A man found guilty of raping a teenage girl in Echuca has lost his bid to have his conviction overturned, with Court of Appeal judges rubbishing his theory that police planted evidence.
Barry Perryman was sentenced last August to nine years' imprisonment with a non-parole period of six years and nine months after a jury found him guilty of raping a 15-year-old girl.
He plied the girl with alcohol before raping her. When the girl told him to stop and tried to get attention, he put his hand over her mouth and told her, "Be quiet because I don't want to go to jail".
But in his interview with police and during his trial, Perryman denied the rape, saying he had not been to the scene of the crime with the victim and had not been out with her the night the rape occurred.
He appealed the conviction on the grounds that a substantial miscarriage of justice occurred because new and/or fresh evidence was discovered; his legal advisors were incompetent in their conduct of the case; and decisions made by the judge during trial.
Perryman's counsel submitted that new evidence in the form of Facebook messages and affidavits showed the police conspired with the victim to plant false DNA evidence at the scene of the rape, or there was reasonable possibility they had done.
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DNA on a McDonald's cup and straw found at the crime scene was linked to Perryman and the victim.
The Facebook messages and affidavits, the court was told, showed the victim made previous false sexual assault complaints and was in close contact with Perryman days before the rape.
But Justices Terence Forrest, Karin Emerton and Mark Weinberg said the conspiracy theory was "utterly devoid of any merit".
"For the theory to work, the 15-year-old complainant must have retained the McDonald's rubbish after it was purchased... for some inexplicable future purpose," they said in judgment.
"She must further have suspected that the cup, lid and straw would have had the applicant's DNA on them.
"She must then have decided to use this discarded rubbish as putative support for her false account of rape, by arranging to have it found, at the scene, some five days or so after the alleged incident.
"Having done this, she supplied the material to police, who planted it at strategic locations near the [scene of the crime]."
They described this as a "wildly Machiavellian thesis".
A particular Facebook message did not demonstrate the victim had made a false allegation of sexual assault, they said, only that she had made an allegation of sexual misconduct.
The affidavits, too, did not establish the victim had made false allegations, and there was no basis for them to be admitted into a rape trial.
The Court of Appeal judges found the Facebook messages and affidavits failed to establish Perryman's innocence or reasonable doubt of his guilt.
In regards to his legal counsel, Perryman argued that they were incompetent in failing to produce the Facebook messages and affidavits for trial.
But because the judges found that material did not cast doubt on the verdict, this ground for appeal also failed.
Perryman also appealed on the basis that the trial judge allowed the prosecution to reopen its case to recall the victim and her parents, to examine them on particular points raised in Perryman's evidence to the court.
But the Justices Forrest, Emerton and Weinberg found the trial judge's decision was sound, as the prosecution could not have anticipated the issues Perryman raised in his evidence, which centred around visits to McDonald's with the victim.
They noted the issues were also not flagged by the defence in their response.
Leave to appeal the conviction was refused.
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