A man accused of raping an elderly Holocaust survivor 20 years ago will face trial, despite the death of the alleged victim last year and claims that this means a fair trial is impossible.
Robert Paul Webb has been charged with two counts of aggravated sexual intercourse and aggravated assault on the woman, then 71, in an underground Sydney car park in November 1991.
But Mr Webb, 18 at the time, was not charged over the crimes until last year when police discovered DNA in the form of a semen stain on the car park floor where the alleged rape occurred.
Police said this DNA had a one in 8 billion match with the accused.
The woman, who cannot be named but is understood to have survived a concentration camp during World War II, described the attack to police in a recorded video interview last year.
However she died soon after, before police could bring the matter to the District Court for trial.
In the NSW Court of Criminal Appeal today, Mr Webb's lawyer, Greg Scragg, said that this meant his client had suffered "unfair prejudice" because the complainant could not be cross-examined about the attack.
He said it was possible the DNA matched another person and the only way to explore that was by putting the woman in the witness box and asking her to describe her attacker.
Issues of intoxication and consent also needed to be put to her.
He sought and was denied a permanent stay of the matter earlier this year, and appealed to the Court of Criminal Appeal.
"It's our submission that it would be quite extraordinary to allow this trial to proceed on the basis of nothing more than a collection of hearsay representations," he said.
"Most of the crime scene exhibits have been lost - fingerprints from the car, the blood stain on a beer bottle.
"There would be a shadow hanging over any conviction that might result because of the unfair and unacceptable prejudice hanging over my client."
But this afternoon, the three-judge panel rejected Mr Webb's appeal, meaning that the matter can now proceed to trial.
During the hearing Crown prosecutor, Sally Dowling said that the great strength of the prosecution case was the DNA evidence.
"There would be nothing in any cross-examination of the complainant that could rebut that evidence," she said.
Ms Dowling also said that, under the law, a permanent stay could only be granted in exceptional circumstances.
"There is a strong public interest in a person facing serious criminal charges being brought to trial," she said.
She also said that the alleged victim was only one of a number of witnesses involved in the trial.
As well as dismissing Mr Webb's appeal in relation to a permanent stay of proceedings, the three-judge panel also overturned an earlier decision in the District Court that prevented a large portion of the alleged victim's video interview with police from being used at the trial.