FEDERAL COURT OF AUSTRALIA Parker v The Queen [2002] FCAFC 133 CRIMINAL LAW – application for leave to appeal against conviction – application filed fourteen months after conviction recorded – consideration of explanation for delay – certain inadmissible evidence received – whether inadmissible evidence might have affected jury – consideration of merits – whether any question of a miscarriage of justice. Federal Court Rules, Order 52 r 15 Administrative Decisions (Judicial Review) Act 1977 (Cth) Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, referred to Jess v Scott (1986) 70 ALR 185, cited Salter Rex & Co v Ghosh [1971] 2 QB 597, cited Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257, cited Ratnam v Cumarasamy [1964] 3 All ER 933, cited Zocchi v The Queen [2000] 116 A Crim R 245, cited Jeffers v R (1993) 112 ALR 85, cited Williams [2000] 119 A Crim R 490, cited R v Lawrence [1980] 1 NSWLR 122, applied Gavin v The Queen (1992) 6 WALR 195, cited JOHN BARRINGTON PARKER v THE QUEEN No A 73 of 2001 SPENDER, O'LOUGHLIN, DOWSETT JJ CANBERRA 17 MAY 2002 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 73 OF 2001 APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION BETWEEN: JOHN BARRINGTON PARKER APPLICANT AND: THE QUEEN RESPONDENT JUDGES: SPENDER, O'LOUGHLIN, DOWSETT JJ DATE OF ORDER: 17 May 2002 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The application for an extension of time within which to appeal is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 73 OF 2001 APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION BETWEEN: JOHN BARRINGTON PARKER APPLICANT AND: THE QUEEN RESPONDENT JUDGES: SPENDER, O'LOUGHLIN, DOWSETT JJ DATE: 17 May 2002 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT: 1 John Barrington Parker ("the applicant") was indicted before Miles CJ in the Supreme Court of the Australian Capital Territory on 11 October 2000. He was charged with having, on 7 September 1995 at Canberra, engaged in sexual intercourse with a woman without her consent and knowing that she did not consent. To preserve her privacy, it will be appropriate and sufficient to refer to the woman merely as "the complainant". The applicant pleaded not guilty and his trial proceeded over a period of four days before the learned trial judge and a jury of twelve. 2 On 16 October 2000, the jury returned a verdict of guilty and on the following day, 17 October, his Honour sentenced the applicant to imprisonment for eight years with a non-parole period of five years, to commence on 17 October 2000. The applicant appealed against his sentence on the ground that it was manifestly excessive. That appeal was unanimously dismissed by a Full Court of this Court on 12 April 2001. As will become apparent in due course, it is of significance to note that the applicant had the benefit of legal representation throughout his trial and for the purposes of his appeal against sentence. 3 On 21 December 2001, in excess of fourteen months after the conviction had been recorded against the applicant, his solicitor, Ms Saunders, filed in this Court an affidavit to which was attached a draft notice of appeal against conviction. Ms Saunders deposed that she first received instructions in the matter on 26 November 2001 when she conferred with a representative of the applicant. She said that she was instructed on that day to obtain an advice "on the merit or otherwise" of filing an application for leave to appeal against the applicant's conviction. Ms Saunders further deposed that she had a telephone conversation with the applicant, who was then an inmate of the Goulbourn gaol, on 12 December 2001. In recounting the substance of that conversation, she said that the applicant told her that he had "recently come to the view that he has at least one ground of appeal in relation to his conviction". On the other hand, he also told her that his senior counsel, who had acted on his behalf on the appeal against sentence (and who is not his present counsel) had advised him that "he had no grounds for appeal against conviction and, accordingly, no such appeal was brought". Ms Saunders concluded her affidavit by saying that on 14 December 2001, she received written advice from senior counsel in which he advised that he believed that "there was an arguable ground of appeal evident on the face of the transcript". She said that upon receiving the advice of senior counsel, the applicant instructed her to file an application seeking an extension of time within which to appeal against his conviction. That occurred, as has already been mentioned, a few days later on 21 December 2001. 4 The grounds of the applicant's intended appeal, as set out in the annexure to Ms Saunder's affidavit, are as follows: "1. There has been a miscarriage of justice in the admission of evidence of a conversation between the applicant and his wife following a newspaper report in which [she] made accusations that he had committed the subject offence. 2. The applicant did not receive a fair trial. 3. The conviction was unsafe and unsatisfactory." 5 The Rules of Court provide that the applicant's appeal should have been instituted within twenty-one days of the recording of the conviction. However, the Rules contain a provision for an extension of time in appropriate circumstances. Order 52 r 15 of the Federal Court Rules provides: "(1) The notice of appeal shall be filed and served: (a) within 21 days after: (i) the date when the judgment appealed from was pronounced; or (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." 6 In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The matters which attracted his Honour's attention were set out at 348-349: 1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time; 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; 4. however, the mere absence of prejudice is not enough to justify the grant of an extension; and 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. 7 There is no reason why these matters or guidelines, even though they were composed with respect to an application in a civil matter, should not also apply (and several authorities have decided that they do apply) in the criminal jurisdiction, save that where the liberty of the individual is at stake, the Court may be a little more lenient to an applicant in the exercise of its discretion. 8 Jess v Scott (1986) 70 ALR 185 was another civil case in which the judge at first instance had dismissed two proceedings that had been brought by the applicant. The applicant's solicitor received, in due time, instructions to file a notice of appeal to a Full Court of this Court but, due only to the fault of the solicitor, the notice of appeal was filed on the day after the last day limited for its filing. The applicant sought an extension of time pursuant to O 52 subr 15(2) of the Rules of Court. It was accepted by the Court that the delay in the filing of the notice was the fault of the applicant's solicitor; it was also accepted that the respondent had not suffered any prejudice as a result of the delay of one day. Nevertheless, the respondent's opposition to the application was based substantially upon an argument that the words "for special reasons" in subr 15(2) should be given a stringent interpretation. The Full Court traced the history of those cases where delay had occurred through the fault of a legal adviser, noting how the hard-line views of earlier times had softened materially, as reflected by the words of Lord Denning in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601: "So Dr Ghosh is out of time. His counsel admitted that it was his, counsel's, mistake, and asked us to extend the time. If Dr Ghosh had any merits which were worthy of consideration, we would certainly extend the time. We never like a litigant to suffer by the mistake of his lawyers." 9 So far as they are relevant to the facts of this case, those remarks point, on the one hand to an attitude of leniency, so long as, on the other hand, it appears that there is merit in the applicant's case. The attitude of the Full Court in Jess v Scott was that: "… leave to appeal out of time is to be determined by the court's view of the demands of justice in accordance with a broad judicial discretion, and not simply upon the application of any verbal formula …" 10 Their Honours quoted with approval the remarks of McInerney J in Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262-3: "The object of the rule is to give the court a discretion to extend the time with the view to the avoidance of an injustice … One object of fixing times under the rules is to achieve a timetable for the conduct of litigation in order to achieve finality of judicial determinations. A successful litigant has an interest in knowing that a claim against him has been determined and that he is no longer 'at risk' … Higinbotham J, referred to the interest of litigants in achieving finality of determination when he said, in Youngman v Melbourne Storage Co Ltd (1885) 7 ALT 53 at 54: 'When the time has been allowed to elapse that gives the defendant a vested interest in the judgment, his vested interest ought not to be disturbed unless there is some good reason for disturbing it.' The phrase 'good reason' imports, I think, a consideration of whether justice as between the parties is best served by granting or refusing the extension sought …" 11 The Full Court also quoted with approval, the advice of the Privy Council in Ratnam v Cumarasamy [1964] 3 All ER 933 at 936: "The rules of Court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a timetable for the conduct of litigation." 12 In Jess v Scott the Court was of the opinion that the expression "special reasons" is intended to distinguish the case from the usual course, according to which the time is twenty-one days. It went on to say, at 193: "But in may be so distinguished (not necessarily will, for the rule gives a discretion) where the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary." 13 As a subsequent Full Court noted in Zocchi v The Queen [2000] 116 A Crim R 245 at 246 ("Zocchi"), Jess v Scott is authority for the proposition that: "… the Court's power to extend time is a flexible one, designed to enable substantial justice to prevail over technical default." Zocchi was a case in which the applicant was successful in obtaining an extension of time within which to file his appeal against his conviction. There were several explanations for the delay in Zocchi, the most dramatic being that, whilst in gaol, the applicant had been stabbed seventeen times and hospitalised for about twelve months. 14 Jeffers v R (1993) 112 ALR 85 was a unanimous decision of Deane, Dawson and Toohey JJ. It concerned an applicant who had elected, "based upon the risks of a greater sentence upon conviction after retrial…" not to appeal against his conviction. When the Crown appealed against the alleged inadequacy of his sentence, the applicant changed his attitude and sought leave to file an appeal against his conviction out of time. The Queensland Court of Appeal rejected his application but the High Court allowed his subsequent appeal. Their Honours noted the leniency of the original sentence and said that the basis upon which he made his decision not to appeal against his conviction had "changed entirely" when the Crown filed its notice of appeal. The applicant had acted swiftly and there was: "… no extended delay which would require the applicant to show 'exceptional' circumstances." 15 The two factors that were at the forefront of the Court's decision were that the delay was not long and it had been adequately explained. However, their Honours added that: "… should the applicant be unable to demonstrate any prospect of success in the appeal which he seeks to prosecute he would, for that reason, not be entitled to an extension of time, despite the other circumstances." As the Court of Appeal had not addressed the issue of likely success, the members of the High Court said that there was no occasion for them to do so. 16 A Full Court of this Court in Williams [2000] 119 A Crim R 490 considered the expression "special reasons" when discussing whether an extension of time should be granted to file a notice of appeal approximately eight months after the pronouncement of judgment. The applicant had claimed that his delay had been occasioned because he, having applied for legal aid, had to wait from 4 March to 7 December 1999 for a favourable answer. His counsel argued that the fact that the applicant was in prison and without resources constituted "special reasons". He also relied on the fact that the case was not one of inadvertence or procrastination. The Court noted that the prosecution had identified four matters that it claimed should be considered when determining an application for an extension of time to appeal. They were the length of the delay, the explanation for the delay, the prejudice (if any) to the Crown and the prospect of success of an appeal should leave be granted. Whilst the Court accepted that there was "obvious substance" in the Crown's submissions, it concluded that an extension of time should be granted because it had formed the view that if the applicant were to be permitted to appeal "his appeal should succeed". 17 What the Court will look for, above all else, in an application to extend the time within which to file a notice of appeal against a conviction which has led to a term of imprisonment, is satisfaction that there has not been, and will not be, a miscarriage of justice if leave is refused. This was emphasised by Nagle CJ at CL and Yeldham J in R v Lawrence [1980] 1 NSWLR 122 at 165-166 when they said: "In these circumstances, we think the appropriate course is to refuse the applicants the extension of time which they seek, having regard to the delays and the failure to comply with orders of this Court to which we have earlier referred. But, before doing so, we have satisfied ourselves that no injustice has been caused to the applicants, and that no miscarriage of justice has occurred." 18 Seaman J in the Western Australian Supreme Court went somewhat further – perhaps unnecessarily – in Gavin v The Queen (1992) 6 WALR 195 at 203 when he said: "In my view, the applicant must show that there will be a manifest miscarriage of justice if he is not permitted to appeal …" 19 There will always be an onus on the applicant to explain the reasons for the delay – and the question of prejudice to the Crown cannot be overlooked. However, these and like matters cannot prevail if the Court is of the opinion that there is a reasonable probability that there might be a miscarriage of justice if leave is not granted. the case for the crown 20 Shortly after 8.30 pm on Thursday 7 September, 1995 the complainant, who was aged fifty-nine years at the time, returned to her home at Monash (a suburb of Canberra). She parked her car and opened her front door. She then remembered that the garbage collection was scheduled for the next morning so she took her garbage bin out to the street. Whilst doing this, she left the front door open. After taking out the bin, the complainant collected her handbag and some parcels from her car and entered the house which was in darkness. She took a step inside and was grabbed in a bear hug from behind by an assailant. The complainant struggled and tried to hit her attacker with her parcels. He said "Drop your parcels". The complainant dropped them and the assailant then pushed her into the lounge room and ordered her to lie down on the floor, face down. The complainant begged her attacker to let her go, but did as she was told. The attacker sat on her with his legs straddled across her and with his hands on her shoulders. Eventually, he let her get up, but kept a firm hold on her. He then told her to go to the bedroom, pushing her down the hallway and rejecting her attempt to enter a spare bedroom. They entered the complainant's bedroom where her assailant told her to lie on the bed. She did so – face down – pleading with him not to hurt her. He replied: "If you don't do what I tell you, I will hurt you." He removed her slacks, her stockings and her shoes. He then put his hands on her breasts and undid and removed her brassiere and blouse. 21 According to the complainant, her assailant was wearing woollen gloves when he first took hold of her inside the house. However, he removed them, as he was no longer wearing them when he and the complainant were in the bedroom. The complainant was only able to make limited observations of her attacker. She observed that he was wearing dark clothing – it was either navy or black – and that he wore a jacket and dark tracksuit pants. He wore something like a balaclava over his head. The complainant said that her attacker was light skinned, about five foot seven or eight inches tall and of a slight build. He had a soft voice with an Australian accent. He did not smell of cigarettes, alcohol or after shave lotion. He appeared to be around twenty or thirty years of age. 22 The complainant said that her assailant inserted a finger into her vagina and then tried, without success, to penetrate her vagina with his penis. She then felt something being pulled over her head; it transpired that it was a body suit belonging to the complainant which she had left on the clothesline that day. The assailant rolled the complainant over onto her back. He continued trying to penetrate her vagina with his penis but was unable to do so. He then rolled her back onto her stomach and placed a pillow over her head; he told her not to move. She heard him go to her en-suite bathroom. When he returned to her, the complainant believed that he had the liquid soap dispenser which had been in the bathroom; she felt that he used the liquid soap to lubricate her vagina and anus, but she agreed that she was not sure and no traces of soap were found on the swabs that were taken from her body. The complainant said that he then put his finger and later his penis in her vagina. He also put his finger and later his penis in her anus. She did not think however that he ejaculated. After a few minutes the assailant stood up and said "don't move – I don't want you to move for 10 minutes." He also said "I want money" and the complainant heard a drawer open. She replied "I have no money". However, he found her handbag near the front door and removed her wallet which contained various credit cards. The cards were found some time later in a stormwater drain not far from her house. 23 The complainant stayed in her bedroom until she felt that her assailant had left. After a while, she got up, went to the various rooms and, satisfied that he had left, she telephoned the police. She was not able to identify her assailant either during the course of the assault or subsequently. 24 The police attended the complainant's premises as a result of her telephone call. A number of fingerprints were found and, in particular, a fingerprint was found on the liquid soap dispenser which was on the top of a bedside drawer in the complainant's bedroom. The significance of this fingerprint will become apparent in due course. 25 In August 1999, some four years after the attack upon the complainant, and as a result of the telephone call from the applicant's wife, further inquiries were made by the police. As a result of those inquiries, the applicant was arrested on 23 September 1999 and his fingerprints were taken. Federal Agent Bush of the Forensic Services Division of the Australian Federal Police examined both sets of prints and concluded that the fingerprint on the front label of the dispenser was made by the right thumb of the applicant. A second print was found on the other label of the dispenser but Mr Bush said that there were insufficient features in the print for a comparison to be made. Mr Bush gave evidence that a fingerprint, which consists mainly of water and skin tissue, will naturally decompose. The rate of decomposition is influenced by several factors, one of which is the relevant environment. Mr I S Forrester, a Senior Fingerprint Expert from the Melbourne Fingerprint Branch of the Victorian Police was also called as a witness for the Crown; he confirmed that the fingerprint on the soap dispenser matched the print of the right thumb of the applicant. 26 The applicant's wife gave evidence for the Crown. She said that she and the applicant had separated on 4 July 1999 and that in the following month, on 19 August, she had made a report to the police. At the time of her report, she also gave the police a newspaper clipping which contained details of the rape of the complainant. Other evidence established that the article had appeared in a local newspaper on 19 September 1995. Under objection from counsel for the applicant, the applicant's wife gave evidence that she questioned her husband about the information in the newspaper clipping but he denied any knowledge of the incident. As the first ground for the extension of time within which to appeal indicates, it is this evidence, and what followed from it in the trial, that is the basis for the present application. 27 On 7 September 1995, the applicant was living with his wife and family at Oxley which was a three minute walk from the complainant's townhouse. The applicant was sports minded and jogged regularly. According to his estranged wife, he was dressed for and told her that he was going out jogging on the night of the attack upon the complainant. Her friend, Margaret, visited her that evening and confirmed that the applicant was not at home during her visit. After he separated from his wife, the applicant lived with his mother. Her home was searched by the police and they recovered a dark blue jacket and a balaclava. His wife identified the jacket as one that he wore when he was jogging. the case for the applicant 28 The applicant's wife said that her family used liquid soap and that she mainly did her shopping at Woolworths at the Hyperdrome. The applicant's evidence was to the effect that he quite often shopped with his wife but he nominated several alternative supermarkets, including Woolworths Hyperdrome, Woolworths Woden Plaza and The Clints at Woden. On the other hand, the complainant said that she mainly used Woolworths supermarket at Erindale and that it may have been at that store that she purchased the liquid soap. She added however "If I didn't buy it there I probably bought it at The Clints at Woden". 29 The applicant offered two explanations for the presence of his thumbprint on the liquid soap dispenser. In the first place, he said that when he was shopping at one of several supermarkets, he may have handled the container that was subsequently purchased by the complainant. Mr Bush was asked to comment on the applicant's explanation that he may have touched the dispenser in the supermarket. He said: "Environmentally it would have bright lights inside the supermarket, as a source of energy for the fingerprint to decompose. You would have a fairly strong influence of touching and packaging, from removing from the shelf, placing it into a trolley or bag, and then subsequently being processed through the checkout … Subsequently placed into a carry bag for removal from the supermarket, placed in the vehicle, transferred from the supermarket to the resident. Removed from the vehicle. All the while that the item that's been in the bag is continually touching other items within the bag. Brought into the house and then placed in the next environment in the house, in this case, the ensuite bathroom. So all those factors are building towards a high probability of contact with other surfaces, as the appreciation of the likely contamination of the fingerprint." 30 The applicant's second explanation for the presence of his thumbprint was that he could have been at the complainant's premises at some stage to do electrical work; he was an electrician by trade and had worked in that capacity for some ten years. He gave evidence that he had been to the complex of townhouses where the complainant lived on earlier occasions; he had friends who lived there in late 1994 and he had visited them. His friends had a niece who lived next door to them and, at their request, he had done some electrical work for the niece. Although he had no recollection of any details, he said that he had done other work in other units but he could not recall having been in the complainant's unit. The complainant gave evidence that her partner was a builder and was away from home for long periods of time because of his work. However, if any work was needed to be done around the house, her partner would do it. She said that no other tradesmen came to the house during 1995. She also claimed that the applicant had never visited her house. 31 The applicant said that he could not recall what he had been doing on the night of 7 September 1995; it was possible that he had been jogging that night, but he denied jogging past the complainant's home as, so he claimed, that was not on either of his usual routes. He saw a report of the assault in the local newspaper and he had a conversation with his wife about it. He said in his evidence: "I can't remember the exact words. I can't remember if she actually accused me of the incident. All I can seem to – all I remember is that I said – I basically said to her, if after X amount of years that we've been married, you don't know me by now, and you think I could do something like that, well, we may as well go to the police now." the merits of the application 32 The critical question is whether the applicant would have arguable grounds of appeal which might lead to the conclusion that he has been denied a fair opportunity of an acquittal: that is, whether it is likely that there has been a miscarriage of justice. The source of the applicant's complaint was his wife's evidence about the newspaper article and what she said to him when she showed him the article. 33 It is necessary to set out in detail passages from the evidence, submissions of counsel and the summing up as to the impugned evidence. It will then be necessary to assess whether the evidence might have tainted the conclusion of the jury that there was no explanation or hypothesis consistent with innocence in the thumbprint of the accused being found on the liquid soap bottle on the complainant's bedside table. 34 In the absence of the jury, the prosecution indicated that it wished to ask Mrs Parker, the wife of the applicant, whether she had some concern or suspicion that the applicant was responsible for the attack which was reported in the local newspaper. Counsel for the prosecution informed the trial judge that Mrs Parker: "… ultimately went to the police and provided them with information that suggested that it was a possibility that this person was the person responsible for the crime." His Honour said: "But surely she went further than that? She would have given them information about facts X, Y and Z … it doesn't matter what her concern was or what her suspicions were, or … that she made a complaint." And later, in respect of the "concern" that the wife entertained, his Honour said: "Well, I don't think you're entitled to get that. If the other side want to open up that aspect, they can do so and you might get it in re-examination, but I wouldn't allow it in-chief." The trial judge went on to say, however: "But you can still get the evidence in of what she did and possibly what she said." 35 Before Mrs Parker gave evidence in front of the jury, she was warned in their absence by the trial judge: "… it's important that you restrict your answers to the questions as much as you possibly can because there is a risk if you go beyond what you're being asked about and give information, even though you might think it's important, which is not raised by the question you're asked, then the trial will have to start again. We'll have to send the jury home and stand the case over for another few months so that we can have another go at it. Do you understand?---Yes." 36 In the course of her evidence-in-chief, Mrs Parker recalled seeing in the newspapers in the days after 7 September 1995 reports of an event near to where she lived that were the subject of the trial proceedings. She was asked: "Did you raise that with your husband, did you talk to him about it?---Yes, I did. Where? Where was it that the conversation took place?---I don't remember. What did you say to him?---I can't remember. I know I raised the situation. Do you remember what he said?---He denied it. Denied what?---The accusations. Well could we go back a step. You refer to accusations. What did you say?---I don't remember what I said. I just remember asking him whether he knew anything about - - - And do you remember the words that he used when he replied?---No, I don't." 37 The applicant at his trial gave evidence that he was unsure as to whether, on the evening of the offence, he was out jogging. It was submitted to the jury on behalf of the prosecution that the fact of the conversation would have caused him to reflect upon what he was doing at the relevant time. It was suggested that, the incident having been raised two weeks or thereabouts after the event, one would reflect back and consider carefully where one was at the relevant time, and this is to be contrasted with what the applicant said at his trial: "I cannot recollect if I was out running that night or not." 38 The suspicion or concern of Mrs Parker about her husband's involvement in the matter was inadmissible, as the trial judge had indicated, and she should not have been asked about the content of the conversation that was prompted by the report in the newspaper. Other evidence that she gave was highly relevant, in particular that, on the evening of 7 September 1995 at about nine o'clock, her husband was out running, and that later that night she saw the applicant wearing the clothes that he usually ran in, and she identified a tracksuit top as "the top that he… wore that night". She described the clothes as "royal blue tracksuit pants and a royal blue sloppy joe with a pocket in the front and a cord with yellow piping around the cord." 39 In his evidence-in-chief at the trial, the applicant gave the following evidence concerning the report in the newspaper and the conversation about it between his wife and himself: "Now, subsequent to 7 September, did you become aware of the media publicity generated in respect of the sexual assault upon [the complainant]?---Only a week or so later, when it came out in the Chronicle, I actually saw it in the Canberra Chronicle. Do you recall a conversation with your wife concerning the matter?---Yes. Do you recall when that conversation was in respect of 7 September?---It was some weeks after the 7 September, I think. Can you recall the words that were spoken now? If you can't can you indicate?---I can't remember the exact words. I can't remember if she actually accused me of the incident. All I can seem to – all I remember is that I said – I basically said to her, if after X amount of years that we've been married, you don't know me by now, and you think I could do something like that, well, we may as well go to the police now." 40 On the appeal, the respondent contended that this account by the applicant of his response was "volunteered" by the applicant, and it was submitted that, in giving this response, the applicant sought to draw support from the fact that his wife did not in fact approach the police shortly following that conversation. The applicant was cross-examined at his trial, particularly concerning what was claimed to be the improbability of his asserted inability to recall whether or not he was out running on the evening of 7 September, given that his wife had raised the incident that occurred on that night shortly thereafter, as a consequence of seeing the newspaper report of the incident. The applicant was asked in cross-examination: "She just accused you of being involved?---Once again, I – like I said on Friday, I don't remember any accusations being made. I don't know how it actually came out and what she actually said." 41 The subject of the conversation between the applicant and his wife was referred to by the Crown at the conclusion of the applicant's examination to contend that there was some probative value in the fact that the wife suspected the applicant of being the perpetrator of the offence. While it is lengthy, the end of the cross-examination put the Crown case against the applicant very squarely to him: "Now there's some very unfortunate coincidences, so far as this case is concerned, aren't there, Mr Parker? Your wife says that you were out running that night?---Yes, that's correct. You owned or were wearing clothes that were similar in description to that given by [the complainant]. Is that correct?---Well, I can't remember the actual description that [the complainant] gave, because I didn't think she had a – I mean, the amount of light that was in the room, and what – accordingly to [the complainant] was saying, most things would've been dark. Just to remind you of what she said to the police, just after the event. You will recall Constable Saunders reading this out. 'As I got up, I could see – just see the male person in the corner of my eye. I could see he was about 5 foot 6 to 5 foot 8. He was of slight build and was wearing dark clothing. I could see that he had something on his head – something dark on his head which covered his hair and ears and gave the impression of a white border around his face. I believe that this could've either been a woollen beanie or an open faced balaclava. I couldn't see his face clearly but I could tell he had white skin. From what he had said to me, I could tell that he was softly spoken in an Australian accent, he did not sound like an old man or a teenager. I would estimate that he was between 25 and 30 years, I could not smell cigarettes, alcohol, aftershave or any other odour on him'' Now, you were in possession, at that time, of a woollen beanie?---Yes, that's true. And an open faced balaclava?---Yes, that's correct. That jacket – hold it up. Just lift the hood up for the jury, please. There's a hood on it, which would cover your head if it was being worn. Yes?---Yes. Partially. It's a loose fitting hood. … How old were you?---August '95? Yes?---I would've been about 38. You are, you would accept, a quietly spoken man?---I'm relatively quietly spoken, sir. No different to anybody else, I would've thought. You didn't smoke?---No, that's correct. You didn't drink before you went?---Yes. Do you see a similarity there, Mr Parker?---No, I don't see the similarities there, I'm sorry. You lived close by?---Yes, I lived close by. It was a 3 minute walk to that place?---Yes, possibly, yes. I've never, ever timed it. And your fingerprint was found on the bottle that was used as the source of lubricant in the sexual assault?---That's correct. That's a terrible coincidence, isn't it?---It is. That's why I'm here denying it. And to top it off, your wife accused you of doing it?---That's correct." There was evidence in the trial that the accused in shoes was 169 centimetres tall. 42 In the course of the submissions by the Crown to the jury, there was a quite improper invitation to speculate about the basis for the wife's suspicions. The Crown Prosecutor said: "… the conversation that's been referred to was she accused this person, Mr Parker, of involvement in this offence. You might think it happened for a particular reason, some of which we don't know about, that's fairly clear. There is much in a marriage, there are many secrets, there are many things that are understood between two people but not stated. Clearly, Mrs Parker had a reason for suspecting her husband's involvement in this matter, apart from the circumstances surrounding the running on that particular night to which I'll come to later, but clearly she had reasons for suspicion. Who knows whether or not that souveniring aspect of the matter was something that she was aware of, we just do not know." The reference to "souveniring" is a reference to the taking from the complainant's clothesline of a body suit that was put over the complainant's head during the commission of the offence. 43 Defence counsel, in the course of his address, submitted to the jury: "… it would be quite wrong of you to infer anything from the fact that his wife challenged, enquired, or accused him in the weeks following this offence. Or indeed that she apparently much later telephoned the police." And later: "… I remind you ladies and gentlemen, we don't even know what Mrs Parker might think, or have at one time thought in this matter. And the reason you don't know that is because it's not relevant." 44 In the course of his submissions, defence counsel said, "… this case goes nowhere without the fingerprint." At the conclusion of his submissions, defence counsel said: "In conclusion, I put the submission to you that at the end of your assessment this case is about a fingerprint. There are other ways that fingerprint may well have ended up on that bottle. You're not assisted by the fact that we're many years down the track. And in my submission it's not an easy thing to do, but when you have regard to some of the matters that I have raised with you the idea of such a preposterously fanciful scenario doesn't really stick." 45 Concerning the evidence of the suspicions of the applicant's wife, the trial judge told the jury: "Another part of her evidence though, was the conversation that she claims to have with the accused within a week or so of the night in question when she read about it in the Canberra Chronicle where her husband happened to work, or he worked at the Canberra Times but I think that they printed the Canberra Chronicle. And she said – her evidence that was rather incomplete you might think, but on the other hand there appeared to be no dispute about it when the accused himself gave evidence that she mentioned what she'd read in the newspaper about the assault that had taken place and whatever she said to him, it was his response really that the prosecution relies upon. And that was something to this effect, 'We've been together this long, it would take more than this to make you think what you do and if so – or it should, or if it doesn't we ought to go up to the police straight away' and that seems to be an end of it as far as the evidence is concerned. The prosecution says, well, the strange thing about that is that he says now that he didn't even think at that time to cast his mind back to the relatively short period – he said it was 2 or 3 weeks before I think – but at any rate the relevantly short period before when the events were said to have occurred on the Thursday night. And if he'd done so, the prosecution argument, he would have been able to say, 'That would have been one of the nights when I was home' because he takes the night shift once every 3 weeks as I understand it, a day shift, a night shift, a day relief shift. At any rate he would have been able to say, 'Well although that's one of the nights I was home, I don't go over there, I mightn't have been home or I wasn't home, but I don't jog over the other side of Erindale Drive over Theodore, I'm an Oxley jogger'. And that's what he told you, he jogs around the areas of Oxley and not across the way, certainly not behind the house that [the complainant] occupied at the time." 46 The significance of the thumbprint and the possible explanations as to how it might, consistent with the applicant's innocence, have been found on the liquid soap bottle loomed large in the directions to the jury. The matter was left to the jury in these terms: "… how is it then, ladies and gentlemen, that in the end it's the thumb print of the accused that's found on the bottle? Both parties really put to you that that's ultimately the question that you have to resolve one way or another so that you can ultimately come to that final conclusion when you answer the question, is there an explanation open, a reasonable or rational explanation open that is consistent with innocence? And if the prosecution hasn't shown you that there's no such innocent explanation then the prosecution is not entitled to a verdict of guilty." 47 The jury returned a verdict of guilty, and it must be taken that the jury rejected that there was any reasonable or rational explanation consistent with innocence for the applicant's thumbprint being found on the liquid soap bottle. 48 The evidence of the suspicions of the applicant's wife was before the jury and was inadmissible opinion evidence and not relevant to any question that the jury had to decide. However, the fact that that evidence was before the jury did not, in our view, deprive him of a fair trial. It is significant that, after Mrs Parker said that the applicant had "denied her accusations", the matter was not raised by defence counsel then or later, nor was there any application for a direction to the jury concerning that evidence and what value it might or might not have had, nor was there any request for redirection or discharge of the jury on account of the reception of that evidence. There was also no complaint made by the defence counsel about the improper invitation by the prosecutor to the jury to speculate as to the basis of the wife's suspicions, and no argument made to the trial judge for a direction to the jury or for the jury's discharge on that account. The trial was really fought on whether the prosecution had established beyond reasonable doubt that there was no innocent explanation for the presence of the applicant's thumbprint on the liquid soap bottle found on the bedside drawer in the bedroom of the complainant. 49 In our opinion, the impugned opinion evidence was inadmissible but its reception into evidence did not have the consequence that the applicant was denied a fair trial. Whatever be the suspicions of the applicant entertained by his wife, the knowledge by the jury of those suspicions can have had no bearing on its finding, beyond reasonable doubt, that there was no reasonable or rational explanation consistent with innocence for the presence of the applicant's thumbprint on the liquid soap bottle. In the words of the High Court in Jeffers (supra) the applicant has been "unable to demonstrate any prospect of success in the appeal which he seeks to prosecute". For that reason, he is not entitled to an extension of time within which to appeal. We are satisfied that no injustice has been caused to the applicant and that no miscarriage of justice has occurred. 50 For these reasons, the application for an extension of time within which to appeal is dismissed. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, O'Loughlin and Dowsett. Associate: Dated: 17 May 2002 Counsel for the Applicant: Mr A. Bellanto, QC Solicitor for the Applicant: Saunders & Company Counsel for the Respondent: Mr R. Refshauge, SC Solicitor for the Respondent: Director of Public Prosecutions Date of Hearing: 13 May 2002 Date of Judgment: 17 May 2002