Mulholland v R

1. [1]

   SIMPSON AJA: I agree with Ierace J.

2. [2]

   WILSON J: I agree with Ierace J.

3. [3]

   IERACE J: The applicant was convicted at trial before a jury on 30 August 2017 of one count of recklessly inflicting bodily harm with intent to have sexual intercourse, contrary to s 61K(a) of the Crimes Act 1900 (NSW). There was an alternative count on the indictment of indecent assault, contrary to s 61L of the Crimes Act. He seeks leave to appeal his conviction, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). He has not sought leave to appeal against the sentence subsequently imposed.

4. [4]

   The Crown case was that the applicant assaulted the complainant as she was walking home late at night on Monday 14 March 2016 in Randwick, in circumstances which indicate that he intended to have sexual intercourse with her. The applicant denied that he was the assailant. Identification was the central issue of the trial.

5. [5]

   The complainant’s evidence was that on that evening, she had a glass of wine with a friend at his place in Randwick and, at about 11.30pm, left to walk to her place, which was about a 15 to 20 minute walk away. She was wearing a long dress with shoulder straps, a sleeveless cardigan and sandals. Her route took her south along Alison Road and past the Coach and Horses Hotel, which was on the corner of Alison Road and Avoca Street. The complainant turned left off Alison Road into Glen Avenue, Randwick, which was a residential street. When she was about 3 or 4 metres past the intersection, someone put their right arm around her neck and their left hand on her left breast, and pulled her backwards onto the footpath. She screamed out “No, no, no”. As she fell, she saw the assailant’s face over her left shoulder.

6. [6]

   Once on the ground, the assailant continued to hold his right arm around her neck from behind and with his left hand pulled at her cardigan and tried to pull her dress down. He was unsuccessful and came around the front, positioning himself at her feet and pulled at her dress. She kicked and punched towards him, screaming, “You’re not gunna do this to me. You are not doing this to me”. She thought that one of her punches must have connected with his face, because he stopped.

7. [7]

   At that point, she noticed on the footpath to her side, about 2 metres away, a plastic shopping bag and a glass beer bottle “lying out”. Fearing he would attack her with it, she quickly crawled over and grabbed it. At around that time, she thought a car came along. She also grabbed two pieces of clothing, at least one of which was “hanging out of the bag”, and ran away. She paused and looked back, and saw the assailant “looking for me … frantically looking”.

8. [8]

   The complainant resumed running but was hampered by one of the items of clothing, which she described as “like a pair of trousers”. She threw it in a garden and ran home, which took “a minute”. Her flatmate called the police.

9. [9]

   The brand of the unopened bottle of beer that the complainant had grabbed and taken home was “Uberbrau”. The item of clothing she retained was described as a white chef’s jacket. In the early hours of the following day, police recovered the discarded pants, which were also of a type worn by chefs. As well, they located certain items at the scene of the assault, being the cardboard packaging of a six-pack of Uberbrau beer, a blue shopping bag with Carlton Draught bottles inside, of which at least half were smashed, and an empty Carlton Draught beer bottle.

10. [10]

    DNA testing was conducted on some aspects of the complainant’s clothing and the seized items. DNA from at least one individual other than the complainant was found on her dress and cardigan, but at too low a level for further interpretation.

11. [11]

    DNA on the chef’s jacket was described as being greater than 100 million times more likely to have originated from the applicant rather than from an unknown, unrelated individual in the Australian population. Traces of DNA from at least one other individual were also recovered from the jacket, but at levels too low for further interpretation. DNA testing of the pants revealed at least four contributors at levels too low for interpretation, other than that the applicant could not be excluded as one of the contributors.

12. [12]

    A document setting out agreed facts was tendered pursuant to s 191 of the Evidence Act 1995 (NSW) (“the Act”), which stated that on 13 April 2016, police executed a search warrant at the applicant’s residence, which was also in Randwick. The only person present was a woman who had been the applicant’s partner in mid-March 2016, but who by the time of the search was living separately in the same apartment (“Ms X”). Police located numerous empty Uberbrau beer bottles in the kitchen area and in a room used by the applicant, as well as numerous chef’s shirts and pants.

13. [13]

    The agreed facts referred to Ms X being questioned by police on that date and that she stated that on Tuesday 15 March 2016, the applicant arrived home at about 1am and said that he had been bashed and robbed in a park in Randwick. He told her that the assailants had taken his bag which contained $270, but that he had left her iPad and his work clothes at his place of employment.

The applicant’s ERISP

1. [14]

   The applicant was arrested later the same day at his workplace, a restaurant in the Circular Quay area of the city, where he was head chef. He agreed to be interviewed. Police informed him that Ms X had said that he had arrived home at around 1am on 15 March 2016 and that he had told her he had been robbed of his backpack.

2. [15]

   The applicant responded that he recalled the incident, but not the date. He said that after work and before 10pm he had purchased Uberbrau brand beer from a supermarket in Randwick and then headed home. When he arrived there and realised that his partner was already home he walked off, because he wanted to drink the beer, which she did not approve of. He then walked around Randwick, drinking the beer.

3. [16]

   The applicant said that he was wearing jeans and a “small chequered shirt”. He had a backpack, which had in it his work clothes and “a couple of hundred bucks”. At some point, he decided to return home, but first changed back into his work clothes, so that he could pretend to his partner that he was arriving directly from his work. He changed in “somebody’s yard” in a “side street” behind the Coach and Horses Hotel along Alison Road. He indicated the position on a sketched plan he produced for police, which was tendered in the trial.

4. [17]

   As the applicant finished changing, he said that he was robbed by a person or persons unknown. He assumes he was hit on the head from behind, because the next thing he remembered was “waking up”. His backpack had been stolen, together with his jeans and shirt and the remaining bottles of beer he had purchased, which had been either in the backpack or in “the plastic bag they come in”. His only injury was a sore neck.

5. [18]

   The applicant said he walked home and told Ms X, who advised him to report the robbery to the police. He did not do so, because “what the hell are they going to do over a bag?” His wallet and phone were not in the backpack, only some items of clothing, and the backpack itself was not valuable, so he considered that there was little point in reporting it. Police told the applicant that Ms X had informed them that he had told her that one of his work shirts was stolen. (I note that this representation is contrary to what Ms X had told police, as related in the agreed facts.) The applicant agreed that “[i]t might’ve been likely” that a spare work shirt was in his backpack, as well.

6. [19]

   When told by police that Ms X had informed them that he had said the incident occurred in a park, the applicant explained that he had mentioned to her that earlier he had seen two men and two women walk across a park next to Randwick Police Station, and that one of the men looked “a bit dodgy”, so “this was the time when the park was mentioned”.

The applicant’s former partner (Ms X)

1. [20]

   Ms X was called by the prosecution. She stated that she had come to Australia from the Czech Republic about 13 years ago. As of March 2016, she had been living with the applicant for about 15 months. She said that she particularly recalled 14 March 2016, because on that date, two of her friends from the Czech Republic who had been staying with them, departed. She and the applicant farewelled them at Circular Quay at around 4pm. The applicant then went to work. She had expected him home about 10am, but he arrived “after 12. Would be maybe 12.30”.

2. [21]

   Ms X said that he told her he had been robbed “in the park”. He told her that luckily her iPad and his work clothes were not in the backpack. She told him he should report it to the police, and he replied: “Yes, I should”.

3. [22]

   Ms X agreed that the applicant’s alcohol consumption was an issue in their relationship, although she said she had not told him that he could not drink alcohol at home. She thought he was hiding his drinking from her; there had been occasions when she had seen him drinking outside the apartment building.

Grounds of appeal

1. [23]

   The applicant advances two grounds of appeal:

Ground 1: The trial judge’s direction concerning “physical characteristics”

1. [24]

   The complainant said she did not have any issues of vision impairment and described the lighting at the place of the attack as “not lit up but it’s not pitch black”. She said that she saw the assailant’s face over her left shoulder, which was about 30 centimetres away, just before she was pulled to the ground.

2. [25]

   She said that “the first thing I saw” was that the assailant had “big hair”; she agreed that when she made her statement, two hours after the attack, she had described the assailant as having “grey, thick, wiry hair”. In evidence, she qualified that recollection, saying: “I know he had grey bits to his hair”. She said that it was “standing up” from his head, indicating a distance above her head. Counsel varied widely in their estimates of her demonstrated length, from “an inch and a half” (3.8 centimetres) to “maybe about 15cm or thereabouts”. She agreed that in her statement, taken a few hours after the attack, that she had said “His hair stood up off his head about 5 centimetres”.

3. [26]

   The sandals worn by the complainant were open-toed. When she was examined by police, a hair was seized from a graze on her big toe. It was described by a police officer as “a grey, short, wiry hair”. The complainant described it as being of the same appearance as the hair of the assailant. The police officer who removed the hair noted that the complainant said, “I must’ve kicked out and kicked him in the head”. A police officer gave evidence that DNA could not be obtained from the hair. The hair itself was not tested for mitochondrial DNA and was not tendered.

4. [27]

   As to facial hair, the complainant said that the assailant had grey stubble. She said that she thought he was aged between 45 and 55 and had “like, light emotionless eyes”. Their colour was “blue or [light] grey. … I’m almost sure they were light blue eyes”.

5. [28]

   The complainant said that when she saw the assailant over her shoulder, his eyes were almost level with hers, so she thought his height was similar to hers. Her height was “not quite 5 foot 6”. Her sandals had a “very small heel” that were about half an inch, so she thought that her height at the time of the incident would have been about “5 foot 7”.

6. [29]

   The complainant weighed 60 kilograms and described the assailant as having around the same build to hers: “He wasn’t fat and he wasn’t big build. He was just average build and my height”.

7. [30]

   The complainant described the assailant’s clothing on the top part of his body as being dark in colour.

8. [31]

   Ms X gave evidence as to the colour of the applicant’s hair at that time. Her opinion was variously dark blonde, brown and dark brown. She was shown Exhibit N, which was a photograph of the applicant that was used in a photograph identification procedure with the complainant. She agreed that it accurately showed the “way that it was on 14 March 2016” but added: “He had probably, maybe longer hair at the time”. She later added: “he’s got grey hair, so when he’s got longer hair, it looks lighter”.

9. [32]

   Ms X said that the applicant would sometimes go to work with “a few days’ growth” and on that particular day, “I would think he had bit of beard, yeah”, explaining that she meant the type of growth she had earlier explained. (I note that Exhibit N shows the applicant with stubble and that in Exhibit O, which is a close-up of his face, the stubble appears as partly grey in colour.)

10. [33]

    The applicant’s date of birth was 19 May 1977, meaning that on 14 March 2016, he was aged 37. It was not suggested at the trial by the defence that the applicant’s age was inconsistent with the complainant’s estimate of the age of the assailant, being between 45 and 55 years. The appearance of the applicant in a photograph that was before the jury as part of the photograph identification procedure, which was taken on 13 April 2016 following his arrest, to my mind would be consistent with someone who appeared to be significantly older than 37 years.

11. [34]

    An agreed fact tendered to the jury pursuant to s 191 of the Act was that the applicant “has blue eyes”.

12. [35]

    In his ERISP, the applicant told police that his height was 5’6” and that he weighed “78, 80” kilograms. The jury had a full-length photograph of the applicant taken on the day of his arrest that suggested, in my opinion, that he was slight to average build.

13. [36]

    There was no evidence from Ms X as to what clothing the applicant was wearing when he arrived home.

14. [37]

    The applicant declined to take part in an identification parade. The complainant was taken through a photograph identification procedure on a computer on 14 April 2016. She viewed 20 photographs. Photograph 17 was of the applicant. It was not disputed that the photograph incorrectly depicted the applicant as having dark eyes, for technical reasons apparently to do with the lighting when the image was captured. It was for this reason that the agreed fact as to the actual colour of the applicant’s eyes was tendered.

15. [38]

    A video of the complainant viewing the photographs, during which she commented on some of them, was tendered. After the viewing, police asked the complainant certain pro forma questions, including: “Have you seen any of these persons under any circumstances?” She replied: “I feel like I’ve seen some of their eyes but it’s their hair that’s throwing me off”. She was cross-examined about her participation in the photograph identification procedure, in particular that response, and asked if it was prompted by her looking for hair of the appearance that the assailant had, which she had described as “grey, tall, wiry hair”. She responded: “I agree, but it wasn’t the only thing I was looking for in the picture”.

16. [39]

    Having viewed all the photographs, the complainant went through them again, commenting on some of them to the police officer who facilitated the procedure. At the outset, she said of the assailant: “He had really blue eyes” and “He definitely had blue eyes”.

17. [40]

    When the complainant came to the photograph of the applicant (photograph 17), she said:

18. [41]

    The complainant made observations about many of the other photographs that were also, in part, confirmatory of some features being the same as those of the assailant. For example, at photograph 16, the complainant is heard to say, “See, he looks – those eyes – those dead eyes look familiar, but the hair – it’s just thrown me off”. At photograph 18, she said, “And like – he’s got the kind of dead eyes and weird hair, but he looks massive”. At photograph 19, she said, “That hairline looks right, he’s got the proper hair. But this big cut in his neck – I don’t remember seeing that. But he's got the right eyes”. At photograph 20, she said, “And this guy’s – again, are they brown eyes? But he looks the right frame, and the right shaped face”.

19. [42]

    The defence submitted that the complainant’s account of the assault was such that one would expect the assailant to have the complainant’s blood on him, so that if the assailant was the applicant, blood would have been visible to Ms X when he arrived home shortly afterwards. In cross-examination, Ms X said that when the applicant arrived home, she did not notice any blood on him.

20. [43]

    The defence submitted to the jury that the complainant’s evidence was that “by the end of the incident she was covered in blood” and referred to evidence from Ms X to the effect that if she had seen blood on the applicant when he arrived home that evening, she would have told police when they interviewed her on 13 April 2016. The defence theory that blood would be expected on the assailant appears to arise from the complainant’s evidence that when she was at Maroubra police station, she was “covered in blood”. Most of her injuries were captured in photographs tendered in the trial. They comprised a circular graze to her elbow which she said was sustained when she was pulled to the ground, a small abrasion to her right big toe and scratch marks on her neck. The complainant also suffered pain to the palms of her hands, being the area between the wrists and little fingers, which she explained occurred when she crawled quickly on the ground to grab the beer bottle.

21. [44]

    Similarly, the defence suggested that one would expect the assailant to be sporting visible injuries to his face and head immediately after the incident, from the complainant hitting and kicking him. Ms X said that when the applicant arrived home on 15 March, she did not notice any injuries to his face and head, including any redness, bruising or scratches to his face.

Direction regarding identification

1. [45]

   The trial judge said to the jury that the identity of the assailant was “one of the major disputes” between the parties and that the Crown’s case as to the applicant being the assailant was circumstantial. His Honour summarised the Crown case as to the nature of the circumstantial evidence and the defence case in response. That was followed by a direction on circumstantial evidence which was uncontroversial and not the subject of complaint. His Honour’s summary of the Crown case as to the elements of circumstantial evidence replicated part of the Crown’s address, which can be summarised as follows:

2. [46]

   The trial judge went on to summarise the Crown and defence cases in respect of what the complainant had said during the photograph identification procedure in relation to various photographs, including that of the applicant.

3. [47]

   His Honour then gave the jury a direction which he told them to apply to their consideration of the circumstantial evidence relied upon by the Crown, as to the complainant’s description of the assailant, as well as the evidence of what she said during the photograph identification procedure as to similarities and dissimilarities of the physical characteristics of those depicted in a number of the photographs. The direction was in the following terms (paragraph numbers and emphasis added):

Statutory provisions

1. [48]

   Identification evidence is defined in the Dictionary to the Act as follows:

2. [49]

   Section 116 of the Act provides:

3. [50]

   Section 165 of the Act relevantly provides as follows:

4. [51]

   The trial judge canvassed with counsel their views on the appropriateness or otherwise of a direction. His Honour noted that some of the evidence required a direction pursuant to s 116 of the Act, and some descriptive evidence that did not, may require a direction pursuant to s 165. His Honour confirmed with counsel that both parties sought a direction in relation to both the evidence of the complainant’s observations of the assailant and what she said during the photograph identification procedure, and decided to fashion one based on the standard direction that is often given pursuant to s 116. Accordingly, the terms of the direction closely followed a standard direction on identification evidence, with the substitution of the words “physical characteristics” for “identification evidence”.

5. [52]

   In written submissions in support of ground 1, counsel for the applicant submitted that the complainant’s description of his hair, which was a prominent feature of her observation of him, was significantly different from the tendered images of the applicant’s hair as of the date of his arrest and the description of it at the relevant time by Ms X. Accordingly, to the extent that the direction cautioned the jury against an uncritical acceptance of the complainant’s evidence of the assailant’s physical characteristics, it undermined the force of this key discrepancy, which was a cornerstone of the defence case.

6. [53]

   The applicant relied upon observations by Simpson J (as her Honour then was) (Spigelman CJ and Johnson J agreeing) in Collins v R [2006] NSWCCA 162, which concerned descriptive evidence that was exculpatory for the defence. Her Honour said:

7. [54]

   The applicant’s counsel submitted that in this case it was unfair to give the direction, because of its adverse impact on a critical element in the applicant’s case which was exclusively dependent on the complainant’s account. In Collins, as well as the victim’s descriptive evidence of the assailant, there was also exculpatory descriptive evidence by two nearby witnesses of a person who was accepted as being the offender. The applicant submitted that this was a distinguishing feature that would warrant a different outcome in this case, as opposed to the outcome in Collins.

8. [55]

   In R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455, the appellant had been convicted of murder of his wife. Evidence was led from a witness, Mr Dawson, who said he saw and had a conversation with a woman whose description fitted that of the victim, at a time and place that, if correct, exonerated the appellant. The trial took place 18 years after the events in question, so an additional factor was reliability of memory. The trial judge, Kirby J, agreed that the evidence did not come within the definition of “identification evidence” so that ss 116 and 165(1)(b) of the Act did not apply, but nevertheless found that a direction was appropriate pursuant to s 165(1), namely, that it was evidence of a kind that may be unreliable. The appellant submitted that where such evidence assists the defence rather than the prosecution, it was inappropriate to do so and the direction should not have been given. Wood CJ at CL and Howie J rejected the appeal, stating:

Consideration

1. [56]

   The complainant’s evidence that was the subject of the direction was of two types: her description of the assailant (“descriptive evidence”) and her opinion that in some respects the male portrayed in photograph 17 resembled the assailant (“resemblance evidence”). Some of the complainant’s observations made during the photograph identification procedure came within the first type; for example, her comments that the assailant had blue eyes and was not of a big build.

2. [57]

   Three of the complainant’s observations in relation to photograph 17 come within the definition of identification evidence in the Dictionary to the Act, namely, an assertion to the effect that a defendant visually resembles a person at the place where an act connected to the offence was done, which, in this case, was the assailant. Two of the complainant’s observations in relation to the applicant’s hair (“This guy’s hair’s right”) and his apparent build (“Looks like he’s the right frame”) directly contributed to that assertion. Inferentially, there is a third, consequent to the complainant’s observation that: “I can’t see his eyes. Don’t know if they’re blue or…”. The evidence before the jury was that the photograph incorrectly portrayed the applicant’s eyes as brown, when they were in fact blue. An available inference from these words of the complainant was that, if the eyes of the person in photograph 17 were blue, that was a further point of resemblance of that person to the assailant.

3. [58]

   A trial judge is obliged by s 116 of the Act to direct the jury that there is a special need for caution before accepting evidence of resemblance and the reasons for that. This was done, although the first paragraph of the direction identified it as applying only to evidence of physical characteristics, rather than resemblance evidence as well. However, both types were identified in the second paragraph.

4. [59]

   In par (5) of the direction, his Honour said, “Was the person identified a stranger to [the complainant]? Presumably, his Honour meant to say “described”, rather than “identified”. However, the context of the balance of the paragraph in particular, and the direction as a whole, makes clear that he did not mean that the complainant “identified” the applicant as the assailant.

5. [60]

   As this Court said in Rose and Collins, a trial judge is not obliged to give a direction in respect of descriptive evidence. His Honour determined to do so, it having been sought by both the Crown and defence. As descriptive evidence does not come within the definition of identification evidence in the Act, it is not subject to s 116 of the Act, but if, pursuant to s 165(2), a party requests a direction and the trial judge finds that the evidence in question comes within the terms of s 165, the court is obliged to do so. As Rose makes clear, descriptive evidence that has the potential to exculpate an accused may come within s 165(1) of the Act.

6. [61]

   In view of what was said in the majority judgment in Rose at [297], it might be thought that the direction inappropriately advised the jury that mistaken descriptions of “physical characteristics” had led to wrongful convictions in the past. However, the majority judgment specifically focussed on a direction referring to mistaken identification leading to erroneous convictions as being inappropriate. The direction did include a warning to the jury for the need for caution, which the majority, at [297], stated would not always be necessary, but in my opinion that does not assist the applicant.

7. [62]

   In my view, there is a fundamental problem with the applicant’s submissions on ground 1. The ground is advanced on the basis that the direction had the potential to undermine the reliability of the complainant’s description of the assailant’s hair. However, a reading of the direction makes clear that it would have had the opposite effect, namely, it would have highlighted the reliability of that particular observation.

8. [63]

   In pars (8) and (9), his Honour noted that distinctive or special features of the person being described may enhance the reliability of descriptive evidence, and then identified only one feature of the complainant’s observations as coming in that category, being her description of the assailant’s hair. Similarly, at par (11), the trial judge directed the jury that freshness of complaint was relevant to the reliability of the evidence, noting that within minutes of the attack, the complainant had “conveyed what she considered to be a prominent feature to others, being the hair”.

9. [64]

   In my opinion, having regard to the terms of the direction and assuming the significance placed by the applicant in his case upon the complainant’s observations of the assailant’s hair, the direction could only have enhanced that case as it went to the jury.

10. [65]

    Accordingly, I would reject ground 1.

Ground 2: The verdict is unreasonable having regard to the evidence in the trial

1. [66]

   At the hearing of this matter, counsel for the applicant submitted that the first ground was “part and parcel” of the second; that the other aspects of circumstantial evidence, when considered individually and collectively, were so “remarkably weak” that, the direction having deprived the applicant of “the most essential feature of the trial”, the verdict was unreasonable or could not be supported, having regard to the evidence.

2. [67]

   On such an application, the Court is required to make an independent assessment of the evidence. If, having taken into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen or heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside: SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 per French CJ, Gummow and Kiefel JJ at [11]-[14].

3. [68]

   Where the Crown relies on circumstantial evidence, the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence: Dickson v R [2017] NSWCCA 78 at [84], considering R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46]-[48].

4. [69]

   In light of the summary of the evidence earlier in this judgment, I draw the following conclusions.

5. [70]

   The evidence establishes that the applicant had the opportunity to commit the offence, both temporally and geographically.

6. [71]

   The complainant’s description of the assailant coincided with the evidence of the applicant’s appearance on 14 March 2016 as to his age, height, build, eye colour and facial hair, being grey stubble.

7. [72]

   As to his clothing, the complainant said the assailant was wearing dark clothing on the top part of his body. There was no evidence from Ms X as to what the applicant was wearing when he arrived home. The applicant gave evidence that he had been wearing two different outfits late that night. When he arrived home, he was wearing his chef’s jacket, which was white, and pants, which he said he had changed into shortly before. He said he had changed out of a “chequered” shirt and jeans and that those clothes were stolen. There was no evidence as to how dark or light the shirt was.

8. [73]

   As to the assailant’s hair, the complainant’s evidence was in summary that he had “thick, wiry grey hair” standing up about 5 centimetres above his scalp. It was open to the jury to find that the complainant’s description was inconsistent with the evidence of the applicant’s hair as of the date of the attack, which was the photograph of the applicant taken on the date of his arrest and the evidence of Ms X. However, there was a degree of ambivalence in this evidence that also left it open to the jury to find that the complainant’s description was not inconsistent with this evidence. As noted earlier in my judgment, Ms X described the applicant’s hair at the date of the assault as being “probably, maybe longer” than it appeared in Exhibit O which was also photograph 17. As well, although Ms X variously described the applicant’s hair colour as dark blond, brown or dark brown, she also said he had grey hair and when it was longer, it was lighter.

9. [74]

   In any event, the fundamental problem with the applicant’s case in relation to the hair is the evidence of what the complainant said, unprompted, when she viewed his photograph: “This guy’s hair’s right”. I consider that to be persuasive evidence that the applicant’s hair was a further point of similarity between the assailant and the applicant.

10. [75]

    The case for the applicant rested primarily on his recorded explanation to the police, that is, that he was mugged nearby and robbed of some of the items that were located at the scene of the offence, leading to the inference that whoever robbed him was the assailant. The weight one would place on that explanation is tempered by the following considerations. Firstly, the applicant said he was knocked out by a blow to the head that caused him to fall to the ground in a front yard, where he was getting changed. However, he did not seek medical assistance, claiming that his only injury from the blow to his head and the fall was a sore neck. Secondly, the applicant was robbed of his backpack and $270 cash, and although he was advised to report it to police he did not do so, because he did not think it was worth it. Thirdly, the applicant did not explain why he had $270 in his backpack, rather than in his wallet. Fourthly, the applicant’s wallet and phone were in the clothing he had just changed into and, although he was unconscious on the ground and the motive was clearly robbery, they were not stolen. Fifthly, the notion that the applicant would change into a different set of clothing in a public place, being the front yard of a building, is difficult to accept.

11. [76]

    The applicant also relied on the absence of visible injuries when he arrived home, in light of the complainant’s evidence that she thought she must have made contact with the assailant when she was hitting and kicking out, although the complainant had said that she did not actually feel any contact being made. She also said that her punching and kicking were not delivered with “full force” and that she felt “exceptionally weak” because of her state of mind at the time. Her conclusion rested on the fact that the applicant stopped his attack which allowed her to escape, and the hair that was found on her big toe, not because she felt any contact. As a matter of logic, assuming that her foot had made contact with a part of the assailant’s head covered in hair, any resulting bruise or other injury may not have been visible.

12. [77]

    The applicant’s contention that, if the applicant was the assailant, one would have expected Ms X to have noticed the complainant’s blood on the applicant when he arrived home, does not necessarily follow from the evidence. The blood produced from her wounds, primarily the injury to the complainant’s elbow when she fell to the ground, would not necessarily have found its way onto the assailant or, if it had and the assailant was the applicant, could have been cleaned off before returning home.

13. [78]

    Necessary elements of the count on the indictment was that the applicant recklessly inflicted actual bodily harm. That intent and degree of harm is satisfied at a minimum by the complainant’s evidence that she was pulled backwards by the assailant onto the ground, causing the injury to her elbow.

14. [79]

    A further element is that the assault was committed with the intention of having sexual intercourse with the complainant. That is satisfied by the evidence of the assailant grabbing her left breast and, after pulling her to the ground, pulling at her cardigan and trying to pull her dress down and, having failed to do so, then moving around to her front and pulling at her dress. The only reasonable inference in all the circumstances is that the assailant dragged her to the ground in order to have sexual intercourse with her.

15. [80]

    For these reasons, I am satisfied that there is no reasonable inference inconsistent with the guilt of the applicant on the first of the alternative counts on the indictment. Accordingly, I would reject ground 2

16. [81]

    I would make the following orders: