R v Kern

[1992] QCA 454

IN THE COURT OF APPEAL [1992] QCA 454

SUPREME COURT OF QUEENSLAND

C.A. No. 234 of 1992

THE QUEEN

v.

LINDSAY JOHN KERN

Mr Justice McPherson
Mr Justice Davies

Mr Justice Williams

Judgment of the Court delivered on 18th December, 1992

Appeals against conviction dismissed

JUDGMENT OF THE COURT

Delivered the 18th day of December, 1992

MINUTE OF ORDER:Appeals against conviction dismissed.

CATCHWORDS:Criminal Law - circumstantial case on identity - held guilty verdicts on evidence not unsafe and unsatisfactory.

Counsel:P. Nase for appellant

Byrne for Crown

Solicitors:Legal Aid Office for appellant

Director of Prosecutions for Crown

Hearing Date:2nd December, 1992

JUDGMENT OF THE COURT

Delivered the 18th day of December, 1992

The appellant was convicted in the District Court of the

following offences:

(i)disabling in order to commit an indictable offence (s. 315 of

the Criminal Code);

(ii)indecent assault;

(iii)stealing (handbag and other property from the victim).

At the outset of the trial the appellant by his counsel admitted that the victim was choked in some way and that consent was not in issue as regard anything that happened to her. There was no challenge to the victim's evidence that her underpants had been removed and some injury inflicted to her vagina. Nor was there any challenge to her evidence that her purse and some other property had been stolen.

The second charge on the indictment was that of rape but, as there was no evidence as to what caused the injury to the victim's vagina, the learned trial judge directed a verdict of not guilty on that count; the jury returned a verdict of guilty of indecent assault.

At the time the admissions were made, counsel for the appellant made it clear to the court that the only issue at trial was as to the identity of the attacker. The prosecution

case against the appellant was a circumstantial one based on the

following:

(i)opportunity to commit the offence;

(ii)false statements made to investigating police officers as to

his movements at critical times;

(iii)hairs, said to be similar to samples taken from the appellant, were discovered on a balaclava and also on an anklet stocking which the victim had been wearing, each of which was found by police

at the scene of the crime;

(iv)the balaclava found at the scene was homemade and a

strikingly similar homemade balaclava was found
amongst the appellant's possessions.

The first ground of appeal was that the learned trial judge erred in law in allowing the prosecution to lead evidence as to injuries suffered by the victim having regard to the terms of the admissions made on behalf of the appellant. That ground was

not argued on appeal.

The second ground of appeal was that it was impossible for the jury to conclude beyond reasonable doubt that at the time of the choking the appellant had a specific intent to indecently

assault the victim. Again that ground was not argued on appeal.
The only ground on which this court was asked to set aside

the conviction was that the verdicts of the jury were unsafe and unsatisfactory as regards identification. Eight particulars were relied on in support of that ground.

The appellant was one of a number of men who lived an

itinerant life on the streets of the Gold Coast. Generally the

evidence established that they slept where they could; sometimes in abandoned buildings, sometimes at hostels for the homeless,

and at other times wherever they found a suitable spot. They sought food from a number of sources and in particular obtained leftovers from a shop at Surfers Paradise when it closed at about 8.00 p.m. That shop was situated at the intersection of the southbound Pacific Highway and Hamilton Avenue.

On the night in question (3rd June 1991) the victim, who was a tour guide, had been to a restaurant in Surfers Paradise with a tour group. They left the restaurant at about 8.00 p.m. and shortly afterwards the complainant began walking to her residence in Hamilton Avenue. She purchased some groceries at a shop near the intersection of the Pacific Highway and Hamilton Avenue before walking along that latter street towards her

residence. She said it would have taken her approximately 10 minutes to get from the restaurant to the vicinity of her home.

She did not at any stage see her attacker. She was aware of
something white being placed over her head and then its being

pulled tight around her neck. She then lost consciousness.

When she again became aware of her surroundings her trousers had

been partially replaced but her underpants were missing (they

have never been located). Also her handbag and a number of

other items were missing (again they have never been found).

A person living in a unit in Hamilton Avenue (the witness Hill) heard some noises suggesting a disturbance nearby which continued for some time; she went out to investigate at about 8.40 p.m. She discovered the victim in the garden area of the

block of units and the police were immediately notified.

According to Constable Jeffreys, the police received the call at

8.45 p.m.

The victim was taken to the Gold Coast Hospital where she was examined by Dr Ramin. He noted a small piece of loose cloth tied around her neck; he also saw marks on the neck and other clinical signs suggesting strangulation. Dr Downes, the Government Medical Officer, subsequently cut that piece of cloth

and removed it from the victim's neck; it became ex. 24. Her medical examination included findings that the victim was bleeding from the vagina, and had significant abrasions to the

lower limbs. The victim was bleeding from those abrasions.

In Hamilton Avenue, between the north and southbound sections of the Pacific Highway, there is situated the Surfers Paradise Anglican Crisis Care Centre; it is at the rear of St

John's Church. Amongst other things, that centre allows

destitute people to use showers and laundry facilities located

there. The centre does provide food for destitute people, but

there is no crisis accommodation there. On a somewhat informal

basis (though with care to ensure property is not interfered

with by persons other than the owner) the centre provides a
service for minding property for homeless people.

At about 9.30 a.m. on 3rd June 1991 the appellant, accompanied by the witness Thompson, went to that centre and spoke to the witness Eyre, who was then on duty. The appellant said that he had a couple of bags he wanted to have locked away.

Eyre agreed to do that for a couple of days. The witness

identified the two bags then taken into safe custody by the

centre.

Critical evidence for the prosecution was given by the witnesses Thompson and Viejo. Each of them was a homeless person who had lived on the streets with the appellant. The

three had spent the night of 2nd June in an unoccupied house in

Markwell Avenue. According to Thompson the following day, 3rd June, they went to St John's "to get a feed" but none was then

available. At about 8.00 p.m. the three then went to a shop on the corner of Hamilton Avenue and the Pacific Highway where they

knew leftover food was handed out when the shop closed. The

appellant was wearing a blue denim jacket. According to Thompson after they obtained food, and had eaten it in the

general vicinity of the store, the appellant left saying that he

was going to go to Southport. Thompson did not see him again

that night, but did see him the following day at St John's.

Viejo also gave evidence that at about 8.00 p.m. on 3rd

June he went to the chicken shop at the corner of Hamilton

Avenue and the Highway with Thompson and the appellant.

According to him about 15 minutes after they obtained the food,

he and Thompson separated from the appellant. His evidence was

that the appellant was wearing a denim jacket and a blue cap.

Evidence was also called from the owner of the shop in

question, Roelse. He confirmed that he gave away leftover food

on closing his shop at about 8.00 p.m. on the night in question.
His evidence was to the effect that Thompson and Viejo came

into the shop and he gave them food. According to his evidence

a third person did not come into the shop with them; but he saw
another person on the other side of the street.

Two witnesses were called who saw the appellant later that evening at Labrador. The witness Licciardo, who worked in a voluntary capacity at Shiloah House Youth Hostel, at Labrador, gave evidence that he spoke to the appellant at that hostel at

about 9.30 p.m. that evening. He was also seen there by the witness Harvey; he saw him at "roughly nine o'clock". Later he went on to say that it "was after dinner and before ten o'clock".

From about 8.00 a.m. to 11.00 a.m. on 4th June Constable

McLean was engaged in enquiries with respect to the offence in

question; he doorknocked in Hamilton Avenue. On the second

occasion on which he visited St John's, he saw the appellant there and had a conversation with him. The appellant was then

with Thompson, who was known to McLean. This conversation then

occurred between McLean and the appellant:
McLean:What is your name, matey?
Appellant: John.
McLean:What is your surname, John?
Appellant: Cleary.
McLean:Do you have a middle name?
Appellant: No.
McLean:John, we are doing some enquiries into something

that happened at Surfers Paradise last night. Were you in Surfers last night at all?

Appellant: No, I was at Southport.
McLean:So you weren't here in Surfers at all last night?

Appellant: No, not at all.

McLean:  Have you any identification on you at all?

Appellant: No, but I have at home.
McLean: Where is home?

Appellant: 33 Frank Street, Labrador.

The appellant then accompanied McLean to the Surfers

Paradise Police Station where further questioning was carried

out by McLean and Sergeant Millard. The relevant extracts from

that interview are the following:
McLean:John, what's your date of birth?
Appellant:11/10/57.
McLean:Do you have a license?
Appellant:No.
McLean:What do you do for a living?
Appellant:I am a truck driver.
McLean:I thought you said you didn't have a license?
Appellant:It's a Northern Territory license.
McLean:Is that your bank book?

Appellant:No, I found it. I was going to hand it in to the

police station.

McLean:Can I have a look, please? . . . Matey you better

start telling the truth.

Appellant:I am.
. . .

Appellant:Well, I will tell you - that's my name in the

bank book.
McLean:What's the J stand for?
Appellant:John.
McLean:What's your date of birth?
Appellant:10/11/58.
McLean:Why did you lie to me?
Appellant:I am trying to stay out of trouble.
. . .

McLean:Lindsay, can you tell me where you were last night

starting from early evening before

dark?

Appellant:Well, I was with a couple of mates of mine -

Steve and Grant.

McLean:Where do they live?
Appellant:Unit 1, No. 7 Frank Street.
McLean:What time was that?
Appellant:Between about 6 and 8.30 p.m.
McLean:Can they verify that?
Appellant:Yes.
McLean:And where did you go then?

Appellant:I went across the road to Shiloah and spoke to

Trevor and Debbie.

McLean:What time was that?
Appellant:Just after I left Steve and Grant.
McLean:How long were you there?
Appellant:About an hour.
McLean:And then where did you go?
Appellant:I caught a bus to Surfers Paradise Mall.
McLean:I thought you said you didn't go to Surfers?
Appellant:I was a bit confused.
McLean:What bus did you catch?
Appellant:Surfside.
. . .
McLean:Do you know what time that was?
Appellant:No.
. . .
McLean:Who did you see in the Mall?
Appellant:Ross and a few others.
McLean:Then where did you go?

Appellant:I went with Ross and we caught another bus to

where we stayed.

When Sergeant Hall of the Scientific Section examined the

garden area where the incident occurred, he located a number of

items of some significance at the trial. He found what he

described as "a piece of material which was tied up to duplicate a balaclava", a woman's stocking, and two other pieces of material. That grey balaclava became ex. 18, the two pieces of material, ex. 19, and the anklet stocking, ex. 20. They can readily be seen in a number of photographs which were admitted into evidence. The balaclava and the anklet stocking were quite

close together.

In the course of examining the balaclava, Hall located a number of hairs; he placed those hairs in a labelled plastic bag. Samples of hair were subsequently obtained from the

appellant and the victim and they, along with the various items referred to by Hall in his evidence, were sent to the Forensic Section of the State Health Laboratory for further examination.

A bio-chemist, the witness Bentley, gave evidence as to the various tests carried out at that laboratory. Given the argument addressed to this court, it is helpful to set out what she said in relation to hair comparison generally:

"Q.Now, in relation to hair comparison can you explain to the jury what is done and what can be done in order to compare hair kind - the colourations and so forth?
A.Yes. The test basically is performed with a comparison microscope and it involves comparing the appearance of hairs found at scenes with reference material taken from the relevant parties. The appearance is judged mostly on colouration, the distribution of the coloured pigment, and the texture and also the length of the hair to see whether it falls within the range of lengths that's present in the reference sample. As the reference samples themselves may differ - you know, hairs within the same sample may differ - you also have to assess the similarity between that and compare them.
Q.Now, to be clear, what kind of physical method is used to

actually make the examinations and comparisons?

A.The hairs are mounted on microscopic slide and then examined microscopically in a comparison microscope with the reference - while you can simultaneously view your reference sample and your unknown sample and compare those characteristics under the microscope.

Q.And before we go to this particular case, by that method what is the best possible result that can be achieved in terms of determining . . . ?

A.All you can really say is the hairs are similar or dissimilar. They can't be visualised in that it's not like a blood grouping specimen where you can isolate a particular percentage that has a particular combination of blood groups. It's purely a subjective comparison."

There was extensive cross-examination of the witness as to

the validity of hair comparison techniques and as to the weight

which ought to be attributed to a finding that two hairs were similar. It is not necessary to set that evidence out in detail.

The critical evidence for present purposes can be summarised as follows. There were six hairs in all located by the witness Hall on the balaclava (ex. 18) and placed by him in the plastic bag. The witness Bentley found four of those hairs

to be similar to a sample of head hair taken from the appellant.

She said that similarity was with respect to "colour or

gradation of colour". One hair was similar to a sample from the

victim, and the last hair was dissimilar to samples from each of
the appellant and the victim.

On Ms Bentley's examination of the anklet stocking (ex. 20) she located six hairs. Two of those were, in her opinion, similar to a sample of the appellant's pubic hair, two were similar to a sample of the appellant's head hair, and two of them did not appear similar to any sample available for

examination.

The other hair comparison results can be summarised by saying that hair similar to that of the victim was found on a number of items of her clothing, but some hairs dissimilar to samples from the victim and the appellant were also found. Two hairs found in combings from the victim's pubic area were

dissimilar to all samples, and one hair located on her blouse

was also dissimilar to all samples.

It is now necessary to return to the police investigation.

Sometime after the interviews quoted from previously, Sergeant
Millard said to the appellant: "Lindsay, where is all the rest

of your property?". The appellant replied: "It's all here". At that time he indicated one backpack that was in the police

interviewing room. When Millard stated that he must have more

than that, the appellant again replied: "No". After the police

had gone through the contents of that backpack, the appellant

again said: "That's all I have". After that Sergeant Millard went to the drop-in centre at St John's in Hamilton Avenue and ultimately was admitted by staff to the room in which the appellant had previously deposited his bags. There the police took possession of a striped bag and an army bag, being the bags

identified by Eyre as having been deposited at 9.30 a.m. on 3rd

June. Sergeant Millard gave evidence that in the striped bag he

found a cream balaclava and two strips of material; those items

became ex. 31.

The next step in the police investigation was the interview

with the appellant recorded on video tape. Some passages
therefrom should be noted.

The appellant confirmed that he had earlier told the police

that he had no property or bags other than that with him in the

interview room. He was then showed the army bag and striped bag recovered by Sergeant Millard from St John's. When asked what reason did he have for earlier saying he didn't have any more bags, he replied: "Well, I just thought there was no necessity for all - all this, you know, having come about. It's my

private property and um, that's the only reason really."

Then in a series of answers he admitted that Thompson would

have seen him around 8.00 p.m. near the intersection of Hamilton

Avenue and the Pacific Highway, but he went on to say that he

and Thompson left that area and went to "that residence we were

in last night".

The police drew his attention to a denim jacket which was

in his backpack and the appellant specifically denied that he

was wearing it the night before. He also denied he wore the

blue cap which was in that bag the night before.

Later he was shown the balaclava located by Sergeant

Millard in the striped bag. When shown it he said: "I've never

seen that property before. I'd like to know how that's ended up where it is". He also denied having seen the two strips of material fashioned out of the material the same as the balaclava. He reiterated that answer later in the interview,

and when asked how those items could have got into his bag, he replied: "Well, it'd either have to be because people use my - besides myself - have used access to my bag, put their clothing

in. . . . That's the only alternative I can think of as

to how it's got there through some other means".

A little later on it was put to him that the "rest of the

gear in the bags would be your's" and he replied, "Yes". He

replied without inspecting the property, and on being asked whether he wished to inspect it to make sure it was his property, he said, "No, I know that's my property".

Finally he was given another opportunity of putting forward a reason why his version in the course of the recorded interview differed from what he said earlier, and he replied: "Well, I

don't think there would have been much difference. You know, I

can't get the exact story down pat but I can only say my theory

of what happened last night. Yes, that's all I can say".

Because of the appellant's statement to the investigating

police that others had access to his bag, it is necessary to

refer briefly to the evidence of Gourley. He was an associate of the appellant and Thompson. Apparently he had travelled with them from Brisbane a day or two earlier. According to his

evidence, some of his belongings were in the bags owned by the appellant and Thompson and left with Eyre on the morning of 3rd June. On the following day (4th June) he went to St John's to recover his property. He said that he may have looked in the striped bag and claimed that a pair of red underpants found by the police therein belonged to him. But he expressly denied

ever having seen either of the balaclavas (ex. 18 and ex. 31) before being shown them in cross-examination. Given the whole

of his evidence there was no basis for the jury considering, let alone concluding, that he had placed ex. 31 in the appellant's bag.

The particulars relied upon by the appellant in support of

the contention that the verdicts were unsafe and unsatisfactory

are the following:
(a)That the circumstances relied upon by the Prosecution to

support its case on identity when taken singly or together were not sufficient to permit the Jury to draw the inference to the requisite standard that the Accused was the perpetrator of the offences.

(b)That having regard to the fact that the Accused was observed at Southport at approximately 9.15 p.m. on the night in question the Prosecution could not prove that the appellant had sufficient time to commit the offences.

(c)None of the property taken from the complainant was seen or

found in the possession of the appellant.

(d)There was no evidence that any person saw blood on the appellant or his clothes despite the evidence that the complainant lost a large amount of blood as a result of the attack.

(e)The evidence of Viejo and Thompson was unsafe and unreliable

especially having regard to the evidence of Mr Roelse.

(f)The Accused did not have sole possession of his bag, i.e.

Viejo, Thompson and other persons had access to it.

(g)That in relation to the evidence of Miss Bentley the Prosecution did not tender the hairs allegedly examined by her so as to allow the jury to make their own comparison.

(h)Apart from the evidence of Mr Hall there was no evidence adduced during the Prosecution case as to the uniqueness or otherwise of the balaclavas.

Other than paragraph (a) those matters can be dealt with

shortly.

As the victim was found at about 8.40 p.m. and the police notified by 8.45 p.m. there is nothing in the proposition that the appellant could not have committed the offence because he

was seen at Southport (Labrador) at approximately 9.15 p.m.

It is true that none of the property taken from the victim was seen or found in the possession of the appellant; it is also true that there was no evidence that any person saw blood on the

appellant or his clothes. Those are matters which must be weighed when consideration is being given to whether or not the circumstantial evidence permitted the jury to arrive at a reasonable conclusion that the appellant was the attacker. But neither proposition (looked at either alone or collectively) must lead to the conclusion that the convictions are unsafe and unsatisfactory.

Viejo and Thompson were extensively cross-examined and a reasonable jury could well have been satisfied that they were essentially telling the truth. Certainly Roelse does not place the appellant in the shop, and that is a discrepancy between his

evidence and that of the other two. The fact that he referred to a third man being in the vicinity meant that the significance

of the discrepancy was one for the jury to evaluate.

On the evidence the only person who had access to the appellant's bags after they were deposited at St John's was the witness Gourley and no suggestion was made that either he was the owner of the balaclava (ex. 31) or he had planted it in the appellant's bag. Viejo and Thompson did apparently have access to the appellant's bags before they were deposited at St John's,

but each swore that he had never seen the balaclava (ex. 31)

before, and there was no evidence suggesting that either of them

had had any contact with ex. 31 or any similar balaclava.

During argument in this court counsel made no point of the

fact that the hairs, particularly those placed by Hall in the

plastic bag, were not tendered as an exhibit. As microscopic

examination is required in order to make an effective
comparison, there is no substance in that particular.

It is true in a sense to say that there was no evidence adduced at the trial "as to the uniqueness or otherwise of the balaclavas", but it is not necessary that such evidence be given before the jury could be asked to apply their ordinary experience of life in considering whether or not there was some "striking similarity" between the two items.

In the end result, the appellant's argument as addressed to

this court came down to the proposition that the circumstances

relied upon by the prosecution in support of its case on identity, taken either individually or collectively, were not

sufficient to permit a reasonable jury to draw the inference beyond reasonable doubt that the appellant was the attacker; if

that be so, then it was argued that the convictions should be

set aside as being unsafe and unsatisfactory.

If the jury accepted the evidence of either or both
Thompson and Viejo, then there was evidence that the appellant

had the opportunity to commit the offence. That evidence placed

him at the intersection of the Pacific Highway and Hamilton

Avenue, a very short distance from where the incident occurred,

at almost precisely the time at which the offence occurred.

The investigating police officers found the grey balaclava

(ex. 18), the strips of material (ex. 19) and the victim's

anklet stocking (ex. 20) close together in the garden area. The location of those items would support the inference that the

attacker left exhibits 18 and 19 where they were found. The jury could also reasonably come to the conclusion that the

attacker was aware of the fact that he had left that balaclava
at the scene of the crime.

The jury was then entitled to look at the balaclava (ex. 18) using their collective knowledge and experience as a group of people picked from various walks of life. It was obvious that the balaclava was homemade. There was a knot at the top

which would prevent the material from being pulled further down over the head. Then there were slits cut for the eyes and the nose. The slit for the right eye was made with two obvious cuts into the material, whereas the slit for the left eye could have

been made either with two cuts or one cut moving around a

corner. The slit for the nose was essentially vertical.

The jury may well have been puzzled as to the reason for
the two strips of material (ex. 19) being in the vicinity. The

black piece is narrower and shorter than the blue piece, but

each could obviously be used for tying purposes.

The jury were entitled then to have regard to the items ex.
31, the white balaclava and two strips of material. Again it is

obvious that the balaclava is homemade. Again there is a knot at the top in a similar position to the knot seen on ex. 18. Again there are slits for the eyes and the nose. Here the left

eye slit appears to have been made with two cuts, and the right either with two cuts or one irregularly shaped cut. The slit for the nose is horizontal rather than vertical; it is the only

obvious distinction between the two objects.

The jury was entitled to consider the significance of two
strips of material being found with the white balaclava. Again

there is no immediate reason for their presence other than that

they were capable of being used for tying purposes.

In all of those circumstances it was open to the jury to
conclude that there were striking similarities between the
balaclava and two strips of material found at the scene of the

crime and the balaclava and two strips of material found in the appellant's bag. They may well have regarded even the presence of two strips of material with each of the balaclavas as having some significance. If they were satisfied that there were some strikingly unusual features about each of the balaclavas then they could reasonably conclude that there was an association

between the two, namely that they were the property of the same

person.

The evidence of Bentley that hairs similar to those of the appellant were found on the balaclava (ex. 18) and the victim's anklet stocking (ex. 20) does not take the prosecution case much further. Indeed in his summing up the learned trial judge said that such evidence carried "very little weight" and "proves very

little". But it is evidence which cannot be entirely ignored

and it does add another minor strand in the build up of the

circumstantial case.

Next one has to consider the lies told by the appellant to

investigating police officers in the course of the various

interviews. Here it should be noted that the learned trial

judge instructed the jury adequately as to the use that may be

made of lies told by an accused person and the matters to which they should direct their attention when considering those

arguments. His summing up was in accord with directions suggested in a line of authorities of which R. v. McK (1986) 1 Qd.R. 476 is one, and there was no attack on the summing up in

this regard (nor indeed was the summing up in any way challenged

in argument in this court).

It is necessary now to refer to the false statements to

which the jury could have had regard.

Firstly, the appellant lied to the investigating police officers as to his movements at about 8.00 p.m. on the night in question. So far as the time is concerned, it was necessary for

the jury to accept the evidence of Thompson and Viejo before the lie was proved, but once that was done there was a clear basis

on which the jury could have concluded that he told untruths as to his movements at the critical time. His presence near the

scene of the crime was a matter of vital importance and if he was the attacker then he would have known of that. The jury could, in those circumstances, conclude that the telling of that lie on a material issue was the result of a consciousness of

guilt.

Secondly, the jury could also have been satisfied that he
told a deliberate lie as to what he was wearing on the evening

in question. If the jury accepted the evidence of Thompson and Viejo then the appellant lied when he denied to the investigating police that he was wearing a denim jacket and blue cap at the material time. If he was in fact the attacker then he could be taken to have known that identity was a critical

issue, and an untrue statement going to identification could

well be regarded by the jury as evincing consciousness of guilt.
Thirdly, the jury could have been satisfied that the
appellant lied when he told the police investigators that he had
remained in Thompson's company for the rest of the night. Again
that was a matter going to his opportunity of committing the

crime, a material issue at the trial, and it was open to the jury to conclude that such a lie evidenced consciousness of

guilt.
Fourthly, and finally, the jury could well have been
satisfied that he lied to the police as to the extent of his

possessions in order to prevent them from locating the striped

bag. If as mentioned above, the attacker was aware that he had

left a homemade balaclava (with or without tie cloth strips) at

the scene, it is highly probable that he would appreciate the

significance of the police finding a similar object (with or without tie cloth strips) amongst his possessions. Against that background a reasonable jury could well conclude that the lie was the product of a realisation of guilt.

When all of those matters are looked at together, they were capable of providing an evidentiary basis on which a reasonable jury could be satisfied beyond reasonable doubt that the

appellant was the attacker. An independent assessment of the evidence does not cause this court to conclude that verdicts so reached are unsafe and unsatisfactory. It must also be remembered, particularly when one is evaluating the significance of telling untruths, that the jury had the opportunity of seeing the appellant under police interrogation on video seeking to

explain the inconsistencies between the various accounts he had given to the police. The jury's assessment of his demeanour at that stage could also have been of some significance in the

course of their deliberations.

Whilst there was no direct identification evidence in this case the circumstantial evidence implicating the accused was such that a reasonable jury could have drawn the inference beyond reasonable doubt that it was the appellant who was

responsible for the attack on the victim.

It follows that the appeal against convictions should be

dismissed.