The Launceston man who violently raped a 76-year-old woman in her bed during a home invasion has argued a tendency to sexually assault sleeping woman should not have been used as evidence in his trial.
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Christo Brown appeared before the Hobart Court of Criminal Appeal on Thursday to argue against his conviction and his eight-year sentence with a non-parole period of four years.
He was found by a jury last year to have sexually assaulted the woman while she slept at her Launceston home in July 2015 and raped her once she awoke.
The trial heard evidence that Brown has sexually assaulted a woman in her bed at a Queensland backpacker hostel while she slept one year after that crime.
His lawyer Alan Hensley told the full bench the two matters were different.
He said in Queensland, Brown touched the woman in the groin area as she slept, but desisted when she awoke and told him to stop.
Mr Hensley said the perpetrator in the Launceston incidence escalated from indecent assault to rape when the victim awoke.
Director of Public Prosecutions Daryl Coates disagreed.
“This is not general at all,” he said. “This offence in this manner is a relatively rare one and gives added weight to the similarities.”
Mr Coates said tendency evidence needed to be taken alongside other facts, which included the false alibi he gave to police in an interview and that he told his mother he was going to school the day after the assault but instead fled to Melbourne.
Mr Hensley said Brown had said he already had plans to travel to Melbourne.
Mr Coates said that Brown’s DNA ended up on the victim’s nightie through secondary transfer, as suggested by Mr Hensley, was unlikely at best.
He said the jury in the original trial was directed by the judge on how to consider tendency evidence – how it could be used and not used and how it could be unfairly prejudicial.
The court has reserved its decision.