LEWIS v R
Ccurt of Appeal of the Northern Territory of Australia Maurice & Asche JJ, Muirhead AJ
7, 8 May, 1, 2, 3, 17 July 1987 at Darwin

Criminal		Law	- Rape - Identification	Evidence Marks	- Forensic	Odontology	- Reliability

- Bite
for

identifying	rather	than	excluding	suspects Admissibility - Criminal Code s.192(1) and (4).

Criminal Law jury - Rape Policy

- Conduct of Defence Counsel - Impact	upon in issue - Cross-examination of counsel

Evidence	- Criminal	Law	- Forensic	Evidence Conflicting expert testimony - Novel scientific evidence
- Duty of the Crown - Discretion to exclude.

Appeal	- Unsafe	conviction	- Verdict of	acquittal Criminal Code s.411

Cases applied:
R v Carroll (1985) 19 A Crim R 410
R v Chamberlain (1984) 153 CLR 521;
225

Cases referred to :

(1984) 51 ALR

Frye v United States 293 F 1013 (D.C.Ar. 1923) R v Armstrong 11 A Crim R 363
R v James McCall (1920) 20 SR(NSW) 467
R v Sarek (1982) VR 971
R v Turner (1970) 2 All ER 281
Re Knowles (1984) VR 751 The Appellant in Person

Counsel for Respondent
Solicitor	for Respondent

Arnicus Curiae

R. Ellis
Solicitor for the	Northern Territory
P. Tiffin

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
SITTING AS THE
COURT OF CRIMINAL APPEAL CA No. 5 of 1986

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
No. sec	91-92 of 1985
BETWEEN:
MICHAEL ANTHONY LEWIS

Appellant

AND

THE QUEEN

MAURICE J

REASONS FOR JUDGMENT
(Delivered	17th July 1987)

Respondent

I asked my brother Muirhead J. to deliver the first judgment. He has set out the extensive grounds of appeal relied on by the appellant and canvassed the evidence called by the prosecution and the defence at the trial. With the orders proposed by Muirhead J. I agree; substantially for the reasons he has given. There are some qualifications I would like to make and some additional remarks as well. I would like to have spent more time preparing these reasons, but that would have meant several weeks delay and so confident

am I the conviction should be quashed the interests of justice demand judgment be given now.

To Muirhead J.'s references about appeals against conviction where incompetence of counsel or some other form of malpractice is alleged, I would add Armstrong
11 A Crim. R 363; and Turner (1970) 2AII ER 281.

I do not think the question of whether this Court should simply quash the conviction or order a retrial ought to be influenced by any assessment we may make of the alibi evidence from the transcript; it seems to me to be pre-eminently a jury question. However, I am of the view that a retrial should not be ordered because without the weight of the odontologists' credentials, no reasonable jury would fail to enter­ tain a reasonable doubt about the appellant's guilt. Having delayed justice for the reasons it apparently did, and even then seeking to rely on evidence of a kind and from a source so recently and authoritatively rejected in this country, I do not think the Crown ought to be given a second chance to put the accused in jeopardy.

This is a quite extraordinary case on its facts; extraordinary because, of the three eye witnesses who were called by the Crown, one positively excluded the

appellant as a suspect. No satisfactory explanation for his evidence consistent with the accused's guilt was suggested by the Crown. Other things being equal, his evidence must have given rise to a reasonable doubt on the vital issue of identification. Even without this remarkable contradiction in the Crown's case, it would have been extremely dangerous for the jury to have relied upon the evidence of the other two eyewitnesses. No doubt this was recognised by the Prosecutions Section of the Department of Law and goes a long way to explaining why the trial was put off for
18 months after the appellant was committed.  The Crown needed forensic evidence; all it had was a photograph of bruise marks left by five teeth on the prosecutrix's boyfriend's chest and the decision of the Queensland Court of Criminal Appeal in Carroll (1985) 19 A Crim. R 410 unanimously denouncing expert evidence purporting to connect marks of this kind to a suspect as unsafe. The Crown appears to have been
waiting	to	see if special leave to appeal	from	the
Carroll decision was granted by the High Court.  It was not. In spite of this, relying upon the leading forensic odontologist, Mr Bernard Grant Sims, whose evidence in the Queensland case had been declared unsound for the purposes of obtaining a conviction the
Crown decided to press on.

.Of the two dentists called by the Crown, Mr Sims was

by far the most qualified and experienced. The other, a local dentist with an interest in forensic odontology, Mr John Roger Plummer, described Mr Sims as the doyen of world experts in forensic dentistry. Doyen or not, in November 1985 the Queensland Court of Criminal Appeal in Carroll rejected similar evidence from him, confidently finding that it would be unsafe or dangerous to allow a verdict based upon it to stand.

One can extract from Carroll a principle similar, if not identical to that laid down in the famous lie­ detector case: Frye v United States 293 F. 1013 (D.C. Ar. 1923):

"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Some­ where in this twilight zone the evidential forces of the principle must be recognised, and while Courts will go a long way in admitting expert testimony deduced from a well recognised scientific principle or discovery, the things from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs".

Frye		is discussed generally by	P.C.	Gianelli,	''The Admissibility	of Novel Scientific Evidence :	Frye	v United States a Half Century Later" (1980) 80 Columbia Law Review 1197; by Ian R. Freckelton in The Trial of the	Expert at pp.	167 to 174;	and,	in relation to

4

bite mark evidence,	by A. Hale in "The Admissibility of	Bite Mark Evidence" (1978) 51 Southern	California Law Review.

An	important part of the reasoning of the	Queensland Court	was that there was "a body of eminent opinion which holds	that		valid identifications cannot be		made	by reference	only	to	bruise marks or	they	should	be referred to only for the purpose of excluding suspects
and not from [sic] positive identification" per Kneipp
J. at p. 414. In other words, in the  field  of forensic dentistry there was not general acceptance of the reliability of the evidence adduced by the Crown, except perhaps for the purpose of excluding suspects. It could not be asserted that the Frye test has become law in Australia; nonetheless it provides a useful guideline in determining whether novel forensic evidence should go before a jury, and it cannot be argued that the underlying concerns it was formulated to  meet  are not as important today as they  were  in
1923.

It was Mr Sims evidence from which this conflict between experts appeared most clearly and the relevent passages from the Queensland trial transcript are set out at pp.  414 to 415 of the report.   Those passages
were  read  verbatim  to Mr Plummer  who,  in  effect,
agreed with them.   They were also put to Mr Sims who,

as might have been expected, adhered to  them. However, he went on, in effect, to apologise for the lack of scientific research on which to base conclusions, pointing out that it was not easy to find subjects willing to be bitten.

Given the recency of the Carroll case and the novelty of forensic evidence positively identifying a suspect from bruise marks left on a victim's flesh, it behove the Crown in this case to carefully lay the ground for the reception of the opinions expressed by Mr Plummer and Mr Sims. It could only do this by proving the scientific reliability of the exercise they carried out. From my reading of the evidence, the Crown did not even attempt to do this; instead, it chose to rely on the witnesses' qualifications and experience in the field of forensic dentistry generally, and, in particular, upon the impressive curriculum vitae of Mr Sims and the confident way in which he expressed his
conclusion.

The Crown hardly went beyond proving the uniqueness of human dentition, i.e. for all practical purposes, taking into account the size, shape and relative con- figeration of 32 teeth and their five surfaces, no two people have sets of teeth which perfectly match one another. But the question in this case was whether

bruise marks depicted on a photograph of human flesh could be matched with tracings of the biting surfaces of five adjoining teeth using a model made from an impression taken from the appellant's mouth. No experimental research was pointed to nor other studies which demonstrated the reliability of the deductions made by these witnesses from their exercises. On the contrary, the impression from Mr Sims's evidence is that the necessary research has not really been carried out. The extent of his own experience with bite marks in human flesh is 200-plus cases in over 25 years. This must have covered a variety of marks and wounds inflicted in a wide range of circumstances, examined under diverse conditions and for a number of purposes. It is not evident to me that it could provide a fund of experience from which to formulate the sort of deductive conclusion expressed by Mr Sims in the present case. If it could then it should have been made evident to the trial judge and the jury.

It is timely that this Court should begin to lay down guidelines for the reception of forensic evidence in criminal cases where the issue of guilt has to be determined by a jury. There has been surprisingly
little	judicial	discussion	on	the	subject	in
Australia. In contrast, courts and writers in the United States have given it a lot of attention. In Chamberlain (1983) 51 ALR 225, at p. 256, Gibbs CJ and

7

Mason J agreed with the following passage from the judgment of Jenkinson Jin the Federal Court

"Those means of evaluating evidence which the jury enjoys by hearing and watching witnesses, and which are denied an appellate tribunal, could not in my opinion have enabled the jury reasonably to have eliminated the doubt, as to whether the matter tested contained foetal haemoglobin, which a careful consideration of the transcript of evidence and the exhibits raises in the mind. It may be conceded, as counsel for the Crown submitted, that idiosyncracies of manner and voice may undermine confidence in the reliability of a witness. But the evidence of Professor Boettcher and of Professor Nairn claimed the consideration of the jury upon grounds which could not rationally be shaken substantially by those things which the eyes and ears of a jury receive, but which a transcript does not reveal. Each of them was giving his opinion on matters of science within disciplines of which each was a master, and at a level of difficulty and sophistication above that at which a juror, or a judge, might by reasoning from general scientific knowledge sub­ ject the opinion to wholly effective critical evaluation. The reasoning by which other expert witnesses criticized the conclusions of Professor Boettcher and Professor Nairn, as well as the reasoning by which the latter two witnesses supported those conclusions and criticized the conclusions of the others, were all matter for tha jury's evaluation. But in my opinion no juror could reasonably have failed to acknowledge that, reason as he might, he was not in a positicn to assure himself of the correctness of a conclusion against the opinions of the two professors to the degree which would eliminate reasonable doubt as to that conclusion."

Forensic evidence, especially if it goes to a vital issue implicating an accused person in the commission of an offence, may often have a prejudicial effect on the minds of a jury which far outweighs its probative value. The jury, being people without scientific

training, may often be impressed by an expert's qualifications, appointments and experience and the confident manner in which he expresses his opinions. And yet it ought not be left to such matters alone to provide a foundation for the jury making an assessment of the probative value of forensic evidence, part- icularly where there are conflicts in expert testimony, or where it is acknowledged that other experts of more or less equal distinction are unlikely to agree.

For my part I think that whenever the Crown wishes to rely upon forensic evidence the prosecutor has a clear duty, not just to his client, the Crown, but to the trial judge and the jury to acquaint them, in c dinary language, through the evidence he leads, with those aspects of the expert's discipline and methods necessary to put them in a position to make sow.e sort of evaluation of the opinions he expresses. Where the evidence is of a comparatively novel kind, the duty resting on the Crown is even higher: it should demonstrate its scientific reliability. It is not an answer to considerations that dictate these things be done to say the defence may draw it out in cross­ examination; that is an abdication of the Crown's primary function in a criminal prosecution.

There is a tendency amongst academics, professionals and others who develop skills in a particular area to mystify their field, often by the use of what seems to the outsider to be arcane language. It is the role of a prosecutor to strip forensic evidence of its mystery so far as is possible; trial by expert must never be allowed to take the place of trial by jury. The inability to articulate the principal tenets that need to be understood, to describe in ordinary language the methods used and the reasons that point to a particular conclusion, these are the hallmarks of unreliable science and the not-so qualified expert.

I share all of Muirhead J.'s concerns about the forensic evidence in this case. There is a very considerable risk that the jury were awed by Mr Sims's credentials and the confident manner in which he expressed his conclusion, notwithstanding that its probative value in linking the appellant to the rape was not demonstrated to be great.

Mr Plummer was the first of the Crown's two forensic experts on the bite marks to be called. His principle academic qualification is a bachelor's degree in dentistry. Today he is an administrator; in the past he has practised general dentistry. He has dabbled in forensic dentistry but it could not be described as more than a sideline interest to him. So far as the

evidence	reveals,

he	has never	done	any	original

research or published any learned papers of his own. He obtained a certificate for forensic science from the Darwin Community College following a two year

part-time course.

In 1985 he was awarded a Churchill

Fellowship to study forensic dentistry for several months in Europe. On this trip he was associated with Mr Sims at his London base for a month. Mr Plummer is also a member of the Australian Society of Forensic Dentistry and attends conferences in forensic science

from	time to time. was asked:

Early in his evidence Mr Plummer

"Doctor, so far as identification of perpetrators of crime from bite marks is concerned, have you read a number of publications in relation to that?
... I have.

Have you developed a degree of expertise in relation to that area? ... I certainly hope so."

Little else was done to qualify him before he gave the following evidence:

"Doctor,	assuming	for the moment that	there correspondence	between		the		bite	mark		and impression		of	teeth	that	you	obtained,

is the what

certainty	is	there	that	the	same	person	is involved? ... A very high degree of certainty.

On	what	basis do you make	that	assertion? There are a number of studies which have been done. which	would indicate the uniqueness of the	human

dentition. I have seen studies which would indicate that of a series of over 300 cases in which the centre point of various teeth have been graphed, that - and this was on the 6 upper and 6 lower anterior teeth, which are the ones most commonly used in this area - they are for biting. There was no correspondence in any of these 360- odd cases."

It is apparent that he has no real first-hand experience of comparing bite marks in human flesh with tracings made from models of a suspect's teeth. Of course, the important thing is not so much the making of the comparision but what significance that has in excluding the rest of humanity from suspicion, something one would expect could only be assessed after considerable research done under controlled scientific conditions. For the conclusions he expressed about the reliabili y of the technique as a method of making a positive identification he was entirely dependent on the works of others.  At  no stage did he refer to scientific research which got closer to the facts of this case than the study referred in the answer I have set out above.

It ought to be said that the tracings made by Mr PlurrIDer on an acetate sheet from a model of the appellant's teeth, when applied to the photograph of the bite marks, do not show a degree of correspondence such that to a lay observer it is apparent that the two match sufficiently to enable an identification to

be made.

Mr Plummer claimed it was sufficient to have four "points of identity" to make a positive identification. His mentor, the doyen whom he got to confirm his conclusions, Mr Sims, thought it could only be done with six "points of correspondence."

There can be no doubt that the mainstay of the Crown's case so far as it depended on forensic materials was the evidence of Mr Sims. Given the  decision  in Carroll - to which it seems the trial judge was not even referred before the evidence was led - one would have expected the prosecutor to have tried to adduce evidence from Mr Sims providing cogent reasons for taking a different view in this case from the view taken by the three members of the Queensland Court of Criminal Appeal about 12 months before. This was not done. When defence counsel introduced the  line  of lack of general acceptance to Mr Sims in cross­ examination, the witness tried to dismiss it  by saying: "[W]e have suffered in the past by a lot of
over	eminent	predecessors	who	wrote	about	the
exclusion rather than inclusion of persons, and a great deal of this work has been done in the sixties and  up  to  the  seventies,  and a  great  deal  more

research		has been done from 1970	onwards": after,	he		interrupted counsel to		volunteer:

Shortly
"Well,

this comes up perennially actually, many authorities believe it's better to exclude than include, and if you want the reference it is on page 134, line  10, word 7, of Cameron and Sims" - referring to a book of which he is a co-author. This statement is more cnnsistent with the evidence he gave in Queensland, as appears from the report of Carroll's case, which plainly refers to the current state of affairs and not something founded on out-of-date references as he initially suggested.

No details were given of any further research since
1970, apart from this statement :

"There	is	a	great	deal of	enthusiasm	at present		moment and certainly in all parts of

the the

world including the United States and here, there's a great deal more bite mark evidence carried out under scientific means."

where
being

If this was a reference to research in the form of the production of bite marks under controlled scientific circumstances - and one could not be sure that it  was
- and	if	the	research	had	gained	any	sort	of
recognition in the scientific community, and if it shows a positive identification can be made from photographs of bruising left by five adjoining teeth, why didn't the Crown lead evidence of it and how is it that  it  appears not to have been brought out in  the

Carroll case?

There	are a number of other unsatisfactory aspects to

this	witnesses'	evidence.	I	can	only positive	exaggeration	his claim that he

regard	as had	had		a

"great deal" of experience identifying bite marks in living tissue when it is remembered that he put the level of his experience as being in the order of 200- plus cases over 25 years and, plainly, some, if not a

significant	proportion of this,
ceased persons.

included work on de-

One matter pointing to the unreliability of this means of identification is the fact, attested to by Mr Sims, that	there			is "no standard or	really	good		defined definition			of		a point of correspondence" or,		as		he also	put		it		"we can't		satisfactorily		define		the correspondence		in	forensic	dentistry".			There		is, therefore,			an		element		of subjectivity in		making			a comparision.			This probably explains why the	witness objected	to what had been done on previous		occasions when		attempts			were	made to set out points of correspondence - demarcation areas - as is done with fingerprints. That, he said, had the defect of channeling the on-looker's mind, which I take to mean revealing the exercise for what it was worth. He preferred to lay a tracing on a transparent plastic sheet over a photograph; that way "you can move it

around ... move it into the positions you want to".

Confronted with points that did not precisely correspond when the transparency was compared with the photograph, the witness resorted to speculation about the victim's probable movements at the time. This, it

seems,	is	part	of	the	subjective	side	of assessment.

the

Mr	Sims pointed out something else which is	probably obvious	when	the	tongue is run over one's	teeth there is a degree of subjectivity in preparing acetate tracings of biting surfaces.

There is more about Mr Sims's evidence that disturbs me and other worrying aspects to the claim that bruise marks can be used in the way they were in this case. As to the latter, Muirhead J. has mentioned some of them in his reasons: the problem of allowing for slippage, idiosyncratic bruising; the limitations inherent in the use of two dimensional photographs; and the expansion and contraction of the flesh with

movement structures.

in		the	underlying	musculo-skeletal Each of these adds a variable of more or

less indeterminite character to the picture. In this case it was further complicated by the peculiar factor of the extensive damage done to the appellant's teeth

when he was beaten up after the rape had occurred.

In the result, I think there has been a miscarriage of justice. I do not think the jury should have been permitted to place any reliance on the dentists' opinions. It really matters not whether  that conclusion is supported by saying the evidence was strictly inadmissible, or its prejudicial effect far outweighed any probative value it may have had, or simply that it would be unsafe to place any reliance on it. Whilst the trial judge counselled caution in approaching the evidence, and his directions in relation to it cannot be faulted in any other way, he certainly did not go so far as to say it would be unsafe to place any reliance on it.

As	to the other grounds of appeal,	I am	content	to

adopt Muirhead J's treatment of them.

On the question of whether this Court should order a retrial, I do not think we ought to consider the alibi evidence; its impact is quintessentially one for a jury to assess. On the other hand, without the forensic evidence, in my view the Crown did not have a case which it could prove beyond a reasonable doubt.

Accordingly, I would simply give leave to appeal and quash the conviction.

asc8700b6

ASCHE J.:	I agree with the judgment of Muirhead J. and the orders proposed by him.	I make two brief comments.

First in fairness to Counsel who appeared at the trial and whose conduct of the trial has been attacked by the Appellant I see nothing·in that conduct or the presentation of the Appellant's case before the jury which justifies the criticisms raised by the Appellant.	From my own observations of the Appellant as he conducted his case before this Court I have no doubt that he would be a very difficult client who would assess the competence or otherwise of his Counsel on one test only; whether he won or lost.

Secondly, in view of the extremely fair summing up of the learned trial judge, it would be difficult indeed to be critical of anything he said.		In particular he most carefully drew the jury's attention to the inherent dangers of the identification evidence.	It is not anything specific in the summing up to the jury but rather the combination of factors which Muirhead J. has discussed which lead me tu agree with his ultimate conclusions.

I also record my thanks for the help given by Mr Tiffin, whose appearance as arnicus curiae greatly assisted the Court in clarifying and giving proper legal form to the arguments put by the Appellant.

IN THE SUPREME COURT

OF THE NORTHERN TERRITORY OF AUSTRALIA
SITTING AS THE
COURT OF CRIMINAL APPEAL
CA No.5 of 1986	ON APPEAL FROM THE SUPREME COURT OF THE
NORTHERN TERRITORY OF AUSTRALIA
No. sec 91-92 of 1985
BETWEEN:
MICHAEL ANTHONY LEWIS
Appellant

AND:
THE QUEEN
Respondent

MUIRHEAD A.J.

REASONS FOR JUDGMENT
(Delivered	1711; July,1987)

On the 24th October 1986 the appellant was found guilty of unlawfully assaulting a female with intent  to  have  carnal  knowledge  accompanied  by  a
circumstance of		aggravation	in	that	he		had	carnal knowledge	of	that	female,	the		charge	being		laid

pursuant to Section 192 (1) and (4) of the Criminal Code. On the 28th October a conviction was formally recorded and the appellant was sentenced to 4 years

imprisonment.	A	non-parole	period	of fixed.	As	the appellant	had		been in 12th May 1986	His Honour	directed that

2	years	was custody	since the		sentence

should run from that date.	He has thus been in custody
for a term of 14 months.

By Notice of Appeal filed on 14th November 1986, the Australian Legal Aid Office acting on his behalf sought leave to appeal against conviction on grounds it is not now necessary to mention, save to say they were inappropriate. By Notice of Appeal dated 8th December the Crown responded by appealing against sentence on the ground that it was manifestly inadequate. The matter was called on the 7th May, the Chief Justice then presiding, and it is not necessary to detail the rather confused situation which emerged.

It	suffices	to	say	that instructed by the Australian

the	appellant's	counsel Legal Aid Office,		sought

leave to withdraw,	which was	granted.	Mr Tiffin	was

asked by the Court to appear amicus curiae, and throughout the duration of the appeal it was conducted in part by the appellant, with considerable and patient assistance by Mr Tiffin. The appellant had been assisted in  preparation  by  a  fellow  prisoner. He

.,

sought leave to be represented by this man, not legally qualified, and this leave was refused. The appellant displayed persistence and some skill in his own submission. Difficulties were encountered but after the hearing resumed some weeks later a Notice of Appeal finally emerged, which this court accepted as amended grounds. On the first day, as one of the appellant's complaints (in fact his main complaint) was the conduct of his own counsel at trial, the court ordered that affidavits be filed to support this ground of appeal (now set out in detail in ground 8), and gave leave and made provision for cross-examination of the deponents on notice. In the  result  the  matter  resumed  on 1st July last and the appellant's affidavit and affidavits sworn to by his mother and brother were filed. The Crown had available affidavits from the

appellant's	counsel	at	trial	and	his solicitor.

instructing

I now set out the grounds of appeal which fall for consideration, omitting only the name of the complainant (which has been suppressed} and page references.

GROUNDS OF APPEAL

The	Jury
"combined"

verdict	cannot	be	sustained light of the following matters:

in	the

The conflict	between	the evidence	of	Miss
..... and Detective Gage about how Miss .....
came to be at the Magistrates' Court on the 8th of February, and how she came to identify me as her assailant. (See Committal)

There has been a miscarriage of justice in that the learned Trial Judge failed to warn the Jury in any, or any adequate way, on the dangers of relying on the expert odontological evidence relating to identification of teeth by reference to bruise marks only.
There has been a miscarriage of justice in that His Honour, the learned Trial Judge, erred in inviting the Jury to compare the crucial material, namely, the acetate tracings with photographs, and in that, the learned Trial Judge erred in allowing the comparative material to go into the jury room.

There	has	been		a		substantial	miscarriage justice because	of the	failure of	the Crown call at	trial all	the	witnesses called	at committal;		or		alternatively,	to		place

of to the the

evidence	given	by		such	witnesses,		as reasonably assist		the	defence case	before Jury in some other appropriate way.
The witnesses in question are:­
Ms Joy Laraine Kuhl -
A forensic biologist employed by the
N.T. police Department
Leslie Bull -
An eye-witness
Mark Gregory Dolton -
David Jennings -

might
that

Possible eye-witnesses	on	the	evidence	of Miss ..... at trial.

There has been a miscarriage of justice because of the failure of the Crown to advise any evidence of the original descriptions given by the witnesses Miss ..... - Teau - and Bull.

..

There has been a miscarriage of justice because of the failure of the Crown to advise before the Jury the results of tests which show that there was no blood found on the clothes worn by the alleged rapist of a heavily menstruating woman.

There has been a miscarriage of justice because of the failure of the Crown to advise before the Jury the results of tests performed on swabs taken from Miss ..... when she was medically examined shortly after the event alleged.

There has been a miscarriage of justice because of the failure of the Crown to give the defence any forewarning that the Crown would not be calling six Crown witnesses who testified at committal.

There has been a miscarriage of justice because of the failure of the Crown to prove the basis of their tender of my black ripple sole shoes.
See Chamberlain v. Regina - 58 ALJR 33.
"Where facts are in a Jury's judgment essential to its decision (sometimes called primary facts) such facts must be established beyond a reasonable doubt".

7.1. The tender of the black ripple sole shoes had a far greater prejudicial effect than any probative value that they had because the media reported "black ripple sole shoes".

There has been a miscarriage of justice in that I was not properly represented at my trial because of:

The failure of my counsel to act on my explicit instructions.

Particulars:
(Al	Failing to call	John Michael	Lewis to	give evidence of alibi.

{ B)	Failing	to	cross-examine	Miss	•....
Detective Gage on the conflict in evidence at committal concerning circumstances surrounding Miss

and their
the

5

( C)

*  -

(D)

( E)

identifying me as her assailant  at  the court room - where I stood charged of another rape.

Failing to cross-examine Detective Gage on her evidence at committal that she had seen an identikit picture prepared by Miss .....
and as to why it was not produced. to the court at my trial.

Defence counsel called for its production at committal.

Failing to cross-examine Dean Teau concerning whether Miss ..... had said to him - "He is trying to rape me'' C.T. or "This bloke has just raped me" T., when they first spoke after the alleged assault.

Failing to cross-examine Stephen Kilinko as to the behaviour of Miss ..... and her alleged assailant shortly after the offence alleged.

( F)

Failing to	object to Crown	witnesses	who committal.

the non-production	of gave	evidence	at

(G) Failing to cross-examine various police officers who gave evidence, as to what tests were conducted on the clothing seized by police from my home and to the results of such tests.

The failure of my	counsel to conduct the	defence case in a reasonable and competent manner.

Particulars -
Failing to put the Crown to proof that a rape had occurred.

( B)		Conceding that	a rape instructions from me to weight of the committal

had occurred without do so and against the evidence.

(C) Failing to take any or any adequate steps to ensure that all relevant evidence was before the Jury, whether by way of oral evidence or by was of agreed facts or by some other means.

Evidence that should have been before the Jury but which was not; included  the evidence of the following persons:

Ms Joy Kuhl Leslie Bull
Mark Gregory Dolton
David Jennings
{D) Failing to object to the tendering of  my black ripple sole shoes by the Crown.

{El Failing to object to the acetate tracings and photographs going into the Jury room with the Jury when the Jury retired.

8A. That there has been a miscarriage of justice in that the appellant was not properly or competently represented because the appellant's counsel at trial, being aware of the importance of the odontological evidence in this case, and being aware from the Carroll case that there is a body of expert opinion which says identification based on examination of teeth and comparison with bruise marks is not reliable, failed to secure an expert to give expert evidence of such unreliability.

•	{A)	The le rned Trial Judge misdirected the about the evidence relating to when Teau first seen a photograph of me.

Jury had

{B)	The learned	Trial	Judge erred	in	that	he directed the		Jury	falsely that		Miss	.....
gave a truthful answer	about not being	able to breathe	during	the alleged	attack	upon
her.

There has been a substantial miscarriage of justice when the defects in the conduct of my trail are looked at in totality.

For the sake of completeness it is necessary, utilizing court files, to chronologically set out some matters which preceded the trial, as the appellant has been involved in two other charges, and three hearings

in this court, for	offences which allegedly	pre-dated the offence in question.

24.7.1984

21.12.1984
18.1.1985
8.2.1986

Alleged offence against female M Alleged offence against female S Alleged offence in this matter
Arrested on present and another or other charges

23.9.1985

20.10.1986

Trial aborts and Jury discharged

30.4.1985-	Committal proceedings on present charge	
2.5.1985		
4.6.1985	Trial for alleged offence against M
- Appellant acquitted	
18.9.1985	Trial for alleged offence against s	

Second trial for offence against S
Appellant acquitted
Trial, the subject of the appeal commenced.

I mention this for two reasons. The first is relevant to his ground that his counsel negligently applied himself to the defence. Some of his submission implied that the case slipped away from him, that his counsel disobeyed his instructions, was weak in his defence and made improper concessions. Having observed and heard the plaintiff for 4 days I am not by any
means	satisfied	that	this	was	so.	The	appellant
displays an understanding of court procedures, is an assertive person and not likely to sit back when his interests are  neglected.  The  second is  that he   was

clearly a person who was likely to come under police suspicion in the course of the police search for the unknown assailant of the prosecutrix in this case, particularly as he and she had been at the same disco earlier during the night in question, a disco to which he appears to have been a regular visitor.

. I am not fully aware of the reason for the delay between the date of the appellant's committal for trial on 2nd May 1985 and his trial 17 months later. It does, however, appear to be common ground that there was an association with the Queensland case of Carroll, where forensic odontology evidence became a critical issue. {See Carroll (1985) 19 A Crim.R 410). The same issue was raised in this case and Dr Sims, one of the experts there concerned was here an important witness for the Crown. The Court of Criminal Appeal delivered its reasons in Carroll on 27th November 1985 and we were told the parties were awaiting an appeal to the High Court. Apparently, special leave was refused. I note with some concern, in view of the nature of the forensic evidence, that the transcript reveals no discussion concerning Carroll and it may be the Trial Judge was unaware of the judgment of the Court of Criminal Appeal in Queensland.

I turn now to a brief summary of the		factual background.		On the night	in question the		prosecutrix had spent some		hours at the		Victoria Hotel in		Darwin with friends, including her	boy friend, with whom	she  was	living,		Dean	Teau.			Apparently		she		had			a disagreement with Teau and she returned to her room		at Lameroo Lodge.		There she showered and, accompanied		by an employee		of			the		Lodge,		she	visited		a	disco Squires.	She		stated		in		evidence	that she was menstruating heavily and she decided to return to the Lodge - only a short walk. As she left she  was 'hassled' by a young man, she claims to have been the
accused, who clearly wished to accompany her home. She rejected the approach but the man followed her. As she crossed a lawned area adjacent to Spillett  House, itself adjacent to the Lodge, the man desisted and she saw him standing behind her adjacent to a swing. She continued on only to find herself grasped, thrown  to the ground and raped, despite her screams. She complained of feeling ill and  the man offered to  take

her to hospital.	She and to	Mitchell	Street,

her assailant walked out	on where	he	hailed	a	taxi.

Fortuitously, Dean Teau arrived at the same time, she called out words to the effect she had been raped and Teau attacked her assailant who, by this time, was seated next to the taxi driver. The assailant  was pulled from the car and Teau .applied a headlock, but

her assailant escaped after biting Teau severely on the chest. The fracas was witnessed by the taxi driver Kilinko (who gave evidence) and by one Bull who was seated in a nearby car. He gave evidence at the committal proceedings but the prosecution could not locate him at time of trial, not an uncommon situation in Darwin with its transient population. Endeavours by defence counsel to have his depositions put before the Jury were unsuccessful as the Criminal Code and the Evidence Act contain no provision for this to be done. The taxi driver Kilinko radioed the police, who quickly attended the scene. The prosecutrix was taken to hospital and gave such information as she could to the police. The appellant was not spoken to by the police for some days afterwards. As a matter of history, the following day the appellant was severely assaulted by some men, as a result of which he received facial injuries and damage to some teeth which required the attention of a dentist. I mention this as  it  was common ground that by the time the prosecutrix  was asked to identify him, he bore a beard. On  the evidence, which was not really in dispute, this was due to difficulties in shaving after treatment for his facial injuries. The suspicion which might otherwise attach to the altered appearance was thus explained. Police investigation at the scene yielded no forensic evidence involving the appellant. The girl's
,

blood-stained dress, superficial injuries, dirt and the like were wholly consistent with the alleged rape. Two tampons recovered at the scene were consistent with her account. Medical specimens taken from the girl, and later from the appellant revealed no evidence to identify the appellant as assailant. Clothing later seized from the appellant revealed no relevant blood, hairs or the like to associate him with the crime. It was common ground that the accused was present at Squires disco that night and it was also common ground that he wore black rubber soled shoes. The police discovered one shoe print in the area by the swings, where the girl last saw the man standing. His  shoes were seized and went into evidence although forensic efforts to match the relatively clear shoe print with the appellant's shoes had failed. The shoes was of a type worn by many. The appellant has  consistently denied that he was present when the alleged rape occurred and he made no admissions. After arrest, the appellant willingly supplied body samples and underwent a dental examination. Dental work, with his  consent, was carried out by an odontologist, Dr Plummer,  who took impressions and made a model of his teeth. These were 'matched' with the bite marks (more strictly bruises) depicted on a photograph taken soon after Teau had been bitten. The photo was taken from one angle only. At trial Dr Plummer and Dr Sims, Honorary Senior

'

Lecturer in Forensic Odontology, University of London, gave evidence for the Crown and with some confidence expressed the view that the wound inflicted on Teau's chest as depicted in the photograph was caused by the appellant's teeth. As a matter of interest,  Dr Sims gave  evidence  for  the  Crown  at   the  trial   of Mrs Chamberlain and later upon the trial of Carroll in Queensland (supra). His evidence in the latter trial related to matching of photographs of a bite on  the dead child's leg, the same processes being involved.

By reputation Dr Sims is an eminent man in his field. The defence also called a specialist in Orthodontics, Dr S.D.Dalitz, also a man well qualified. His emphasis was a little different to that of Dr Sims and Dr Plummer, but he did not take issue with the techniques they applied.

At trial the relevant evidence called by the Crown and which fell for consideration by the Jury fell into two main categories:

Evidence of lay identification of the accused as the assailant;	and

Evidence concerning the bite marks.

,
13

The accused gave sworn evidence denying his guilt. In addition to the witness, Dr Dalitz, his counsel called his mother, who deposed to the time of his arrival home on the night in question and a friend, Dennis Herbert, who swore he drove the accused to his home from Squires early that morning and spoke as  to the time of the journey.

I propose to deal with the matter under four main heads:

The appellant's	grounds	based	on	the negligence and conduct of his counsel.

The evidence of identification.

The odontological evidence.

The time factor and the alibi evidence.

CONDUCT OF COUNSEL:

I propose to deal with this shortly. It is not unusual for a disappointed litigant, especially a convicted accused, to blame his counsel. In this case

the Crown was	represented by Counsel, Mr Glissan Q.C.	The

most experienced	Queens accused was	represented

14

by junior counsel not of great experience in the Criminal Court. It can be said the scales of  the quality of representation were not evenly balanced, but that can be said after most forensic tussles. It provides in itself no  ground of appeal.  The  relevant
authorities are referred to in re Knowles 1984 VR 751@ 766-767.	{See	R v.	Sarek (1982)	VR 971	©	982-983;
R v. James McCall (1920) 20 SR (NSW} 467 per Cullen CJ.
@ 472).

The appellant's grounds 8.1, 8.2 and 8A particularize his complaints and I do not propose to deal with them seriatim. During the conduct of the appeal the appellant's principal complaint centred on his counsel's failure to put the fact of rape in issue. He says he wished this to be done. Having read the depositions I consider so to act would not have been in the appellant's interests. His defence was simply  "I was not there". The evidence of a rape having occurred was in my view overwhelming. Counsel, in planning the conduct of the defence, must be mindful of  its emotional impact upon a Jury. To put a Jury "off side" by an abortive attack on a rape victim's evidence  is not wise when the vital issue is identity. To have contended that the prosecutrix in her condition, and at that place, consented to sexual intercourse would have been an exercise in futility. It could have served no

. "

purpose and, in my opinion, would have jeopardized the appellant's prospects of acquittal. I am  satisfied this was counsel's advice, that it was good advice and that the appellant did not at the time take issue with it.

In considering the appellant's complaints I have read not only the transcript, counsel's addresses and the summing up but also {as we were invited to do) the depositions in the Magistrates' Court. I will return to one or two aspects covered by these grounds later. I am far from persuaded that leave should be granted on this ground and I would reject the appellant's application that his counsel and solicitor should be called for cross-examination on these issues. There are firm reasons of policy for this decision. As re Knowles illustrates there are cases when the conduct of the trial and the decision to call or not call evidence may, as it were, speak for themselves and be examinable. To enlarge the scope would place the  law in an intolerable position. As my brother Asche commented in the course of the appeal, one would need a battery of appellate judges to cope with the appeals of those prisoners who are likely to become wise after the event, the event being the jury's verdict of guilty.

EVIDENCE OF IDENTIFICATION:

The evidence of identification was most unsatisfactory. The prosecutrix and the appellant were strangers. After the event the prosecutrix  desisted from attempts to put together an 'identikit' facsimile. This may have been, as she said in evidence,  because she was tired and distressed. She identified a yellow shirt, introduced into evidence after seizure from the appellant's home, as the shirt her assailant wore. As the Trial Judge reminded the Jury, the shirt, on the appellant's evidence belonged to his brother. Her evidence at trial was that her attacker wore "a light

coloured	cotton identified		did

shirt". not	prove

The	yellow	shirt any		association

she
under

examination by  the  forensic biologist  Mrs Kuhl.   On
8th February, about 3 weeks after the rape the police arranged a line-up for identification purposes. The appellant had agreed to participate but his solicitor apparently advised him not to. She was then taken  to the Magistrates' Court where she saw  the  appellant. She said she recognized him as the person who raped her (19).  She said "He had changed his appearance       he
had his hair cut short, and had started growing a beard''. Upon return to police headquarters she  asked to see the appellant again and she was taken into a court room where he was seated and she again told the

police the appellant was her assailant. Her  evidence in cross-examination of this second appraisal of the appellant was as follows:

"I think you went back to and spoke with Detective
---- Yes.

the police Lee Gage, a

station woman?

Did you say to her words to the effect that there's some sort of problem with identification?---- No. I identified Lewis, but he had his hair cut and he had grown - he was trying to grow a beard.

All right, you said that. My question was, you went to Lee Gage and said "There's some sort of problem with identification", didn't you?---- I didn't. They weren't the words I used, no.

You said words to the effect that it might be the person, or a similar person, except that a person that you saw in the foyer had a beard and a bit shorter hair; isn't  that what you  said to  Lee Gage?    Something like that, yes.
So you couldn't at that stage be sure? I
was sure, except that he had changed his appearance.
You said just in answer to my previous question that it might be the person, except that he had a beard and shorter hair?
Well, I knew it was Lewis but he'd just changed his appearance, that's all.
Then you were escorted back to the courthouse by some police officers and a second identification was made? Yes.

At that stage did the police say, "Look, come back and have another		look''?---- They	just said - yes, not exactly that but they said they took	me	back	a		second	time	to		the courthouse.
HIS HONOUR:	Would you mind repeating what you just

said?---- The police took me back to the courthouse to make identification the second time.

MR ADAMS: Had you told them about seeing the man with the beard and the shorter hair who might have been your assailant?	Yes.

It was	then that they	said come	back	for another look?	Yes''.

Dean Teau's evidence was far  from satisfactory on this issue and on the facts, of his encounter his opportunity to observe was limited. He agreed with defence counsel that he was "pretty drunk" that night. ''In fact you were blind, to use  your words, weren't you? Yes, pretty out of it". He also purported to identify the appellant after seeing him in the Magistrates' Court. He was cross-examined upon his evidence in the committal proceedings:

"Read the whole page if you like, third of the way down, I suggest, some marking which I have made?

but about a you'll	see
"Were

there many people seated in the court?''
Read it to yourself	now at this stage? Right.
Yes, could I have that back, please?  You gave that evidence to the learned magistrate on 1 May 1985? Yes.
Approximately 4 months, maybe 5 after the attack on your de facto wife? Yes.
At the stage of giving your evidence, you went into court and you said it was full, the court room? .Yes.
I think you were asked this, "When you looked in, did you make any 0bservations in relation

to any persons in that room?'' Do you agree with being asked that question? Yes.

I think you answered - and disagree with me if you like - ''I've seen one bloke in there who looks something like him''? Yes.
Is that what you said then? Yes.

You were asked, ''Do you recall on " and that's all the question that's recorded, and your answer, "But I couldn't be positive, you know"?  It was  4 months  later and  the bloke had changed his appearance and he looked like the bloke it was''.

"Your evidence on that occasion boiled down to this: you were blind, he was stocky, and you can't remember anything else? That's
what it says on the paper there.
That's what you said in May 1985, isn't it?
---- Yes.

And now you're		saying you that it	was	Mr Lewis? confident then.

can be	confident
I	was	pretty

That's not what you said?---- It was 4  months later, and the' bloke had grown a beard, so I couldn't be positive, you know, I would be lying if I said I was positive, if I'd said, "That"s the bloke".

Both the prosecutrix and her de facto husband Teau, had seen the appellant subsequently - in fact, there had been an altercation between the two men about a week before trial.

The evidence of the taxi driver Kilinko was important on this issue. He was called by the Crown to describe what he saw when his taxi was hailed by the

attacker and from which that man was forcibly extracted by Teau. Towards the conclusion of his evidence  in chief he was asked:

''I think sometime after that, on 8 February 1985, you were asked to go to the police station, and then to the Magistrates' Court, is that right?---- I'm not sure of the exact date but, yes I ---

No but there was a day, some.weeks later, when you did that? Yes.

You went to the Magistrates' Court, is that right? Yes.

You looked around but you were unable to see anybody that you could identify as the person that first got into  your cab?  That's right".

He also had been asked to attempt an identification at the Magistrates' Court and he pointed out ''a man who was closest in appearance to the man who got into my taxi" a man who he stated in evidence was
not Mr Lewis. After his cross-examination closed the Trial Judge thanked him for his evidence and gave him permission to leave.  He stood his ground and said "Its

just Your Honour	that I feel	obligated to the

 	 11

He was told to say no more and left. After the adjournment that immediately followed, defence counsel applied for leave to recall the man. The Trial Judge acceded to this request. Defence counsel referring to the man who had seated himself in the front seat asked:

,

"Now, the man	that got in the cab, he	sat, was it in the front seat?	Yes.

Are you able to describe th•t	an?	Yes,
he was a big man with san4r coloured hair, coarse sandy coloured hair. It looked to me, he had Swedish fe•tures, • e     nr  looked like a
- like a seaman to me. F• • • that type of fellow, a big rough stocky l<->i..Ld.

I'll ask	you that man?

directly, Mr	linko,	was	it No, that's i,µ,t 'tl.\at man".

Mr Glissan then cross-examined him and perhaps succeeded in demonstrating that his ability to observe his passenger was limited in time and that events were hectic. The fact is that in contrast to the prosecutrix and Teau, there was no evidence to suggest Kilinko had consumed alcohol, the passenger was seated alongside him for a brief spell, the interior lights of the taxi were on and it was Kilinko who immediately radioed the police. There was no suggestion in cross-examination on this issue by the Crown that the description of his temporary passenger given in court differed to any description he may have given the police after the event. It is a pretty safe assumption that he would have been asked for a description. The Trial Judge in his summing up emphasized the importance of his evidence, stressed he was a "sober man a disinterested person merely trying to tell the truth as he recollects it". I will return to Kilinko's evidence later when considering the alibi evidence.

His	Honour		dealt identification		with	care

with	the	evidence and	in		accordance

of with

authority.	He concluded his remarks:

"If that evidence stood alone, ladies and gentlemen, it's a matter for you to make up your minds about it but you might well consider that bearing in mind the intrinsic danger of eyewitness identification, and the differing evidence which those eyewitnesses have given you, you might decide that you could not safely find a verdict of guilty against the accused''.

ODONTOLOGICAL EVIDENCE

I now turn to the odontological evidence, but first it is necessary to consider briefly the injury to his teeth which the appellant had suffered between the time the pr secutrix was raped and Teau was bitten and the time of Dr Plummer's tests on 8th February 1985.

Dr Dragevic attended the appellant on reference from the casualty department of the hospital at 9pm on 19th January, the day he had been severely assaulted. She found a fracture of a previously restored upper tooth on the left hand side. An upper tooth on the opposite side had been "pushed'' inwards, was tender and associated with lip bruising. An adjacent tooth was tender, but not mobile. A lower tooth on the right was chipped at the rear. The four

'
23

central teeth on	the lower	jaw were	tender "but	not
particularly mobile."		Another tooth en the lower right had	a	"tiny	chip"	which	was	net	in	her	view,

associated with the assault. tooth	which	had	been

She t••e• ed to the upper displacti	i.e. she

"repositioned" it.	She saw	the a_ri,.,1 l 1rnt a couple	of
days later when he complainad that th		lower teeth were sore.		She extracted			a very sensitive		tooth from			the upper right jaw.	On 31st January she ground two	teeth on the upper right and two	teeth on the lower right apparently to relieve pain experienced on biting.			She was unable to speak		as to the		extent of the		grinding back.		That		was	the			extent	of	treatment	prior			to Dr Plumrner's tests.		Dr Dragevic had made no note		that the teeth she ground were mobile.	Her recollection			is they	were	tender	not	mobile			i.e. loose.			The appellant complained they were loose for some time.

I previously commented that in the struggle with the man he pulled from the taxi and upon whom he applied a headlock, Teau was bitten on the chest and he suffered severe bruising and possibly some laceration, as a result of this event. The nature of the  teeth marks is shown on Exhibit 16. It occurred on the right side of the chest some centimetres above the right nipple. Teau was a well built young man and that  area of his chest was relatively firm and flat, when he was

24

standing erect with arms by the side as depicted in the photo. It vas common ground these bruise marks were left by about 5 teeth of the lower jaw. No teeth marks attributabl• to upper teeth were visible.

On Ith February 1985 Dr J.R.Plummer, a dental surgeon with experience in Forensic Dentistry,  which has apparently gained reputation as an  accepted physical science, performed work for the purpose of determining whether the appellant's teeth caused the bruise marks. The technique was similar  to  that applied in Carroll. It involved the taking of impressions of the teeth and the production of a model of the teeth - i.e. a true three-dimensional replica of teeth in the upper and lower jaw illustrating their individual characteristics, relationship one with the other and the general arch. By the use of a clear cellulose acetate sheet the outline of the  chewing edges of the teeth was then traced by the use of a fine pen. This was then applied to the photographed bruise, the dimensions of which were known (and signified by measure in the photo) for the purpose of determining whether there was correspondence.  Dr Plummer determined, and expressed his view with  confidence, that the appellant's lower teeth had caused the injury. Soon after he had done his tests Dr Plummer wished to confirm his opinion with another odontologist, Dr Ken

Brown (who gave evidence in Carroll). He found he and Dr Sims, who he described as ''the doyen'' in this bra ch of science, were then in Brisbane. He visited ti'mt city and displayed the models, the acetate overlay
the	photographs	to	Dr Sims,	who	'confirmed' opinion.	Some time later, in the course of a Churchill Fellow hip in London, he	again conferred with	Dr Si s concerning the matter.

Dr Plummer	told	the	Jury	that	"a correspondence can be easily seen between the marks	on the photograph and the incising edges of these	teeth".

He	stated	the	work	carried	out	by beforehand did not	affect his opinion.

Dr Dragevic He stated	it

was "possible but highly unlikely'' that another person in a population of 65,000 (Darwin's approximate population) could leave a similar impression in human flesh. He himself was ''100% certain" that the marks were left by the appellant's lower teeth.

Dr Bernard Sims, no doubt a leader in this field, confidently expressed the opinion "that  the teeth on the model represented the teeth which made the bite mark". ( 202} It is apparent that in his cross-examination the appellant's  counsel  drew  upon Dr Sims' evidence in Carroll and a section of his

evidence referred to	by Kneipp J. put to him.

In	evidence,	Dr Sims differing expert opinion explained:

(@ pp.414-415)	was

when	referring	to

"This is the problem we have in all bite marks procedures, that it's very difficult to pursue scientific research into bite marks, as you can well imagine. Most of our bite mark experience is gained from practical means, perhaps on cadavers, and certainly in cases of rape and assaults and affrays, but it is very difficult to conduct any sort of scientific research. For number one, if you think, it's very difficult to get volunteers to be bitten on various portions of their body, sometimes quite painfully. You can get no end of volunteers to do the biting. It's difficult to get hold of research in this position, and it - it still falls in the great deal for most of us who work in the practical field of things, we are sometimes a little bit dissociated from the scientific areas. There's there's not very much compatibility. This is why we have to have those symposia to get together. Unfortunately, as well, most of the references which refer to the exclusion of persons rather than the inclusion of persons, are those papers which are written in the 1960s and 70s. Professor Fernhead's quotation is 1961. He hasn't written anything on bite marks since that time.

There is a		great deal of	enthusiasm at present moment and certainly in all parts the world	including		the United	States here, where there's	a great	deal more

the of and bite

mark	evidence	being	carried	out scienti:ic means.

under

Doctor Fernhead I think was your tutor at one stage? --- He is responsible for getting me into forensic dentistry, yes.

'	27

I think, years you years.	I

it is true to say that agreed to disagree? --­ still do it every time I

over	the
Over	many
see	him.

Part	of	the	problem	with	bite	marks identifying assailants by way of bruislnq		in human flesh, I take it, is the fact - or		can be - that often one only has a photoQraph		to work with, not	the actual body		as it		were?
--- That's correct".

It is, I think, accurate to say that Dr Sims' personal views were not shaken, but he was not dogmatic

and	he	unhesitatingly difficulties	involved.

explained
His

some	of
evidence

the

in

cross-examination concluded with this passage:

''With		the		factor,		with		with			factor		that bruising	marks			often			only				come		from photographs and in this			case have come		from hotographs, there can		be distortion	whilst the	bite		was		being			made		and	perhaps afterwards if the victim's moved and with the art involved in tracing, you'd have to	agree that when there's only			5 or 6 teeth in		this case, you'd have to agree, would you, that no one	could		be	100		percent	certain			that Mr Lewis' teeth had left those bit marks? - I don't think anyone could be 100 percent		sure in any case		unless one was an eye witness, but in the material which has been provided to me, and certainly the differentiation of those marks and the significant dentition of the accused, it's my opinion that those teeth
are his teeth which have produced that mark.
If someone was	to say	they were	absolutely
100 percent certain, and they were clear about that; in this case I think you'd agree with me that they were overstating their position? --- Very much so''.

28

The appellant's counsel called Dr G.D.Dalitz, an expert in Forensic Dentistry,  from Melbourne. He had heard the Crown evidence on this topic. He expressed the view upon Dr Plummer's workings that the teeth h•t left the marks were ''similar - not a perfect match". His evidence, or the manner in which it was transcribed, is a little confusing. An attempt was apparently made by the appellant's counsel to demonstrate to the Jury, by  means of a  cast made  by Dr Dalitz of a patient's teeth and an acetate tracing from that cast, some similarity with the photo  of Teau's wound. But objection was taken and the evidence was disallowed as the cast had not been put to the Crown's experts in the course of cross-examination.

The	balance

of	his	evidence	is	not	readily

comprehensible.

"Doctor, I think you've been present in court for the last couple of days? --- Yes I have.

And you were here when Bernard Sims was both examined and cross-examined? --- Yes.

I take it that his is an opinion which you would respect? --- Yes.
And an opinion with which you would not like to disagree? --- No.
And indeed an opinion with which you haven't really in your evidence disagreed? No, that's correct - I haven't disagreed.

No, you haven't. Doctor, so far as that is concerned, you were asked in relation to the teeth impressions that you took and translated onto the acetate, whether or not

they matched, and you said in each case there were some similarities, and you were present when Mr Sims was asked about each of the same ones that you were asked about, in turn that's number 2, number 5 and nu ber 4?
Yes.

You heard what he in matching that Yes.

had to say about the errors could be demonstrated?

I would take it you agree with what h•	said?
No.

You don't agree with what he said? --- Not particularly.

Is there any particular matter that you want to refer to in that regard - in relation  to 2, 4  or  5?  Not  especially.  You've mentioned the arch width of our learned friend, but it's not different.

Is that the only
You	could

real distinction you pick	points	about

draw?
all

these - the point
exercise there".

- there was	a point in	my

It is probable he was referring to the exercise in which he wished to demonstrate another arch or arches, including that displayed in a cast taken from defence counsel a few days before. Against the background of this case and my previous and subsequent remarks I am uneasy about the impact of this evidence upon the Jury. There are several reasons for this.

The science of Forensic Odontology is developing still - perhaps with some acceleration over the past decade. Here there was only bruising by the lower teeth - admittedly unusual. The cutting edges of

the teeth alone are matched - it can not be a three-dimensional test. The photo was at only one plane. If Teau was applying a headlock the contour of his chest flesh cannot be assessed with certainty. The biter was in a headlock. The teeth may have slid - the flesh at the site of the bruising may not have been held firm by the "nip" effect of  a bite  by  both jaws - i.e, the skin may have moved. There is still a body of opinion that casts some doubt on the processes of positive identification by these means, as opposed to the exclusionary purposes referred to in evidence. (See Gradwohl's Legal Medicine Chapter 10 @ p.141). ''The interpretation of such marks requires experience in order to assess whether the suspect is responsible or not, and it is often simpler to exclude a particular person rather than to identify positively the person who made them In order to record  the  marks accurately the victim must adopt or be placed in the position in which the attack took place. Any movement
will distort	the tissues,	rendering the	measurements

inaccurate".	(Dr Sims chapter).	This	branch

was	a	co-author of forensic	science

of
has

this not

advanced	to	the	stage	of	say	fingerprints	or
ballistics. The result is a matter of judgment, not easily, or at least accurately demonstrable to a Jury, the techniques depend on human skills, not only in interpretation but in preparation.

31

Taking these factors into account and being mindful of the dental treatment the appellant had undergone between the date of the crime and the making c! the cast, I find myself very uneasy and in the position of the members of the Court in Carroll above. I refer to passages from the judgment of Kneipp J.:

''The evidence			clearly established		that		the study of			the characteristics		of human	bite marks	and			consequent		identification			of persons			responsible		for		such		marks,	fall within		a		field	of		expertise,		and		the witnesses called for the Crown (no expert was called for the		defence) are	all experts			in that field.			Their		evidence was		that	each person's			dentition			is		unique,			so that comparison of a person's dentition with bite marks may be the basis of a conclusion as to whether or not his teeth produced the marks. But plainly the reliability of the conclusion will depend on a variety of factors, and one of the factors will be the type of mark which has been produced. The biting of part of a person's body may produce lacerations, or indentations in the form of impressions made in the skin without any lacerations, or mere bruising. In the present case, there were not any lacerations or indentations. There was bruising only; and whatever might be the reliability of identifications made where there are lacerations or indentations, it seems to me that the effect of the evidence is that one can only have serious reservations as to its reliability where there are bruise marks  only. "Unfortunately, the bases for the disagreements between the schools of thought were not canvassed. Mr Sims supported his view by reference to his experience. But a number of problems were acknowledged during the course of the evidence. Some related to the difficulty of accurate reproduction of the bruising. A photograph of part of a human body results in reproduction in two dimensions of a three-dimensional object, with possible distortion. The bruise marks
in question	were on	a curved	surface,	and

this might also cause distortion. The shapes of bruise marks can alter if the body is placed in a different position from that in which it was when the marks were made. The marks here were near the knee, and their shapes might be affected by changes in tensions of the skin caused by extension or flexion of the knee joint,  The  reproduction of relevant dentition marks on an acetate also involves a change from three dimensions to two, and the marking of the tracing is not a mechanical process but a matter of judgment. The final step, that of comparing the tracing and the photographs, is also a matter of judgment".

It may be that this type of forensic evidence is becoming important in the forensic field but as I understand the evidence there is no established universal view as to its reliability in identifying, as opposed to excluding, a suspect. Bruising  or  its degree must be variable when teeth and the body are in motion and the admissibility of expert evidence in this situation may be a matter of some doubt. Speaking for myself I do not consider it was of itself a sufficient foundation for conviction. There may be cases where it will be a link in a chain of circumstantial evidence, but here upon my view there was no chain. There was no other reliable circumstantial evidence, save for the appellant's presence at Squires earlier that night, linking him with the rape.

'

TIME FACTOR AND ALIBI EVIDENCE:

The appellant told the Jury he left Squires at about 1.15am to 1.30am and was driven home by his friend Dennis Herbert, who gave evidence to this effect and who was pretty battered under cross-examination in the process. Mrs Lewis, the appellant's mother, swore he arrived home at about 1.30am. The Crown objected initially to this 'alibi' evidence as no Notice of Alibi had been given pursuant to Section 331 of the Code. However, it emerged that the committing magistrate had not informed the appellant of the requirements of the Section 331(3) and the evidence was given. Whether or not it was truly alibi evidence, depended on the evidence as to the time of the rape,
and I refer to it briefly.

The prosecutrix,	who	had		consumed	alcohol earlier,	said	she	arrived	at	Squires	at		about
12 o'clock and she left about 5 minutes later (6). On her evidence the rape took place soon after midnight. Clearly, she was in error. Teau, who agreed he was drunk, stated he left the Victoria Hotel where he had been drinking in the "early hours of the next morning". Karen Byrne, a barmaid at Squires, said she last saw the appellant there "about 1 o'clock (66). Barry Clee, the duty  manager,  stated  he had  seen  the accused

earlier in the evening. He left and returned "at about quarter past one'' (69). He did not then see the appellant or his friends. David Bannister, another barman, told the Jury he last saw him at 12-12.lSam (71). These estimates do little to assist. But the taxi driver Kilinko said he was hailed at about 2am and this must have been very shortly after the rape occurred. He radioed the police from his cab shortly after and he said the Police arrived ''quickly". Detective Moseley was called to duty to investigate the matter at 2.30am and Lee Gage, the other detective, said she came on duty about 2.15am. The Crown for some reason did not call the police who answered Kilinko's summons. I would have thought such evidence would have been available. The only finding that could properly be reached is that the rape took place sh0rtly oefore 2am. If, therefore, the accused had reached home between say 1.30am and 2am, he could not have been involved.

Both the accused and Herbert had been drinking heavily. They had attracted the attention of employees at Squires earlier that evening. Herbert had a criminal record of which Mr Glissan Q.C. made good use in both cross-examination and address. The Jury may have disbelieved both of them - indeed the 'alibi' evidence may have rebounded against the appellant as

,

Crown counsel submitted it should. Undoubtedly, there were features of it which  were  unsatisfactory. Although I bear in mind the care one must take, without the advantage of seeing a witness, it is clear to me that the evidence of Mrs Lewis fell into another category. Her testimony was that on the night in question she returned home about midnight and went to bed. Hearing a car pull up she looked through the louvres and saw Herbert's car. The appellant entered, and knowing her two sons had gone out together  she asked as to her son John's whereabouts. The appellant replied he had gone to the casino. The appellant  went to his room and she heard music.  She stated this  was at 1.30am. John arrive·d home 30 minutes later and she asked him to turn the music down. She said she relaxed then. "I was happy that they were both home." Under close cross-examination, she said she was "positive" of the time, "absolutely sure'' as she had a bedside clock. She said "I never can really relax until they get home. That's the way it is'', an understandable parental sentiment. Her evidence was relevant  on  another matter, the length of the appellant's hair at the time. She swore it was always relatively short.

This was most important evidence.  If  the Jury considered it was possibly true then it followed the accused could not have been convicted of the rape

which occurred	at about	2am.	The	Trial Judge	dealt with it shortly and without emphasis.		He said:

''Then Mr Lewis also gave evidence which generally supported Michael Lewis' account of his coming home in the early hours of
18 January. According to Mrs Lewis he came home at about half past 1 that morning. Again, I don't propose to take you to any detail in her evidence, but that's the general thrust of her evidence, to support her son's account".

With respect	I	consider	the	evidence	as	to	times deserved closer examination in the summing up.

There are other aspects of the trial which cause concern. As I have said, the rubber shoes the appellant wore on the night in question, of a type commonly worn, were introduced in evidence as an exhibit. They were seized with a view to matching with the shoeprint found near the swing and depicted in Exhibit 10 - a pretty clear print. As the evidence of Detective Metcalfe indicated, attempts to match the appellant's shoes to the shoe mark by tests in Victoria failed. It is a reasonable inference this was because they could not be matched. The Trial Judge suggested to the Jury that they could not safely "link" the appellant to the crime by reason of this shoeprint. It may have been advisable to go further and emphasize that they may indeed conclude it was not made by the
,

appellant's shoe. His counsel did not object to the tender. The danger is that the shoes being an exhibit, the Jury may have been left with an impression that there was an association between the shoe and the print when on the evidence the only inference was that there was no such demonstrable link. The shoe should not have been in evidence. It may have been marked for identification, but in the absence of proof linking it with the shoe print it should not have been dignified as an exhibit. It had no probative force, but the Jury may have been led to think otherwise by its mere presence in the jury room.

Section 410 of the Code provides for appeal from conviction by leave on a question of fact or mixed questions of law or fact. Section 411 provides for the determination of the appeal:

"The Court on any such appeal against conviction shall allow the appeal if it is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court of trial should be set aside on the ground of the wrong decision on any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal''.

Sub-section (3) provides that if the Court allows an appeal it shall quash the conviction and

direct a judgment and  verdict  of  acquittal.  Section 413 empowers the Court to order a new trial if a miscarriage of justice can be more adequately remedied in that manner.

I have reached the conclusion that the verdict cannot be supported, having regard to the evidence. The grounds of appeal submitted by the appellant himself are not really appropriate as he encapsulates most of his complaints in grounds which relate to his counsel's conduct. It is not desirable that leave should be refused because the grounds are inappropriate when a prisoner is unrepresented. I would grant the appellant leave to amend his grounds of appeal by including the following broad ground: ''Having regard to the evidence given at the trial, it is unsafe to allow the verdict to stand".

I have considered the matter in its entirety. The evidence of identification of the accused as the person at the scene is entirely unsafe. The evidence raises a very real possibility that the accused was at his home when the rape occurred. It would be unsafe to allow the conviction to stand on the basis of the odontological scientific evidence. There being no admissions and no other forensic evidence linking the accused to the rape, save the fact that he was at

Squires during the evening in question, there was	just not sufficient evidence to justify his conviction.

I would give leave to appeal on the ground set out above, subject to the amendment and I would also gi,e leave to apyeal on grounds 7 and 10. I would not give leave to appeal on the other grounds.

I am persuaded that the Jury, acting reasonably, should have entertained such a doubt as to entitle the accused to an acquittal. See Chamberlain (1984) 153 CLR 521 per Gibbs CJ. and Mason J.@ 534:

''To say that the Court of Criminal Appeal thinks that it was unsafe or dangerous to convict, is another way of saying that the Court of Criminal Appeal thinks that a rea6onable jury should have entertained such a doubt. The function which the Court of Appeal performs in making an independent assessment of the evidence is performed for the purpose of deciding that question."

I do not consider it appropriate to order a new trial. That is what the appellant seeks in his amended grounds, but it is probable that he was influenced by remarks from the Court, when the consequence of the appeal being allowed because of his counsel's conduct was being discussed. It is well over
3 years since the rape took place.	It is probable that the prosecutrix	is now	the mother		of a	child.	The

'
evidence produced by the Crown is unlikely to be stronger - in fact if the Crown calls the witnesses it
was unable to call, its case may be weaker. The evidence of the witness Bull was important from the defence view as to time and was favourable to the appellant as identification. A long interval elapsed between committal and trial. The appellant has already served 14 months of the sentence imposed.

I would allow the appeal and quash the conviction. In conclusion I would thank Mr Tiffin for the assistance he gave in his somewhat difficult  role as amicus curiae.

,