A v State of Tasmania

[2010] TASCCA 17

[2010] TASCCA 17

COURT:                SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                 A v State of Tasmania [2010] TASCCA 17

PARTIES:  A, B
  v
  STATE OF TASMANIA

FILE NO/S:  835/2009
DELIVERED ON:  28 October 2010
DELIVERED AT:  Hobart
HEARING DATE:  14 October 2010
JUDGMENT OF:  Evans, Tennent and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Particular grounds of appeal – Fresh evidence – Availability at trial, materiality and cogency – Miscarriage of justice.

R v Abou-Chabake [2004] NSWCCA 356, followed.
Aust Dig Criminal Law [3497-3506]

REPRESENTATION:

Counsel:
             Appellant:  S Cairns
             Respondent:  D G Coates SC
Solicitors:
             Appellant:  In person
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2010] TASCCA 17
Number of paragraphs:  23

Serial No 17/2010

File No 835/2009

B A v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL
  EVANS J

TENNENT J
WOOD J
28 OCTOBER 2010

Order of the Court

Appeal dismissed.

Serial No 17/2010
File No 835/2009

B A v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
28 October 2010

1. The appellant appeals against his conviction on counts of indecent assault, aggravated sexual assault and rape, all of which convictions arise from one episode on a night in early 2005. 

1. The foundation for the amended grounds of appeal advanced by the appellant is evidence that was not adduced in the course of his trial.  He seeks to now put this evidence before the Court and argue that as it was not before the jury the verdict is unsafe and unsatisfactory and there has been a miscarriage of justice. 

1. The provision that governs the receipt of further evidence by this Court is the Code, s409(1), which relevantly provides that the Court may receive evidence if "it thinks it necessary or expedient in the interests of justice".  The quoted words are contained in similar provisions in other Australian jurisdictions, one of which is the Criminal Appeal Act 1912 (NSW), s12(1)(c). In R v Abou-Chabake (2004) 149 A Crim R 417, the Court of Criminal Appeal (NSW) dealt with the principles that govern its receipt of further evidence. The principles are equally applicable in this jurisdiction. In that case Kirby J, agreed with by Mason P and Levine J said the following, at par[63]:

"The authorities in respect of fresh evidence have recently been collected and analysed by Giles JA in R v Bikic [2002] NSWCCA 227, and Heydon JA in R v M [2002] NSWCCA 66 at [61]-[64]; see also R v Sleiman [2003] NSWCCA 231 at [101]-[105]. The test was stated by Barwick CJ in Ratten v The Queen (1974) 131 CLR 510 at 518-520 (McTiernan, Stephen and Jacob JJ agreeing). It was reaffirmed in Lawless v The Queen (1979) 142 CLR 659 at 674-675 by Mason J (Barwick CJ and Aiken J agreeing). The principles may be summarised as follows:

·First, a distinction is made between 'new evidence' and 'fresh evidence'. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence.

·Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (at 512) per Barwick CJ).

·Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259 at 301, 43 A Crim R 182 at 210 per Toohey and Gaudron JJ).

·Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought.

·Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (at 518-519) per Barwick CJ; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398-399, 20 A Crim R 244 at 248-249).

·Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively:

·     Is the evidence fresh?

·     If it is, is it 'credible' or at least capable of belief (Gallagher v The Queen (at 395; 246) per Gibbs CJ), or 'plausible' (Mickelberg v The Queen (1989) 167 CLR 259 at 301, 43 A Crim R 182 at 210 per Toohey and Gaudron JJ)?

·     If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (at 410; 257) per Brennan J) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (at 402; 251) per Mason and Deane JJ)? See Mickelberg v The Queen (at 301-302; 210-211) per Toohey and Gaudron JJ.

·     Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s 474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (at 517))."

1. Before turning to the further evidence upon which the appellant seeks to rely, I will outline the cases presented by the parties to the jury, and refer to some aspects of the evidence put before the jury.

1. The crimes were alleged to have been committed in the appellant's bedroom in his home in a country town near Launceston in the course of one episode on a night during the school holidays between 1 January 2005 and 28 February 2005.  (Although no evidence of the school resumption date was put before the jury, it was 17 February 2005 and it is to be expected that at least some of the jurors would have been aware of this.)  The appellant was 34 at the time in question and the alleged victim of his crimes, the complainant, was 14.  For a period prior to the night in question, the complainant and the appellant's daughter ("K"), who was then 9, had been residing in the home of the appellant's sister ("P") in a Launceston suburb, together with P's partner and her two sons.  The appellant's daughter resided with P from about 2003 to 2007, and the complainant resided with her for a period of about two years and eight months which concluded in December 2007.  The appellant was in a relationship with Y.  They did not live together and maintained separate residences.  When interviewed by police in mid-2008, the appellant said he was just about to marry Y. 

1. The prosecution's case was that at the request of the appellant, the complainant agreed to stay at his home on the night in question in order to baby-sit the appellant's daughter, because he needed to go to work early the next morning.  Again at the request of the appellant, the complainant slept in the appellant's bed, he having told her that he would sleep on the couch.  After the complainant had gone to bed the appellant entered the bedroom, imposed himself on her, grabbed her breast, inserted a finger into her vagina and raped her.  The appellant denied these allegations and said that the complainant had never stayed at his home overnight.  Of significance to the prosecution's case was evidence that before the complainant went to bed on the night in question, she placed her earrings on a bedside table and that in her haste when departing she left them.  The following day they were found on the floor beside the appellant's bed by his partner, Y.  She asked the appellant who the earrings belonged to and he said he did not know, but they might belong to his daughter.  Later that day the appellant spoke to his sister, P, and said words to the effect that the complainant had got him into trouble as she had left her earrings in his room and his partner had found them, but he had told her they belonged to his daughter.  Y kept the earrings.  She produced them to police in mid-2008 when the complainant's allegations against the appellant were being investigated.  When assessing the significance of this evidence, it should be kept in mind that it was common ground that the complainant had attended the appellant's home on other occasions.  The appellant's sister cleaned his home on a regular basis and on occasions the complainant accompanied her when she did so.

1. The complainant gave evidence that prior to the night in question the appellant had, on occasions, shown a sexual interest in her by touching her inappropriately.  Her evidence about this was supported by the appellant's sister, as well as MS and his son LS.  MS and LS shared an interest in motorbike riding with the appellant.  LS gave evidence of seeing the appellant inappropriately touch the complainant, and hearing him make inappropriate sexual comments about her.  LS also gave evidence of an occasion when he, the complainant and MS were motorbike riding, together with the appellant, at East Sandy Cape near Bridport.  At about this time LS and the complainant had been "seeing each other a bit".  LS said that when he and the appellant were going for a ride at East Sandy Cape the appellant said to him, referable to the complainant, something along the lines of, "I want to have her before you", or, "I'll have her before you".

1. The complainant did not complain to anyone about what she said the appellant had done to her until March 2008 when she told the appellant's sister.  This conversation occurred some months after the complainant had ceased to reside at the appellant's sister's residence when she was visiting there.  The appellant's sister said that on the day of the complaint she had driven to Deloraine to speak to the appellant's daughter about an allegation made by the appellant that P's son, D, had interfered with K.  The complainant was at P's residence when she returned from Deloraine and P had told the complainant of the appellant's allegations.  This was the first time that the complainant had heard of the allegations.  Not very long after being told about the allegations, the complainant told P about her complaint against the appellant.

1. When interviewed by police on 12 May 2008, the appellant denied the complainant's allegations and said that she had never stayed at his home overnight.  It was put to him that on the day after the night the complainant had stayed at his home, he had said to his sister, P, that the complainant was in trouble because she had left her earrings on his bedside table, his partner, Y, had found them, and he had told her that the earrings belonged to his daughter.  He said that as far as he knew this had not occurred, and that as far as he knew his partner had never found any earrings at his home.  In substance, he said that he had only met the complainant a couple of times, and had probably seen her half a dozen times when collecting his daughter from his sister's home.  He said he did not like the complainant, did not go near her because of her attitude, and that she was "just one of those people you do not like".  He said that in about January/February 2008, he had made allegations about his sister's son interfering with his daughter, and that since then there had been a falling out between himself and his sister; and that she had influenced the complainant to fabricate the allegations made against him.  At a different point in the interview he said that his sister was also behind false claims being made against him by her son and another person for underpaying them, and that those claims were going to court.  He denied having inappropriately touched the complainant and denied saying sexually explicit things about her.  Assertions as to him having done so made by his sister, MS and his son LS, were put to him.  He denied the assertions and said that MS would do anything to get him in trouble because they no longer got on.  He said he had obtained a restraining order against MS.  At different points he said that the falling out was over their failure to pay for something he had sold to LS, as well as stolen property he had purchased from MS.  He agreed that he had gone motorbike riding with MS and LS on a beach near Bridport, but could not remember the complainant being there.

1. In the light of what the appellant said in his police interview it is not surprising that the focus of the defence case was discrediting the complainant, the appellant's sister, MS and LS, and raising the possibility that their evidence was concocted.  At the outset of the trial, before any evidence had been given, the appellant's counsel, Mr Brett, told the jury that the defence case was a total denial that the episode had taken place, and a denial that the complainant had ever stayed at the appellant's home overnight.  Mr Brett put to the jury that the allegations made against the appellant had been fabricated by the complainant, the appellant's sister, MS and LS.  The impetus for the fabrication was said to be the fact that the appellant had made allegations that his daughter had been interfered with by his sister's son.  Counsel pointed out that the first time the complainant told anyone about what she said the appellant had done to her was on the night that the appellant's sister told the complainant of the appellant's allegations against her son.  In essence, as explained to the jury, the appellant's case was that the disclosure of his allegations against his sister's son had prompted the complainant, at the behest of the appellant's sister, to make an untrue complaint about the appellant, and that the evidence of MS and LS was false and they were motivated by bad feelings between MS and the appellant.  When MS and LS gave evidence, they acknowledged that there had been a falling out between the appellant and MS.

1. The further evidence upon which the appellant seeks to rely for the purposes of this appeal is evidence from his daughter, K, his partner, Y, and Mr Andrew Hunn.  The evidence from K is that she did not remember the complainant baby-sitting her at the appellant's home, and did not remember the complainant ever staying overnight at that house.  This evidence was contained in a statement made by K to police on 14 May 2008 when she would have been 12 years of age.  The statement related to events that occurred when she was 9 years of age.  A copy of her statement was contained in the Crown papers that were provided to the appellant.  Both the prosecutor on the appellant's trial, Ms Rheinberger, and his trial counsel, Mr Brett, have sworn affidavits in which they address matters raised by the appellant for the purposes of this appeal.  Ms Rheinberger says that prior to trial she decided that it would not be in the interests of justice to call K as a witness, and she so advised Mr Brett.  He says that shortly before or during the trial, he spoke to K about her evidence and was satisfied that nothing in it would assist the appellant.

1. The evidence from Mr Andrew Hunn upon which the appellant seeks to rely is that on 31 December 2004, he performed a right L4/5 discectomy on the appellant, which is invasive surgery that required the exposure of the spinal nerve root.  In Mr Hunn's opinion, immediately following that procedure, normally, and in most cases, it is most unlikely that a patient would engage in consensual sexual relations for three to four weeks.  In Mr Hunn's opinion, under normal circumstances, it is highly unlikely that a patient in the convalescent stage following surgery, which the appellant was in between 1 January 2005 and 1 February 2005, would be capable of conducting himself in the manner described in the complainant's evidence.  The affidavit detailing Mr Hunn's evidence includes advice that the appellant was reviewed on 1 February 2005, when he reported no ongoing discomfort and was noted to have a well healed wound.  Prior to the trial, Mr Brett was provided with a note from Mr Hunn to the effect that the appellant underwent a right L4/5 discectomy on 31 December 2004.  Mr Brett says in his affidavit that he spoke to Mr Hunn and was provided with information along the lines set out above.  He says that his view was that this evidence would not avail the appellant as it did not preclude his capacity to perform the relevant acts, and did not relate to the whole of the period during which the alleged crimes were committed (it did not cover the 17 days in February before school resumed).

1. The further evidence from the appellant's partner, Y, upon which the appellant seeks to rely is evidence that following the appellant's back operation he stayed at her home and in her care for about six to eight weeks.  In the affidavit she swore for the purposes of this appeal, she says that during this time the appellant had difficulty moving about and would require her assistance.  She says he did not work during this time, but spent the time recovering from his operation.  She says he spent each night of this time at her home and in her care.  Mr Brett spoke to Y about her evidence prior to the trial and he says in his affidavit that his assessment of her evidence was that she was not able to say with certainty that the appellant was at her home every night during the relevant school holiday period.  Y was called as a witness by the prosecution on the trial of the appellant in order to give the evidence referred to in relation to her finding earrings in the appellant's bedroom.  Whilst she was cross-examined by Mr Brett, he did not take the opportunity of asking her about the extent to which the appellant had stayed at her home following his back operation, or about the appellant's incapacity during this period. 

1. Relating the above to the principles summarised in Abou-Chabake, whilst great latitude must be extended to an appellant when determining what evidence, by reasonable diligence, could have been available at his trial, it is beyond question that the evidence referred to was available.  Mr Cairns, counsel for the appellant on this appeal, does not submit otherwise.  Accordingly, it is "new evidence" not "fresh evidence".  It is not suggested on behalf of the appellant that this new evidence is of such cogency that the guilty verdicts should be quashed and the appellant discharged.  What is sought is a new trial.  Consistent with the sixth principle enunciated in Abou-Chabake, such an order would only be made where the evidence was fresh, which this evidence is not.  Moreover, even if it was fresh evidence, in the context of the evidence given on the trial, the proffered further evidence is unlikely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused, and it does not raise a significant possibility that the jury, acting reasonably, would have acquitted the appellant. 

1. The further evidence is said to raise doubts about whether:

·     the complainant ever stayed overnight at the appellant's residence; and

·     the appellant had the physical capacity to do that which he is alleged to have done.

1. The complainant's evidence that she stayed overnight at the appellant's residence was confirmed by the appellant's sister.  They both linked the period when the stay occurred to the school holidays following the appellant's back operation.  Moreover, the fact that the complainant had left her earrings in the appellant's bedroom that night was supported by the appellant's sister's evidence that on the following day the appellant had complained that the complainant's earrings had been found in his room by his partner, which had got him into trouble with her, but he had told her the earrings belonged to his daughter.  The appellant's partner gave evidence that confirmed the gist of P's evidence about this.  The appellant denied any knowledge of the discovery of the earrings in his police interview.  When he gave evidence on his trial, he recalled that the earrings had been found by his partner and recalled her asking him about them. 

1. In the face of this evidence about the earrings it is unlikely that K's evidence that she did not remember the complainant baby-sitting her at her father's home, or staying overnight at that home, would have had any influence on the jury.  Much the same can be said of the evidence the appellant's partner, Y, says in her affidavit that she could have given.  Her statement that for six to eight weeks the appellant stayed at her home and in her care, had difficulty moving about, required her assistance and spent each night at her home, is inconsistent with Mr Hunn's evidence that when the appellant was reviewed on 1 February 2005, he reported no ongoing discomfort and was noted to have a well healed wound.  Moreover, Y's evidence on the trial was to the effect that in January 2005 she visited the appellant at his home, found the earrings in his bedroom and spoke to him about them.  That she was visiting the appellant at his residence at that time is inconsistent with her evidence that during this period he was staying at her home and having difficulty moving about without her assistance.  In these circumstances, it is unlikely that her evidence would have caused the jury to have entertained any doubt about the evidence of the complainant and P that the complainant had stayed overnight at the appellant's home.

1. Mr Cairns says that of the further evidence upon which the appellant relies, Mr Hunn's evidence is certainly the most important.  In my view, Mr Hunn's evidence is of limited assistance to the appellant as its focus is on the period between 1 January 2005 and 1 February 2005, whilst the period in question concludes on 17 February 2005.  The prospects of raising a doubt about guilt on the basis of the appellant's physical incapacity were also diminished by the fact that he did not mention it in the course of his police interview, although he referred to his back having been injured.  In response to a general question about his use of drugs and medication, he said that he had taken medication when his back was hurt.  The effect of Mr Hunn's evidence is to shorten the length of the period during which the appellant was likely to have the physical capacity to do that which it is alleged he did.  However, Mr Hunn's evidence that when the appellant was reviewed on 1 February 2005, he had a well healed wound and reported no ongoing discomfort, tends to establish that the appellant had the necessary physical capacity during the first 17 days of February 2005.  Mr Hunn's evidence is unlikely to have caused the jury any doubt about the appellant's physical capacity during this period.

1. I turn to the Court's ultimate concern which is whether there has been a miscarriage of justice, regardless of whether the proffered further evidence is new or fresh.  The assessment of this must be made in the context of the adversarial nature of a criminal trial.  The uncontested evidence of Mr Brett is that in the course of conducting the appellant's trial he made a decision not to call or adduce evidence to the effect of that which is now relied on by the appellant, from the appellant's daughter, his partner and Mr Hunn.  He says that he discussed his views about this with the appellant on more than one occasion.  Clearly, a tactical decision was made by Mr Brett as to the evidence that should or should not be adduced or called, and the issues that should or should not be pursued, and this included not pursuing the issues raised by the evidence referred to.  Accepting that it is not the role of this Court to investigate decisions of counsel in any detail, TKWJ v R (2002) 212 CLR 124 at [16], it is nonetheless patent that Mr Brett acted responsibly and for good reason, Ristevski (1989) 39 A Crim R 11 at 14. For example, balanced against the limited benefit that might have been derived from calling Mr Hunn as a witness, was the loss of the right of last address. Experience shows that the right of last address is highly valued by counsel. There is nothing unfair in holding the appellant to Mr Brett's decisions about the conduct of the trial, and there is no miscarriage of justice. This would be so even if, with the benefit of hindsight, it might be thought that a different decision may have worked better.

1. I mention one further matter.  The appellant's amended grounds of appeal include an assertion that Mr Brett's failure to call Mr Hunn as a witness, and his failure to adduce the evidence referred to from the appellant's partner, was contrary to the appellant's instructions.  That assertion was denied by Mr Brett and his denial has not been challenged.  The assertion was not pursued on the appeal.  In any event, the general rule is that a counsel's failure to obey an instruction is not a ground for setting aside a conviction, R v Birks (1990) 19 NSWLR 677 at 683 and 685.

1. I would dismiss the appeal.

   File No 835/2009

B A v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

TENNENT J

28 October 2010

1. I have had the opportunity of reading the draft reasons of Evans J in this matter. I agree with those reasons and would also dismiss the appeal.

   File No 835/2009

B A v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J

28 October 2010

1. I agree with the reasons of Evans J and would also dismiss the appeal.