SUPREME COURT OF QUEENSLAND

1. THE COURT:  The appellant was convicted in the Townsville District Court on 24 October 2000 of the offences of burglary and rape committed on 12 October 1988.  The appellant's sole ground of appeal is that the jury verdict was unreasonable and against the weight of the evidence.

2. The complainant lived alone in a flat in Mitchell Street, North Ward. On 12 October 1988 she arrived home at about 9.30 pm and had a shower.  She saw a shadow or a flash across the shower screen and stepped out of the shower to look around.  Seeing nothing she returned to the shower.  Moments later she saw a man's face peering over the top of the shower unit.  The man, whom she described as aboriginal, put his hand over her mouth and jabbed her in the side with a sharp object.  She tried to wash the soap off her face and turn the taps off.  The assailant dragged her out of the shower and threw her on the bed, telling her not to scream.  He placed a pillow over her head with one hand and used a sharp weapon with the other.  The complainant struggled and wrestled with the assailant on her bed.  After a time he removed the pillow from her head and tried to kiss her.  She tried to grab the weapon which she identified as a corkscrew.  As they struggled her assailant grabbed her by the throat and was strangling her.  She managed to raise her knees and push him off the bed.  He hit his head on a wall but quickly resumed his attack.  The complainant was unable to continue to resist his violence;  he forced his penis inside her vagina and had sexual intercourse.  She was unsure whether he ejaculated but when he was finished he did up his pants and fled, telling her not to follow nor to call the police.  The complainant nevertheless chased him, screaming for help until she realized she was still naked.  She returned to the unit to wrap herself in a towel and then resumed her chase.  She saw the appellant run around the front pathway of her unit but did not see him drop anything before he fled the scene;  the lighting was poor.

3. About a half an hour earlier Ms Pavlides, who also lived at North Ward, arrived home to find an unknown intruder in her flat. She fled and returned to her unit about 10 minutes later; her two wallets and a corkscrew had been stolen.

4. Police found Ms Pavlides' wallets on top of a manicure set stolen from the complainant's bathroom in an aperture in a besser block wall adjacent to the front pathway along which the rapist fled. Police also found a corkscrew in grass beside the pathway. Ms Pavlides identified the corkscrew as hers but was unable to point to any particular distinguishing feature; she assumed it was hers because the police showed it to her with her two wallets; she consistently maintained the corkscrew was hers. The rapist had the opportunity to hide the wallets and manicure set either before the attack on the complainant or afterwards, when the complainant returned inside for a towel.

5. The complainant was unable to identify the corkscrew as the one used as a weapon by the rapist but said it was similar.

6. The appellant's fingerprint was located on the wallet found immediately on top of the manicure set taken from the complainant's unit.

7. A head hair was found on the top sheet of the complainant's bed. This hair was described by forensic scientist Mr Freney, who compared it to the appellant's hair, as "an excellent match" but he could be no more conclusive than to say that he could not exclude the appellant as a possible donor of that hair. The microscopic examination of hair in 1988 could not provide a definitive analysis of whether a particular hair came from one person as opposed to another; it merely provided a determination as to whether a donor hair was consistent or inconsistent with the located hair.

8. Vaginal swabs taken from the complainant indicated the presence of semen and Group O secretors. Both the complainant and the appellant were Group O secretors. The swabs were consistent with the appellant's blood group and 50 per cent of the male population. The testing used in 1988 pre-dated the DNA technology now used to examine body samples.

9. During a search of the appellant's residence the next morning police found at the bottom of his wardrobe, a black jumper, a singlet, and some men's underpants which were all wet. The night of 12 October 1988 was fine and dry.

10. The appellant did not give or call evidence.

11. Shortly before the attack on the complainant the two wallets and the corkscrew were stolen from Ms Pavlides' unit which was near the complainant's unit. The rapist used a corkscrew as a weapon during the attack. A similar corkscrew, and one identified by Ms Pavlides as that which was stolen from her unit, was found near the pathway along which the rapist fled immediately after the attack. The complainant's stolen manicure set was found in an aperture in a wall adjacent to that pathway, underneath the wallets stolen from Ms Pavlides. The appellant's fingerprint was found on the wallet immediately on top of the complainant's manicure set. This fingerprint provides a link between the two sets of offences which occurred within a short space of time; the only rational inference from this evidence is that the same offender committed both offences; in the absence of any evidence of innocent explanation the offender must have been the appellant whose fingerprint was found on one of the wallets.

12. This combination of facts, in the absence of any evidence consistent with innocence, is sufficient to support the jury's guilty verdict. The following additional facts, whilst of little weight alone, nevertheless add some additional support to that conclusion. The head hair in the complainant's bed was consistent with the appellant's hair. The semen in the swabs taken from the complainant was consistent with the appellant's blood type. The wet clothes found at the bottom of the appellant's wardrobe were consistent with either the appellant having got wet in the shower during the attack or with his washing the clothes after the attack to remove traces of evidence such as semen, or with both these possibilities.

13. The relevant test is that set out in R v Jones^[1] which is in the following terms:

… whether [the Court of Appeal] 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 (36).  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, … "

and:

"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 (40)."

14. Applying this test it is the view of the Court that the jury's verdict was reasonable and supported by the evidence. The appeal against conviction should be dismissed.

15. Order

Appeal dismissed.