Aitchison v Director of Public Prosecutions (ACT)
[2021] ACTCA 21
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Aitchison v Director of Public Prosecutions (ACT) |
Citation: | [2021] ACTCA 21 |
Hearing Date: | 2 June 2021 |
DecisionDate: | 27 August 2021 |
Before: | Mossop J |
Decision: | The application for an extension of time within which to appeal out of time from the conviction recorded on 27 April 2018 and the sentence imposed on 13 August 2018 is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Application for leave to appeal out of time – appeal against conviction and sentence – sexual intercourse with a young person – act of indecency with a young person – appeal commenced then discontinued – lengthy period of delay – inadequate explanation for delay – whether counsel at trial was incompetent – poor prospects of appeal – application dismissed |
Legislation Cited: | Court Procedure Rules 2006 (ACT), rr 5471, 5510 Supreme Court Act 1933 (ACT), ss 37J(1)(b), 37O(2)(a)(i) |
Cases Cited: | Alkhair v The Queen [2016] NSWCCA 4; 255 A Crim R 419 Bridges v The Queen (1998) 20 WAR 59 Vojneski v The Queen [2015] ACTCA 44; 262 A Crim R 370 |
Parties: | John Aitchison ( Applicant) ACT Director of Public Prosecutions ( Respondent) |
Representation: | Counsel K Clowry ( Applicant) K McCann ( Respondent) |
| Solicitors Cruz Clowry Law Group (Applicant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 14 of 2021 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 13 August 2018 Case Title: R v Aitchison (No 3) Citation: [2018] ACTSC 214 |
MOSSOP J:
Introduction
The applicant was convicted of 12 offences after a trial before a judge and jury which occurred between 18 April 2018 and 27 April 2018. The charges on which he was convicted were seven counts of an act of indecency with a young person and five counts of sexual intercourse with a young person. The complainant was the same in relation to each offence. The counts related to offending between 27 July 1987 and 6 October 1989.
On 18 May 2018 the applicant appealed from the jury’s decision to the Court of Appeal.
On 13 August 2018 he was sentenced to a total sentence of imprisonment of nine years with a non-parole period of five years.
A Notice of Discontinuance of his appeal to the Court of Appeal was filed on 14 September 2018.
By application dated 2 March 2021, the applicant applied to the Registrar for leave to appeal out of time against his conviction of 27 April 2018 and the sentence imposed by Elkaim J on 13 August 2018. The application made to the Registrar for leave to appeal out of time was supported by the affidavit of Kelvin John Clowry affirmed on 2 March 2021 and a draft Notice of Appeal. The application was opposed by the Director of Public Prosecutions, who filed an affidavit of Nathan Douglas Deakes affirmed 24 March 2021.
The applicant relied upon written submissions dated 2 March 2021. The respondent relied upon written submissions dated 29 March 2021.
On 15 April 2021 the Registrar refused to give leave to appeal out of time. Pursuant to rule 5510 of the Court Procedures Rules 2006 (ACT), the Registrar communicated her decision that she refused to give leave to appeal out of time, saying: “I am not persuaded to exercise the Court’s discretion to grant leave in this case, in the absence of any acceptable reason as to why the time within which the appeal may be brought should be extended.”
On 29 April 2021, pursuant to rule 5510(3)(b) the applicant then applied to have his application determined by the Court of Appeal. He filed a further affidavit of Mr Clowry dated 29 April 2021 and an affidavit of the applicant dated 30 April 2021. He also filed a further draft Notice of Appeal dated 29 April 2021 which expanded the proposed grounds of appeal and provided submissions in reply dated 2 June 2021.
The application was heard on 2 June 2021. The Court of Appeal was constituted by a single judge pursuant to s 37J(1)(b) of the Supreme Court Act 1933 (ACT).
Following the hearing, the applicant was permitted to tender transcripts of days one to six of the trial. The transcript of day seven which involved the delivery of the jury verdicts was already in evidence, being an exhibit to Mr Deakes’ affidavit. Also admitted into evidence was the transcript of the recorded interview between the applicant and police on 20 October 2015 and three letters of Maxine Blackburn, psychologist, dated 7 March, 4 and 16 April 2018.
The case at trial
The Crown case was that the applicant had come into contact with the victim of the offending when she was about 13 or 14 years old. During that time he was ordained as a deacon and worked at the All Saints’ Anglican Church in Ainslie from about February 1988 until he was transferred to be parish priest of Bombala in November 1989. The victim was a very talented violinist whose musical interests brought her to the attention of the applicant, who himself was a musician. The counts upon which the applicant was found guilty were summarised by Elkaim J in his sentencing decision, R v Aitchison (No 3) [2018] ACTSC 214 at [7], as follows:
(a)Count 1: The complainant was rehearsing a violin piece at All Saints’ Anglican Church. The offender sat next to her on a pew and suggested that if she prayed she might be reunited with her deceased dog. The offender placed the complainant on his lap and had penile-anal sexual intercourse with her.
(b)Count 2: This offence occurred in the hall at the same church. The offender put his hand up the complainant’s blouse, on the outside of her crop top, and touched her breast.
(c)Count 5: This offence also occurred in the hall. The offender held the complainant’s hands above her head and had penile-vaginal sexual intercourse with her.
(d)Count 7: This offence, and the remainder of the offences, occurred at the complainant’s residence at Red Hill. The offender was in the swimming pool with the complainant. He put his hand inside her swimming costume and touched her groin area. He also squeezed her breasts.
(e)Count 9: While in the swimming pool, the offender put his finger in the complainant’s vagina.
(f)Count 10: Again in the swimming pool, the offender placed the complainant’s hand on his penis.
(g)Count 11: This offence occurred in the complainant’s residence on a three-seat sofa. The offender had penile-vaginal sexual intercourse with the complainant.
(h)Count 12: This offence also occurred on the sofa. The offender kissed the complainant and removed her shorts and underwear.
(i)Count 13: Again on the sofa, the offender took the complainant’s hand and put it on his penis.
(j)Count 14: While on the sofa, the offender pried open the complainant’s legs, inserted his penis into her vagina and had penile-vaginal sexual intercourse with her.
(k)Count 15: This offence took place in the complainant’s bedroom. The offender put his hands on various parts of the complainant’s body and kissed her.
(l)Count 18: The offender had penile-vaginal intercourse with the complainant in her bed.
Given the age of the allegations, the Crown case was very much dependent upon the acceptance of the evidence of the complainant. There was some complaint evidence from the complainant’s husband, although it was only in 2015 when she spoke to police that she described the details of her complaints. There was expert evidence of Dr Catherine Sansum in relation to delayed complaints by children. The Crown also led tendency evidence from two men who had been sexually abused after the accused came into contact with them through musical activities. The applicant did not challenge their evidence. That was because he had previously pleaded guilty to charges relating to those incidents.
As part of the Crown case, a recorded interview between police and the applicant was played to the jury. In that interview, the applicant denied almost any knowledge of or contact with the complainant, although he did describe dealing with her mother. In that interview he made clear his homosexuality and denied any sexual interest that would be consistent with the allegations. He said, “we never practised with the violin”. In relation to the allegations involving the pool, he denied he was ever in the pool and said he was “not a swimmer”.
At trial there was naturally a challenge to the reliability of the evidence given by the complainant. Particular reliance was placed upon the difference in the evidence between that given by the complainant and a Catholic bishop, Patrick Power, to whom the complainant said she had made a complaint. Reliance was also placed upon the asserted unlikelihood of incidents occurring in places that were not private. So far as the two tendency witnesses were concerned this was squarely addressed by the submission made by counsel for the applicant to the jury that the applicant had a sexual interest in young boys but not in early teenage girls. Further, in contrast with the non-private places in which it was alleged the incidents with the complainant had occurred, the matters involving young boys occurred at night in the bedrooms of the young boys or at the house of the applicant.
Counsel for the applicant also emphasised the failure of the complainant to make any complaint at the time and the delay before making a complaint to her husband in the same year in which she became aware of other allegations against the applicant. It was suggested that the complaint against the applicant was an outlet because she had not made a complaint against her father, in relation to whom there was evidence of sexual misconduct.
Draft Notice of Appeal
The second version of the draft Notice of Appeal identified three grounds of appeal. They were as follows:
Ground One
The accused was incompetently represented:
a.Counsel at trail [sic] failed to introduce evidence available inconsistent with the guilt of the appellant:
i.Psychologists [sic] evidence of the appellant’s sexual orientation –Maxine Blackburn or to cross-examine the witness Clingan as to her knowledge of this matter.
ii.Psychological reports prepared or to call psychological or medical evidence of the sexual dysfunctionality of the appellant.
iii.Medical evidence of the inability of the appellant to obtain or maintain an erection was not led or obtained.
iv.Evidence that the appellant’s tenure at All Saints was not during the period of the alleged offences in breach of his instructions.
v.Evidence of the appellant’s fear of water and inability to swim.
vi.Evidence of his inability to play or teach violin.
b. Counsel at trial failed to cross-examine the complainant effectively, or in accordance with his instructions.
c. Counsel at trial failed to cross-examine the tendency witnesses as instructed:
i.No cross-examination at all of the witness [name of first tendency witness redacted] (T70);
ii.The witness [name of second tendency witness redacted] (T155) was not cross-examined as to difference with the evidence given in the 1996 trials
iii.In accordance with instructions.
Ground Two
The trial miscarried in that evidence available inconsistent with the guilt of the appellant was not tendered on his behalf (see above).
Ground Three
The verdict of the jury was unreasonable, or cannot be supported, given the evidence and the whole of the available material in the trial. This is the argument that the assertions were unbelievable and that they were utterly without corroboration. It is the Pell argument, and depends on the structure of the prosecution case, which was entirely dependent on the credit and consistency of the complainant’s evidence. The case proceeded as a “Word on word” trial where there was late complaint and a delay of 25 years in advancing the matter. It is to be observed that this also forms part of the basis for the application for leave to appeal out of time.
The draft Notice of Appeal seeks that the conviction and sentence orders be “quashed”.
Approach to application
Time limits for appeals fixed by the rules are not to be ignored. The longer the time that has passed without an appeal being filed, the greater the expectation of the community, witnesses, victims and families of victims that the criminal process has concluded. Notwithstanding the significance of time limits, it is not uncommon for the court to exercise a significant degree of latitude where the circumstances merit it. Regard must be had to the length of the delay, the reasons or explanation for the delay, the interests of the community and the victim and whether, if an extension of time were refused, substantial injustice would result. That last factor requires some assessment of the strength of the proposed appeal, although the assessment of the merits may be less detailed than where an application for leave to appeal is required but is brought within the time permitted under the rules. Having said that, because of the legal system’s emphasis upon fair procedure and correct outcomes, the court will always be alive to the possibility of a miscarriage of justice and will readily intervene when it is detected.
This summary is drawn from the authorities referred to in Outram v R [2013] NSWCCA 329 at [19]-[23]. It is consistent with the summary of the approach to such applications in Vojneski v The Queen [2015] ACTCA 44; 262 A Crim R 370 at [20].
Submissions
In summary, the matters put forward in support of the application were:
(a)An explanation of the delay in bringing the appeal on the ground that the appellant suffered “ill mental health” before and after the trial.
(b)Submissions directed to the merits of the appeal relating to incompetence of counsel, pointing to the evidence which the applicant contends should have been presented to the jury and making the submission that the failure to do so resulted in an unfair trial.
(c)Submissions pointing to the similarity between the circumstances of the case and the circumstances in Pell v The Queen [2020] HCA 12; 268 CLR 123 (Pell) and what was said to be a change in the common law since the trial made by that decision.
The submissions of the respondent raised an issue as to whether, in circumstances where a Notice of Discontinuance had been filed in a criminal appeal, there was jurisdiction or power to grant an extension of time for a further appeal. The respondent submitted that in any event, assuming that there was such a power, leave should be refused because there was no explanation of the circumstances in which the discontinuance was filed, no adequate explanation for the delay and the proposed appeal lacked merit.
Power to grant leave after discontinuance
The submissions of the respondent gave careful consideration to the power to grant an extension of time in which to appeal in circumstances where an earlier filed appeal had been discontinued. The submissions were developed by reference to the terms of rule 5471 of the Court Procedure Rules, Burnett v FitzGerald and Browne [2015] TASSC 51; 25 Tas R 42, Grierson v The King (1938) 60 CLR 431 (Grierson), Bridges v The Queen (1998) 20 WAR 59, R v McNamara (No 2) [1997] 1 VR 257, R v Marriner [2006] QCA 32; 1 Qd R 179, Tognolini v The Queen (No 2) [2012] VSCA 311, R v Clark [2003] NSWCCA 308 and Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2017] ACTCA 24.
There were only limited submissions in response from the applicant. Reliance was placed on the decision in Grierson. Having regard to my conclusions on the merits, it is not essential in order to determine this application to resolve the question of power and, having regard to the limited argument presented by the applicant on this issue, it is not appropriate to do so.
Explanation for the delay
The evidence providing an explanation for the delay did not provide strong grounds for the granting of the substantial extension of time necessary in order to permit an appeal to proceed.
The applicant was represented during the trial by an experienced solicitor practising in criminal law and by an experienced barrister practising in criminal law.
As pointed out above, after the verdict of the jury, an appeal was filed on 18 May 2018. That was then discontinued on 14 September 2018. The applicant’s decision to discontinue the appeal followed the advice of his solicitor, given shortly after the sentencing hearing, that “an appeal would have almost zero chance of success”. Mr Clowry’s affidavit of 2 March 2021 indicated that the applicant instructed him that “after speaking to a number of Solicitors informally and family members, he believed that his prospects of a successful appeal had increased significantly due to the High Court decision in Pell v Queen [2020] HCA 12”.
The applicant outlined in his affidavit a history of mental health difficulties prior to, during and following the trial. There is some evidence to support some of the matters of which he gives evidence in the reports prepared by two psychologists for the purposes of the sentencing proceedings, Maxine Blackburn and Dr Danielle Clout. However, some of the assertions about his mental health, particularly at the time of the trial, are not supported by any expert evidence. He says that during his trial “I was unable to speak in my own defence” and that “I could only observe the proceedings passively and helplessly”. He gave evidence that by 2020 he had “recovered stability and confidence and a commitment to life” and says that the overturning of Cardinal Pell’s conviction was one of the reasons which led to him instructing Mr Clowry to file a Notice of Appeal.
The evidence of Ms Blackburn and Dr Clout was prepared for the purposes of the sentence proceedings. Ms Blackburn’s report is dated 27 June 2018 and Dr Clout’s report is dated 6 August 2018. Ms Blackburn, who had treated the applicant since April 2017, said that the applicant was at a high risk of suicide, that he suffered from extremely severe depression, stress and anxiety and severe bordering on extremely severe Post‑Traumatic Stress Disorder. She also said that he had been diagnosed with Reactive Attachment Disorder. She expressed opinions as to whether or not the applicant was likely to reoffend against a child, whether he was at risk of suicide and whether imprisonment would weigh more heavily upon him. Dr Clout prepared a comprehensive psychological assessment report based upon a single consultation with the applicant on 23 July 2018. She included a detailed psychiatric history as well as the results of psychometric testing. She recorded that the applicant was suffering from symptoms consistent with the DSM-5 diagnosis of Adjustment Disorder with mixed anxiety and depressed mood but not any other mental disorder. She recorded that the outlined symptom patterns included “a tendency towards being interpersonally exploitative and manipulative in relationships, a lack of empathy, difficulty recognising the needs of others, and some belief that others are envious of him”. She suggested a likely diagnosis of Narcissistic Personality Disorder or other specified personality disorder with mixed features but indicated that a formal diagnosis could not be given on the basis of a single assessment. She also answered questions relating to his risk of reoffending, sexual reoffending and the effects of a sentence of full‑time imprisonment upon him.
While the reports, in particular that of Dr Clout, describe a significant mental health history they do not provide any basis for a contention that the applicant was unfit to plead or unable to provide instructions to his counsel during the course of the trial or during the period when his earlier appeal was on foot. Nor do they demonstrate conditions which would have prevented the pursuit of the appeal that was filed or explain the delay in seeking leave to file another appeal.
Incompetence of counsel
The context in which ground of appeal alleging incompetence of counsel must be decided was explained by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 35 SASR 356 at [9] as follows:
A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v The Queen, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.
(Footnotes omitted.)
In Alkhair v The Queen [2016] NSWCCA 4; 255 A Crim R 419 at [31], Macfarlan JA (with whom Rothman and Bellew JJ agreed) summarised the principles relevant to a ground of appeal alleging incompetence of counsel as follows:
1. To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel’s conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial.
2. Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf.
3. Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant’s legal representatives’ reasoning at trial or to evidence as to communications between the appellant and those representatives.
4. The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open.
The particulars of the ground of appeal alleging incompetence of counsel are set out above. The evidence and submissions in support of the merits of those particulars were manifestly inadequate to demonstrate their merit.
Evidence of sexual orientation
The applicant points to the failure to call Ms Blackburn to give evidence as to the applicant’s sexual orientation or to cross examine a witness, Judith Clingan, as to her knowledge of this matter.
This issue was a prominent one at trial because the applicant sought to blunt the force of the tendency evidence by drawing the distinction between his homosexual paedophilic interest in the young boys and the heterosexual paedophilic interest alleged in the charges. It was subject of submissions to the jury. It is therefore an issue which was given consideration by counsel for the applicant at trial.
The report of Ms Blackburn made reference to the applicant’s homosexuality. It included a significant number of quotations from other reports relating to the applicant. The report as a whole contained a large number of matters which would have been highly prejudicial to the accused if admitted at his trial. The submissions of the applicant did not explain how the evidence of Ms Blackburn as to his homosexuality could be admitted without reference to his admission of other prejudicial matters. To the extent that the evidence in the report went beyond admissions, it is not clear how it could have been admitted. Where it contained statements of fact (as opposed to statements of opinion) those were likely to constitute inadmissible hearsay in circumstances where the applicant was not going to give evidence at his trial. To the extent to which the evidence in the report contained statements of expert opinion, it is not clear how that opinion could have been admissible in circumstances where the applicant was not going to give evidence and hence the factual basis for the opinion would not be able to be established. A forensic decision not to call the applicant to give evidence was one which was plainly open in the circumstances of the case.
One of the matters of which complaint is made in the draft Notice of Appeal is a failure to cross-examine Ms Clingan about the applicant’s sexual orientation. However, there was in fact cross-examination relevant to that issue. Ms Clingan ran the musical organisation through which the applicant came into contact with the complainant. In cross-examination she was asked about the applicant’s conduct at summer schools. The cross-examination elicited that at those summer camps when there was a break, instead of having a cup of tea with the teachers, the applicant was more interested in spending time with the children. As between the children, he would spend his time with the boys, and she had not seen him spending time with the girls. He was much more interested in chatting to the boys than chatting to her or the other teachers. Plainly this evidence was consistent with the thesis being propounded on the applicant’s behalf and the applicant’s evidence and submissions in this court did not identify what more could have been led and what more should have been led, having regard to the potential prejudice to the accused of leading more than was in fact led.
Psychological or medical evidence regarding sexual dysfunctionality of the applicant and the inability to obtain or maintain an erection
The evidence that ought to have been called was not identified with any precision. There were some references in the reports of Ms Blackburn and Dr Clout concerning the inability of the applicant to engage in sexual intercourse with a female. The most specific evidence was that in the letters of Ms Blackburn dated 4 and 16 April 2018 (that is, very shortly prior to the trial). In the letter of 4 April 2018, Ms Blackburn says:
Mr Aitchison has been working on addressing specific anxieties. In the course of this it emerged that he suffers from erectile dysfunction, and as a consequence he is not able to sustain an erection.
He has never been able to achieve an erection firm enough to allow penetrative intercourse. This problem has always existed and impeded his sexual maturity. His erectile dysfunction has been a result of longstanding unresolved sexual trauma suffered as a very young child.
While the inability to maintain an erection firm enough for penetrative intercourse may have been a matter of significance in relation to the defence case, it was not explained how evidence of this could have been adduced without calling the applicant to give evidence. Any statement by an expert would be dependent upon statements made to the expert by the applicant and not admissible unless the applicant gave evidence. The applicant’s wife of 27 years was deceased and hence unable to give evidence at the trial. Evidence given by the applicant would almost certainly have resulted in cross‑examination about issues of sexual arousal at the time of the tendency incidents, a matter which had the potential to be highly prejudicial to the applicant’s case.
As pointed out above, in the circumstances of the case, a forensic decision not to call the applicant to give evidence was plainly one which was open. This ground of appeal appears to be weak.
Evidence of the applicant’s tenure
This ground asserts that the applicant’s tenure at All Saints’ church was not during the period of the alleged offences and that this was not raised in breach of the applicant’s instructions. This is not an issue raised in the affidavits filed in support of the application. The period during which the offences were alleged in the indictment to have occurred were 27 July 1987 until 6 October 1989. At the trial, counsel for the applicant pointed to evidence that the applicant did not get his “dog collar” until December 1987, challenging the complainant’s evidence that the first incident had occurred when she was 13 years old (pre-October 1987) yet at a time when the applicant wore a clerical collar.
There is no evidence as to what the applicant’s instructions were that were allegedly not followed or what aspect of the dates of the applicant’s tenure were significant but not raised at the trial.
Fear of water and inability to swim
While this is asserted to be a matter of which counsel ought to have introduced evidence at the trial, there was no evidence that the applicant was afraid of water or unable to swim put before the court for the purposes of the application for an extension of time. Nor was this issue elaborated upon in his written submissions. At trial there was the evidence of the applicant given to police in response to the pool allegation that he was not in the pool and “not a swimmer”. However, on the material before the court on this application, it is not possible to conclude that the factual basis for the contended incompetence arguably exists.
Inability to play or teach a violin
Once again, this was a matter which was not elaborated upon in the evidence or submissions put forward in support of the application. While the evidence of the complainant was that the applicant came into contact with her as a result of her playing of violin, it was not as a violin teacher. In the absence of submissions directed to this issue, it is not possible to conclude that the factual basis for the allegation of incompetence arguably exists.
Failure to cross-examine effectively or in accordance with instructions
The written submissions simply provide “Counsel failed to cross-examine the complainant EFFECTIVELY - merely Browne v Dunn examination … and not making a challenge to the violin teaching story”. The assertion of ineffective cross-examination is one which lacks specificity and in relation to which it would be very difficult to establish a miscarriage of justice. In a case like this before a jury, counsel for the applicant would be permitted great deal of latitude as to his forensic judgment as to the manner in which to cross-examine the complainant. The evidence does not establish what aspects of the cross-examination were ineffective or other matters in relation to which cross‑examination should have occurred. The exception to this is the assertion that there should have been a challenge to the “violin teaching story”. Presumably this was on the basis that there was some evidence of the applicant’s inability to play or teach violin that could have been called or that counsel held instructions from the accused on that issue. There is no evidence of that on this application.
Failure to call the accused
Although not identified in the draft Notice of Appeal, the written submissions alleged as a ground of incompetence the failure to call the accused or lead evidence to explain his failure to do so. The fact that he was not going to be called as a witness must have been something known to the accused at the time as he undoubtedly would have received advice about that issue and, having regard to what occurred at trial, must be presumed to have accepted that advice. As I have pointed out above, a failure to call the accused clearly could have been a forensic decision which was open to counsel. Having regard to the uncontested history of the accused molesting young boys of which evidence had been given, calling him as a witness would have had significant risks associated with it. The contention that this amounted to incompetence must be considered to be a weak one.
The decision in Pell
The contention in relation to the decision in Pell is that either it effected a change in the law or, for reasons which were not explained, the factual similarity rendered the prospects of an appeal greater.
The decision in Pell did not change the law: RA v R [2020] NSWCCA 356 at [9]-[12]. As the court itself recognised in Pell at [43], the relevant test remains that in M v The Queen (1994) 181 CLR 487 at 493, although the proper statement of the test must adhere to the language of the applicable legislation: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [46], in this case s 37O(2)(a)(i) of the Supreme Court Act.
Notwithstanding the position taken in the applicant’s affidavit, it should go without saying that a mere factual similarity between the allegations made or the nature of the Crown case in this case and the allegations or nature of the Crown case in Pell is not a basis to say that an appeal in this case has merit. Any appeal asserting an unreasonable verdict is necessarily dependent upon the details of the evidence in the particular case.
The ground of appeal in the draft Notice of Appeal refers to the assertions of the complainant being “unbelievable” and “utterly without corroboration”. Accepting that the case was largely a word-on-word case and that it involved allegations of incidents some 25 years earlier, neither the ground of appeal nor the submissions put in support of it demonstrate the merit of the argument that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence as a whole.
Decision
Although it is possible that with additional evidence or further submissions the grounds of appeal could be established to be stronger, on the material before me I have to assess the prospects of the appeal as being poor and the identified grounds of appeal as being weak. Further, the application must be considered in the context of a very long delay for which there is only a poor explanation, having regard to the fact that an appeal was filed and then discontinued. Taking into account the length and reasons for the delay and the strength of the case for which an extension of time is sought, I am not persuaded that there is a sufficiently arguable case of a miscarriage of justice as would warrant an extension. Therefore, the application will be dismissed.
The order of the Court is:
1.The application for an extension of time within which to appeal out of time from the conviction recorded on 27 April 2018 and the sentence imposed on 13 August 2018 is dismissed.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 27 August 2021 |
3
15
0