Regina v Allan Troy Hill [2005] NSWCCA 44

New South Wales Court of Criminal Appeal

CITATION: Regina v Allan Troy Hill [2005] NSWCCA 44

HEARING DATE(S): 16 February 2005

JUDGMENT DATE: 1 March 2005

JUDGMENT OF: Bryson JA at 1; Barr J at 2; Hoeben J at 33

DECISION: Refuse to grant an extension of time within which to appeal.

CATCHWORDS: Criminal law - circumstantial case - whether verdicts unreasonable or unable to be supported having regard to the evidence. Criminal law - whether appellant received a fair trial.

PARTIES: Regina, Allan Troy Hill

FILE NUMBER(S): CCA 2004/2565

Self Represented COUNSEL: D Frearson

Not Applicable SOLICITORS: S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/61/0157

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

- 1 - IN THE COURT OF CRIMINAL APPEAL 2004/2565

BRYSON JA BARR J HOEBEN J

1 MARCH 2005 REGINA v ALLAN TROY HILL Judgment 1 BRYSON JA: I agree with Barr J. 2 BARR J: On 22 September 2004 the applicant, Allan Troy Hill, filed a notice of appeal against his conviction of a number of offences in the District Court. The offences were committed on 28 March 1998. The jury found him guilty on 29 April 1999. Since his notice of appeal was not filed until a time more than five years after the expiry of the time allowed for the filing of an appeal, the applicant must obtain an order extending the time for filing his appeal. ` The case at trial 3 At 5:30am on 28 March 1998 a man broke into the house of the complainant and sexually assaulted her in a number of ways. The complainant noticed a strong smell of alcohol on her attacker. He kept up his assaults until he left the house at about 7am. During his attack he held a knife against the complainant's face. The complainant took hold of the knife to try to ward off the attack and received superficial cuts to her hand. At one stage of the attack the attacker put on a condom. Eventually the complainant told her attacker that he should go because her estranged husband, whom she named, was coming to pick her up for work at 7am. The attacker asked whether he was the boyfriend with the motor bike. The complainant's boyfriend did indeed have a motor bike. Another remark that the attacker made showed that he knew that the complainant had a certain sexual aid of a certain colour. The attacker left at about 7o'clock and the complainant immediately telephoned her husband and told him that someone had broken in and that she had been raped. He arrived at the house shortly afterwards and got in touch with the police. 4 During the assault the complainant felt the T-shirt worn by her attacker. She felt stripes on the shoulders and the sleeves, formed by raised pieces of material sewn on. It had a round neck. She felt his jeans. She described him as being about five foot seven and as having short, wiry, curly hair. She said that he was darked skinned and had stubble on his face. 5 It was the Crown case that the applicant was the attacker. 6 The complainant's description of her attacker was of a man not unlike the applicant in appearance but fell a long way short of identifying him. The attacker's clothes, by her description, were not unlike the applicant's clothes, but she could not positively identify them. Nobody else saw the events. There were no admissions. The Crown case was circumstantial. The circumstances relied on by the Crown were as follows - (a) The applicant lived in a caravan park which was situated only about 130 metres from the complainant's house. (b) At 5am the applicant left an hotel where he had been drinking and caught a taxi, which took him first to a convenience store and then to the caravan park. The driver estimated that he delivered the applicant to the caravan park at about 5:15am. (c) The attack took place between about 5:30am and 7am. (d) The general description of the attacker matched the applicant's height and colouring. The attacker's clothes were not unlike the applicant's. (e) A T-shirt and jeans recovered from the applicant matched the complainant's description of clothes worn by the attacker. (f) At about 8:10am a knife owned and identified by the complainant, the missing one of a set of knives of graduated size, was found in the pocket of the applicant's jeans. (g) Also found on the applicant was box which had contained six condoms. Five only remained in the box. With the box was found a fragment from the wrapper of a condom. A second fragment was found in the complaint's house. A third was found in a rubbish bin in the street at a place between the complaint's house and the caravan park. Although the three fragments did not make a complete wrapper, their torn and jagged edges matched one another. (h) A condom of the same type as those in the condom box was found in a rubbish bin by the door of the applicant's caravan. DNA testing of the contents showed that it was highly probable that they came from the applicant. (i) When leaving the complainant's house, the attacker left shoe prints in the dust on the ground. The size and pattern of one of the prints matched the sole of a shoe taken from the applicant. 7 The defence case was that the applicant returned to the caravan park somewhat later than the taxi driver said, about 5:30am. He had been feeling sick and was vomiting blood. He went to his caravan and a cousin of his, Mr Stephen Button, arrived and asked for a loan. He lent Mr Button $50.00 and the two of them walked together towards the hospital to obtain treatment for the applicant. When he arrived at the hospital the applicant realised that he had no means of identifying himself, so he did not enter. Instead, he turned round and walked back towards the caravan park. On the way he came across a knife and a condom box and its contents lying on the footpath near a bush. He picked them up and put them in his pocket. He threw the fragment of wrapper into the rubbish bin in the street. It was accepted at trial that the attacker entered the complainant's house by climbing over a painted, wooden window sill. The paint was old and oxidised. The applicant adduced expert evidence that particles of paint would have adhered to the attacker's clothing and the applicant's clothing bore no such particles. During the early hours of Friday, 27 March the applicant had entertained a woman at his caravan and they had had sexual intercourse. He had used the condom the police found in the bin. He did not go to the complainant's house. He did not attack her. 8 There was no doubt that the attacker had committed the offences charged. The jury were satisfied beyond reasonable doubt that the applicant was the attacker and found him guilty of one count of aggravated breaking and entering and committing a sexual assault and five counts of aggravated sexual intercourse without consent. Those counts accorded with the various ways in which the attacker had sexual intercourse with the complainant. It is unnecessary to say more about the detail of the attack.