Mulholland v R [2019] NSWCCA 257

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Mulholland v R [2019] NSWCCA 257 Hearing dates: 8 April 2019 Decision date: 30 October 2019 Before: Simpson AJA at [1]; Wilson J at [2]; Ierace J at [3] Decision: (1) The application for leave to appeal is granted.

(2) The appeal is dismissed. Catchwords: CRIME – appeals – appeal against conviction – identification – directions as to physical characteristics of accused – no error in directions – verdict not unreasonable Legislation Cited: Evidence Act 1995 (NSW), ss 116, 165 Cases Cited: Collins v R [2006] NSWCCA 162 Dickson v R [2017] NSWCCA 78 R v Rose (2002) 55 NSWLR 701; [2002] NSWCCA 455 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Category: Principal judgment Parties: Alan Paul Mulholland (Applicant) Regina (Respondent) Representation: Counsel: S Kluss (Applicant) E Balodis (Respondent)

Solicitors: Ross Hill & Associate Solicitors (Applicant) Office of the Director of Public Prosecutions NSW (Respondent) File Number(s): 2016/114567 Decision under appeal Court or tribunal: District Court Date of Decision: 30 August 2017 Before: Armitage ADCJ File Number(s): 2016/114567

Judgment 1. SIMPSON AJA: I agree with Ierace J. 2. WILSON J: I agree with Ierace J. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.