Man likely to face trial on cold-case rape

21 Sep 2012, 5:43 pm   -   Source: AAP

A man accused of sexually assaulting a 70-year-old woman in 1991 has lost his Supreme Court appeal to permanently stay the charges.

A man is likely to face trial for raping an elderly Holocaust survivor more than 20 years ago, despite the woman having since died.

Police allege that Robert Paul Webb attacked the then 70-year-old woman in an underground car park in Surry Hills in inner Sydney on November 1991.

But it wasn't until DNA evidence was re-examined by cold case detectives that the 39-year-old was charged in 2011 with aggravated sexual assault, assault with intent to have aggravated sexual intercourse and stealing a motor vehicle.

In a hearing before the Supreme Court of Criminal Appeal on Friday, Webb's barrister Gregory Scragg moved to appeal a decision by the District Court in July which dismissed an attempt by Webb to permanently stay all the charges.

The court heard that the DNA evidence found in the car park was semen that the woman spat out during the assault and was a match of 1 in 8 billion.

The opportunity the defence would have to challenge the weight of this evidence, Mr Scragg said, would be through cross-examining the alleged victim.

Without that, a jury would be unfairly prejudiced against his client and a conviction would be "inevitable", he said.

The court also heard that due to the delay in the charges other evidence had been destroyed and the original statement made by the alleged victim had been lost.

"Most of the crime scene exhibits have been lost - fingerprints from the car, the bloodstain on a beer bottle," Mr Scragg said.

"We are deprived of any basis upon which we say we can test the crown case."

All that remained was a video statement the woman made for police in January 2011, just months before she died.

Mr Scragg said the statement should not admitted into evidence as it could not be challenged.

But Crown Prosecutor Sally Dowling said the woman - a Holocaust survivor who came to Australia during her 20s - had been the victim of a "calculated attack" and that it was in the public interest for a person charged with a serious offence to stand trial.

Justices Robert Macfarlan, Peter Johnson and Robert Beech-Jones dismissed Webb's appeal, and allowed the crown's appeal to admit the deceased woman's video statement into evidence.

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