evidence to determine whether they have proved beyond reasonable doubt that it was this defendant that committed these offences.”

1. Reference was made to a number of concessions made by Ms Chan, a scientist employed by the John Tonge Centre, and her evidence was criticised as follows.  Ms Chan accepted that the sample of DNA material obtainable from the two breast samples was .036 nanograms and that the dry sample was .00355 nanograms.  She accepted that if a DNA sample was too low and not of sufficient quality, you would not get a profile at all.  She said that it was recommended by the kit used by the John Tonge Centre that a quantity of DNA material between 1.2 nanograms and 2.5 nanograms be used for each test. 

1. Ms Chan concluded that the breast wet swab showed a mixed DNA profile consistent with more than one person, that they were able to separate the mixed profile into a major component and a minor component and that the major component matched the reference sample of the appellant, but that the minor component did not contain sufficient information to analyse further.  Ms Chan agreed that there had been some contamination of testing in relation to sixteen swabs that were taken during the subject investigation but said that this problem had been corrected.  She explained that all that occurred was that some DNA material had been swapped around on a testing device.

1. She agreed that there was a problem with contamination, but it was not the Centre’s procedure to actually put the history of this in reports so long as the correct final results were contained in the reports.  Ms Chan agreed that the appellant was of middle eastern origin, but that the figure used to make the probability calculations of a match were based on figures from a Caucasian database and that the Queensland database only contained a Caucasian database – ie, it did not contain a middle eastern database. 

1. The appellant gave evidence to the following effect.  He was a Saudi Arabian national who was studying pharmacy in Australia.  He, Mr Fitzgerald-Scarfo and the latter’s girlfriend went into Surfers Paradise at about 11 pm.  He lost contact with his friend and his friend’s companion and, after visiting some nightclubs, returned to his apartment at about 2.30am.  He was wearing a grey coloured shirt with markings on its right arm and chest as well as on the back.  The shirt was seized by police.  After arriving at his apartment, he went to sleep.  After waking he went into the foyer.  He didn’t see the complainant at The Moorings.  When arrested, he had no hair on his skull and no sideburns.  He was aware that a CCTV was located at the entrance of The Moorings.

Consideration

1. There is virtually no room to doubt that the shirt worn by the appellant in the foyer of the apartments, when identified by the complainant as her assailant, was a shirt of the same manufacture and appearance as the shirt worn by the person shown in the first two episodes of the CCTV film.  Although that conclusion cannot be reached merely from observing the CCTV film, it becomes apparent when Exhibit 8, the shirt worn by the appellant when identified by the complainant, is compared with the shirts shown in episodes one and two.  The markings on the shirt or shirts in the film are quite distinctive and match those in Exhibit 8 in location, size, and appearance. 

1. Mr Fitzgerald-Scarfo identified the black straw cap shown in the photograph, which became Exhibit 7, as looking like the one worn by the appellant on the evening of 1 December 2007.  The cap was found in the appellant’s room and was similar in appearance to the cap shown on the person depicted in the first and second CCTV film episodes.  In the film, the person depicted did not appear to be wearing the white dress shoes that Mr Fitzgerald-Scarfo said the appellant had been wearing when in his company on the evening of 1 December, but the person in all three episodes of the film showed a person wearing a wristband.  If Mr Fitzgerald-Scarfo was not mistaken about the shoes, they could easily have been changed.  There was no evidence about the shoes, if any, found in the appellant’s apartment.

1. The complainant’s identification was supported by the fact that the appellant’s  room was on the third floor.  Although the building was thirteen storeys high, there were only four apartments on each level.  The appellant admitted being in his room at the time of the attack.  The attack took place on the third floor.  The complainant was cross-examined at some length about her identification of the floor, but her evidence was plausible and unshaken.  The appellant was up and about very early on the morning of the attack.  He was seen looking over the balcony of his apartment a little before 5.30am.  When police went to his room, the appellant had left it.  It was open to the jury to infer that he left the room in order to make his way out of the building and thus avoid police officers or to confront them, if they could not be avoided.

1. A further factor confining the possible range of suspects was the identification of the appellant as speaking with an accent and as having dark or coloured skin.  The complainant described the appellant as having a thin or faint goatee that came down the sides, then across the chin.  That accurately describes the appellant’s goatee. 

1. The complainant’s identification of the appellant, as counsel for the respondent pointed out, occurred in circumstances where the appellant’s presence in the lobby was not to be anticipated by the complainant.  He submitted, with some justification, that the complainant could have been expected to have had a good recollection of the appellant’s facial appearance so soon after the incident.  Although the lighting was poor in the bedroom , it was better in the hallway and the complainant had an opportunity to observe the appellant’s face in both phases of the incident.  Even though her powers of observation were likely to have been clouded by her state of intoxication and the stress she was under, the jury was entitled to give her identification evidence some weight. 

1. That the appellant had no sideburns and no hair on the top of his head when seen at 5.30 am is capable of explanation, either by a mistake on the part of the complainant or by the appellant having shaved his sideburns and his head or just the sideburns.  The prosecutor argued, in his closing address, that the photograph of the appellant taken in the watch house on 2 December showed “a very smooth face as if it had just been shaved”.  It would not have been difficult for the appellant to have shaved his sideburns without leaving a trace using the common type of razor found on the vanity basin in the unit’s bathroom.  Shaving the head without leaving a trace of very recent shaving on it, or in and about the vanity basin may be thought more problematic.  However, there was no evidence that the appellant had been examined for signs that his hair and sideburns had recently been shaved.  Nor was there evidence that his bathroom had been examined for signs that the appellant had recently shaved.  The forensic examination of the room appeared cursory.  It does not appear that any attempt was made to test the bed sheets or cover for traces of the complainant’s DNA.

1. Professor Van Daal’s evidence concerning the DNA testing and results was effectively summarised by the primary judge as follows:

“Turning to Professor Van Dahl’s evidence. She, again, outlined her extensive qualifications and experience to you. She told us that she had examined the results of the DNA profile obtained by Ms Chan. Professor Van Dahl told the Court she was concerned that the height of the peaks on the reference sample of Mr Almotared, so, that’s from his saliva test, were much lower than the peak heights on the breast sample. She said that this was highly unusual and would indicate that something was not quite right with the results.

She gave evidence that a major concern in the reliability of the testing on this occasion was the extremely low quantity of available sample from the breast swab. She told you it was only six cells which was well below the 200 cells which would normally be the type of figure that you would use in testing. She also said that .036 nanograms available was well below the minimum quantity of 1.2 nanograms, which the testing kit requires.

She gave evidence that this very low amount could lead to a false result because either contamination could occur or this sampling error or stochastic effect that she spoke about could occur and she gave you the example of the — of the coin tossing and that that could lead to a false result.

She summarised, at one stage, this problem by saying, at transcript 4, ‘with any — with only six cells worth of DNA that’s well and truly outside the validated range where we know we can expect reliable results.’ And then she later finished that by saying ‘it’s too low’.

Now, under cross-examination you may recall she also further explained the importance of adhering to validity ranges and she was referring to these validation ranges of 1.2 to 2.5, which had been provided by the kit that the John Tonge Centre used. She said, ‘The technique and the processes are validated to ensure that, where you have an unknown sample or an evidence sample, that you can be confident you have a correct typing of the sample and a reliable result.’ You may also recall her — on her face, I certainly noticed her shock and concern when the prosecution suggested to her that the John Tonge Centre doesn’t worry about quantifying samples that they test and she made the comment that, ‘If that was the case they would be in breach of the NATA accreditation requirements.’”

1. Professor Van Daal was the Professor of Forensic Science at Bond University.  She had had extensive experience prior to that in a South Australian laboratory which was the first laboratory in Australia to use the current form of DNA testing.  She had conducted research in areas of molecular biology and genetics at Washington University and the Rockefeller University.

1. Under cross-examination, Ms Chan, who held an honours Bachelor of Science degree from the University of Nottingham and a National Diploma in Sciences from Bromley College of Technology and who had had extensive practical experience in DNA testing, explained that although there had been some problems with testing of samples at the time the subject samples were being tested, those problems had been rectified and correct results had been obtained.  In response to it being put to her that when testing was done on very low quantities of material there was a serious risk of getting “completely nonrepresentative results”, she said that whether this was so depended on the quality of the sample:[3]  where the sample was of poor quality, a DNA profile would not be obtained.  She said that a viable profile is revised and analysed, and once obtained, it is possible for the tester to have full confidence that the results are correct.[4]  She explained the circumstances in which results would be rejected as being insufficiently accurate and expressed confidence in the subject results.

   [3]R145.

   [4]R145.

1. The jury was not bound to share the primary judge’s obvious preference for the evidence of Professor Van Daal over that of Ms Chan.  But even if they had preferred the Professor’s evidence, they were not obliged to conclude that Ms Chan was not competent in her field of expertise and that the DNA evidence had no evidentiary value.  Despite Professor Van Daal’s criticisms of the DNA testing, she did not go as far as stating that it was worthless or even nearly so.  The jury was entitled to use the DNA evidence as but one of a number of pieces of evidence supporting the complainant’s visual identification of the appellant.

1. Although counsel for the appellant submitted that the first of the two CCTV episodes showed a person with sideburns from the top of his ear to his jawbone, it is far from clear that this is so.  There is a darkish colouration in the area where sideburns would be extending down the face on to the chin.  That colouration could easily be a trick of the lighting.  It noticeably extends on to and gets darker in the area of the appellant’s neck. 

1. I do not consider that Dr Gan’s notes made at the time he examined the complainant materially damaged her credibility.  Dr Gan had written “not recognised” and some lines later “[w]ith an unknown, unrecognizable man”.  The complainant was cross-examined at length about what she said to the doctor.  She did not accept that she said words to the effect that the offender was unrecognisable.  To the contrary, she said “you don’t forget a face like that” and she had made the identification in the lobby before seeing Dr Gan.  Having regard to that identification, about which she appeared quite certain, it is unlikely that the complainant told Dr Gan that the offender was unrecognisable.  It is more likely that Dr Gan was mistaken.

1. In MFA v The Queen,[5] Gleeson CJ, Hayne and Callinan JJ said in relation to the test to be applied when determining whether a verdict is unsafe or unsatisfactory:

“Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen. That test was accepted and applied by this Court in Jones v The Queen... Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said:

‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’” (citations omitted)

[5](2002) 213 CLR 606 at 614-615.

1. In their joint reasons in MFA v The Queen, McHugh, Gummow and Kirby JJ said:[6]

“The majority in M pointed out that ‘[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced’. In such a case of doubt, it is only where the jury’s advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused’s guilt that the appellate court may decide that no miscarriage of justice has occurred:

‘If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.’” (citations omitted)

[6](2002) 213 CLR 606 at 623.

1. After considering the evidence before the jury and allowing for the advantages enjoyed by the jury, I have concluded that on all the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.  The complainant’s visual identification although, in itself, incapable of proving guilt beyond reasonable doubt, was supported by: the appellant’s occupation of an apartment on the third floor, the floor identified by the complainant as the scene of the attack; there being only four apartments on the third floor; the figure in the CCTV film who appeared to be wearing a shirt identical in appearance to the one the appellant was wearing when identified by the complainant; the straw headwear found in the appellant’s apartment, which matched the headwear on the figure in episodes one and two; the complainant’s description of a dark or coloured skin person who spoke with an accent and who had a goatee which came down the sides and then across the chin; the fact that the appellant was in his room at the relevant time; the appellant’s movements in the early morning of 2 December; the wristband evidence; and the DNA evidence.  It was open to the jury to conclude that the cumulative weight of these matters was not so affected by the matters relied on by the appellant as to prevent their being satisfied beyond reasonable doubt of the appellant’s guilt.

1. I would order that the appeal be dismissed.

1. WHITE JA:  I have read the reasons of Muir JA and agree with his Honour for those reasons that the appeal be dismissed.

1. MARGARET WILSON AJA:  The appeal should be dismissed for the reasons given by Muir JA.