Ashby (a pseudonym) v The Queen
[2021] VSCA 209
•30 July 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0168
S EAPCR 2020 0236
| DANIEL ASHBY (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, BEACH and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 July 2021 |
| DATE OF JUDGMENT: | 30 July 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 209 |
| JUDGMENT APPEALED FROM: | [2020] VCC 622 (Judge M P Bourke) |
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CRIMINAL LAW – Conviction – Application for extension of time within which to seek leave to appeal against conviction – Whether trial miscarried by reason of admission of irrelevant and unfairly prejudicial evidence – Whether trial miscarried by reason of incompetence of applicant’s trial counsel – Hectoring, inept and clumsy cross-examination of the complainant – No miscarriage of justice – Applicant’s proposed grounds of appeal not reasonably arguable – Futile to grant extension of time – Application for extension of time refused.
CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Application to set aside judge’s order that applicant’s reporting period under Sex Offenders Registration Act 2004 was 15 years – Judge misled by prosecutor into making order – Crown concession that no basis for order made – Order set aside – Sex Offenders Registration Act 2009, ss 11 and 34.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M Fitzgerald | Doogue + George |
| For the Respondent | Mr J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
EMERTON JA:
On 13 February 2020, following a trial in the County Court, the applicant was found guilty of one charge of sexual assault[2] (charge 1) and one charge of rape[3] (charge 2). On 15 May 2020, the applicant was sentenced to a total effective sentence of 5 years and 6 months, with a non-parole period of 3 years.[4] Pursuant to s 34 of the Sex Offenders Registration Act 2004 (‘the SOR Act’), the judge ordered that the length of the applicant’s reporting period under that Act was 15 years.
[2]Contrary to s 40 of the Crimes Act 1958.
[3]Contrary to s 38 of the Crimes Act 1958.
[4]DPP v Ashby (a pseudonym) [2020] VCC 622 (‘Sentencing Reasons’).
The applicant now seeks an extension of time within which to seek leave to appeal against his convictions and, if the extension of time is granted, leave to appeal against those convictions. The applicant’s proposed grounds of appeal are as follows:
1.The applicant’s trial miscarried as a result of the admission of irrelevant and unfairly prejudicial evidence of an admission by him that ‘I keep doing this shit.’
2.The applicant’s trial miscarried as a result of the incompetence of his trial counsel.
Particulars
(a)the applicant’s trial counsel failed to object to irrelevant and unfairly prejudicial evidence;
(b)the applicant’s trial counsel prejudiced his defence, by engaging in inappropriate and unduly harassing questioning in the cross-examination of the complainant;
(c)the applicant’s trial counsel prejudiced his defence by relying on an improbable factual hypothesis that was not put to the complainant; and
(d)the applicant’s trial counsel prejudiced his defence by a combination of the matters set out in particulars (a), (b) and (c).
The applicant also seeks leave to appeal against sentence. Specifically, he seeks leave to appeal against the order made by the judge under the SOR Act.[5] His proposed ground of appeal is that the judge erred in making that order, ‘in circumstances where no application was made for such registration, and [the applicant] was not otherwise a registrable offender’.[6]
[5]Section 3 of the Criminal Procedure Act 2009 defines the word ‘sentence’ to include orders made under s 11 or s 11B of the SOR Act.
[6]This application was also filed out of time, but an extension of time was granted on 11 December 2020.
CONVICTION
The application for an extension of time within which to seek leave to appeal against conviction requires consideration of the merits of the applicant’s proposed appeal and the applicant’s reasons for not filing his application for leave to appeal within the prescribed time.[7] The respondent submitted that the most significant factor to be considered in assessing the application for an extension of time in this case is the applicant’s prospect of success in his proposed appeal. It was submitted that neither proposed ground enjoyed good prospects of success and that the application for an extension of time should therefore be refused. In the light of that submission, it is appropriate for us to consider first the merits of the applicant’s proposed appeal against conviction.
[7]See Kentwell v The Queen (2014) 252 CLR 601, 613–4 [29]–[33]; Derwish v The Queen [2016] VSCA 72, [55]–[57]; Madafferi v The Queen [2017] VSCA 302, [11]; Chen v The Queen [2017] VSCA 335, [22]–[23].
Relevant background
In January 2018, the applicant and the complainant had known each other for about 17 years. The applicant was aged 39, and the complainant was 37. They had friends in common. The complainant was married to a long term friend of the applicant, but had recently separated, and the applicant was married. The evidence at trial was that there had never been any sense of intimacy, sexual behaviour or romance between the applicant and the complainant prior to 27 January 2018.
On 27 January 2018, the applicant and the complainant attended a barbecue at the home of mutual friends in Tullamarine. There were adults and children present. Alcohol was consumed. As the day wore on, children were put to bed or taken home, but the event continued into the evening.
During the course of the evening, the complainant became unwell, and vomited. She was assisted by AB (whose home it was) to a bed in an upstairs bedroom. At a later point in time, the applicant decided to stay over and sleep at the premises on a couch downstairs. In the early hours of 28 January, the applicant went upstairs on two occasions. On the second occasion, he went into the bedroom which was then being occupied by the complainant.
The complainant’s evidence at trial was that during the course of the evening she was ‘feeling sick and drunk’, and she took herself upstairs to the bathroom to be sick. She was assisted by AB. The complainant gave evidence that she could not remember everything that happened on the night, but she thought she vomited more than once. After assisting her in the bathroom, AB helped her into a bed in one of the upstairs bedrooms. The complainant said that at this time she was fully dressed, wearing an ankle length maxi dress. She did not remember what happened when she got into bed. She believed that she passed out or went to sleep.
The complainant’s evidence was that the next thing that she remembered was feeling a warmth in between her legs, ‘in her genital area’, and feeling a ‘brush’ of what she believed was ‘stubble’ against the inside of her thigh. When asked to be more specific in relation to her genital area, the complainant referred to her vagina. The complainant was then asked and answered the following questions:
What happened when you felt that?---When I felt that I was sort of waking up and the next thing I felt was thrusting into my vagina, and that made me really wake up and realise what was happening.
What do you mean by thrusting?---I felt something hard — um, being inserted into my vagina three times, hard and fast, and that made me feel shocked and made me wake up; open my eyes.
The complainant’s evidence was that when she opened her eyes, she saw the applicant, pushed him off and said, ‘get off me’. When asked what had been thrust three times into her vagina, she said that she did not know, but that she believed it was either a penis or fingers.
The complainant’s evidence was that the applicant then said to her, ‘this needs to be our secret’ and, ‘I’ve ruined things with [my wife]’. The complainant then said, ‘get out’, and the applicant then got up and left the room. The complainant said that she was in shock, and at that point realised that her dress had been pulled up above her waist and that her underwear was off. The complainant’s evidence was that she had not taken her underwear off, and that she believed the applicant had taken them off. She put her underwear back on, lay back on the bed and either went back to sleep or passed out again. She woke again at around 7:00 am, called an Uber and left the house. She said that she went home, lay in bed at home, drank water and tried to recover. Later that day, she went to a local chemist to purchase the morning after pill.
The applicant also gave evidence at trial. He admitted licking the complainant’s vagina, and digitally penetrating her vagina. His evidence was that the complainant consented to these acts, and he gave evidence of his belief that the complainant was a willing participant in the sexual acts he admitted performing.
The applicant gave evidence that he drank approximately 20 beers over 13 hours on the day of the party. By 7:00 pm, he was ‘tired sort of drunk’, although he said he still had his wits about him. At that time, the complainant seemed fine to him. He said he had ‘seen her a lot drunker on other occasions’. When asked whether the complainant appeared drunk to him at any point, he said, ‘not visibly’. He conceded, however, that he knew she had been drinking.
The applicant said that at some point, the complainant ‘took off upstairs’, and at about 1:00 am he thought he went to go to sleep on the couch. He gave evidence of waking up cold and going upstairs in search of a blanket. He was unsuccessful in his search for a blanket. He went back downstairs and slept some more before feeling cold again. He went upstairs for a second time, again searching for a blanket. He entered a bedroom and ‘hopped under the covers’. He was asked and answered the following questions:
Who else was in that room?---[The complainant] was in that bed.
Did you say anything to her?---No, I just got in and got warm under the cover.
For how long?---Maybe a minute, a minute or two sort of, yeah.
What happened next?---Next she was lying on her side so I did start to — my hands went touching her leg. Like it was a bit of a spoon sort of cuddle.
…
Whereabouts on her leg did you touch her?---Just on her thigh.
How long did you touch her on her thigh for?---This went on for like — well, as I was touching her on her thigh she started rubbing her legs against mine so it went on for a few minutes.
Do you remember which leg she rubbed on your legs, was it both legs or one leg?---It was mainly her left leg.
How long was she rubbing your leg for?---This went on for a few minutes until yeah, yeah, she — I sort of went over towards her vagina.
When you say you sort of went over towards her vagina, what do you mean by you sort of went over towards - - -?---My hand went around towards her vagina and that’s when she actually was still rubbing on my legs and she leant over on her back.
Was she wearing any clothes at this point?---Yes.
What was she wearing?---She had a dress on.
…
What did you mean by your hand went over towards her vagina?---Well, it sort of went on her inner thigh and then as it got closer to her vagina that’s when she sort of made it easier for me to access her vagina, moving her back.
How did she make it easier for you to access her vagina?---Well, she just moved back and spread her legs for me so I could get my hand there.
…
How long were you touching her on her vagina?---Maybe a minute or so, same sort of, yeah, went on a bit longer.
What was she doing whilst you were doing that?---At that time she started breathing heavier and she started like she’s enjoying it.
When you say she started to look like she was enjoying it, what do you mean by that?---Heavy breathing and then like her head’s going back and that’s when I inserted my finger into her.
Was her underwear still on when you - - -?---Her underwear was still on, yes, it’s parted. But she was very moist at the time.
And you inserted your fingers into her vagina. How many fingers?---One finger.
Do you remember which finger it was?---Yes, my middle finger.
Could you please tell the jury how it was that you were using your finger inside her vagina, how long did that go on for?---That went on for may be a minute or two and that’s when I can really see her enjoying it and like thrusting into my hand, you know, and I decided to go down, give her, perform oral sex.
The applicant gave evidence that during the course of this encounter he noticed the complainant’s eyes were open. Asked about the first time he noticed her eyes were open, he said that it was when he ‘went to go down on her’. He said he parted her underwear and started licking her vagina. He continued to give oral sex and then he removed her underwear. He said that he:
continued to finger her, insert my finger into her and at this stage she’s like really enjoying it, head back, moaning, yeah, breathing heavy.
The applicant gave evidence that the complainant appeared to be coherent and responsive, and not drunk. He took his shorts off, thinking that they would probably end up having intercourse. He said that when he was between her legs the complainant then said, ‘this is wrong’. Her whole demeanour changed, and he ‘backed off a bit’. When asked what he meant by her demeanour changing, he said:
Just the energy in the room. You could just see that, you know, she wasn’t into it any more, she changed her mind.
He said that he put his arm on her back and asked if she was okay. He said he was shocked. He asked if she wanted him to leave. He said he could feel the tension. She responded, ‘yeah, get out of here’.
The applicant gave evidence that it then ‘hit [him]’ that he had cheated. He said he may have said something like, ‘I’ve ruined things with [my wife]’. He then left the room and went straight home.
In the days that followed, various text messages were exchanged between the applicant and the complainant. Evidence was given about messages which had been deleted, and screen shots of some messages were tendered at trial. One of the screen shots tendered showed a message from the applicant asking the complainant ‘please don’t tell [the applicant’s wife]’. In another message, the applicant said, ‘I know sorry doesn’t cut it but please don’t break up my family’.
Text messages between the applicant and SB (the husband of AB) were also in evidence. One of these was a message which is the subject of proposed grounds 1 and 2(a). In that message, the applicant said to SB:
Hey mate, i understand i have left you no choice but to cut me off. I don’t deserve any friends when i keep doing this shit. I take the blame totally for what happened but just want to let you know she knew what was going on. What’s done is done i can’t change it all i can do is get the help i need and try [to] keep my family together.
Also in evidence was a form headed ‘Emergency Contraception Checklist’ which the complainant filled out when she obtained the morning after pill. The form contained a section where the person seeking the pill was required to tick a box giving the reason why she thought she needed the morning after pill. Four options were provided on the form: the third being ‘sexual assault’; and the fourth being ‘didn’t use contraception’. The complainant ticked ‘didn’t use contraception’ box.
Proposed ground 1: the admission of the applicant’s text, ‘I keep doing this shit’
Background
Proposed ground 1 makes complaint about the admission into evidence of the applicant’s statement, ‘I keep doing this shit’, in his text to SB on 13 February 2018. In order to understand the issue raised, it is necessary to set out some matters of background relevant to this proposed ground.
The applicant’s text of 13 February 2018 was a response to SB’s text to him, sent on 12 February 2018. On 12 February 2018, SB sent the following text to the applicant:
Hey mate, no need to go into what’s happened. Pretty disappointed and upset that it happened at my joint which I and [AB] feel partly responsible for leaving [the complainant] in that situation. … I know your got a lot of shit on including in the near future but you know im one if few stood by you over the last few years but this situation is different, no lessons have been leant [scil, learnt][8] from the past. It’s best for everyone involved if we go our own ways until who knows when you have left me no choice. …
[8]In his evidence, SB said ‘learnt’ when he read out this text. In the balance of these reasons, we will use the word ‘learnt’ when referring to this text.
The applicant gave uncontested evidence at trial that the statement, ‘I keep doing this shit’, in his text of 13 February 2018 was a reference to having committed acts of adultery in the past. Further, there was no dispute at trial that it was acts of adultery in the past to which the texts of 12 and 13 February 2018 referred. Specifically, there was no suggestion at trial that the applicant’s text of 13 February 2018 contained some admission of sexual assault or rape by him (either of the complainant or of anyone else at some time in the past).
Prior to the empanelment of the jury, there was discussion between the judge and counsel about the admissibility of some of the matters in the statements of prosecution witnesses, including SB. Broadly speaking, it was agreed that evidence concerning prior acts of adultery by the applicant would not be led. There was, however, no specific discussion about the admissibility of the material in the texts passing between the applicant and SB on 12 and 13 February 2018. Thus, no objection was taken by trial counsel when these texts were tendered during the course of SB’s examination in chief.
Consideration
The applicant submitted that SB’s statement in his text that, ‘no lessons have been learnt from the past’, and his response, ‘I keep doing this shit’, was put before the jury in the context of SB having become aware of the complainant’s allegation that the applicant had raped her. To the extent that the applicant submitted that his text may have been construed by the jury as some admission of rape by him in the past, that submission must be rejected.
First, SB did not give any evidence that his text was sent in any such context. Nor did he give any evidence that might support the proposition that his statement that no lessons had been learnt from the past was some reference to prior rapes committed by the applicant.
Secondly, on no fair reading of the applicant’s text could it be concluded that he was making any admission of raping anyone in the past. The plain meaning of the applicant’s text (and particularly in the context of it being a response to SB’s earlier text) is that when the applicant said, ‘I keep doing this shit’, he was referring to having previously had sexual relations with married women (or at least women who were then in relationships with other men).
There is no substance in the applicant’s contention that the admission of his statement, ‘I keep doing this shit’, occasioned a substantial miscarriage of justice because it made the jury aware of infidelities committed by the applicant prior to 28 January 2018. No doubt, if the applicant’s trial counsel had objected to the receipt of this statement, or the text in which it was contained, there could have been an argument for either excluding the text or the part about which complaint is now made. The applicant’s text was relevant to the issue of whether the applicant had in fact engaged in any sexual act with the complainant. For that reason, it is unlikely that the trial judge would have excluded the applicant’s text in its entirety.
The statement, ‘I keep doing this shit’, within the applicant’s text of 13 February 2018 was, however, not relevant. If the matter had been raised at trial, it may be that the trial judge would have ruled that the applicant’s text of 13 February 2018 would be admitted, but with the words, ‘I keep doing this shit’, excised.
The applicant’s case at trial was that the complainant consented to the sexual contact between them or, at least, he reasonably believed that she consented. His text of 13 February 2018 was supportive of that aspect of his case. It may be that the applicant’s trial counsel took the view that it was better for the jury to see the whole of the applicant’s text, rather than some edited version, so that the jury could see that the applicant had consistently maintained since February 2018 that the sexual contact between the complainant and the applicant was consensual. There is thus no basis upon which the applicant may legitimately complain now about the admission into evidence of the 13 February 2018 text.
In any event, any danger that the jury might misuse the material in the applicant’s text to SB was comprehensively addressed by the judge in his charge. First, the judge directed the jury in conventional terms that they must not have any regard to feelings of bias or prejudice.
Secondly, the judge directed the jury that, ‘there is no such crime as being a bad person’. Moreover, his Honour also (correctly) told the jury that a criminal court is not a court of morals, and that the task for the jury was to determine whether the elements of the offences charged had been proved.
Thirdly, the judge gave a specific direction about the text messages which were in evidence. He referred to the prosecutor’s submission to the jury that they were ‘utterly neutral’, and that they gave context to what happened in the weeks after the night in question. The judge said:
The relevance of these communications is that they give a context, for example, to [the complainant’s] hesitation or delay in complaint, and then her complaints to friends and others. It helps you assess that. The accused puts arguments that they are communications, apologies and the like, consistent with adultery, not rape. These communications have no relevance beyond these points.
The applicant’s contention that the admission into evidence of the text exchange between himself and SB (or any part thereof) was wrong and occasioned a substantial miscarriage of justice is not reasonably arguable. Proposed ground 1 must be rejected.
Proposed ground 2: the incompetence of trial counsel
Under proposed ground 2, the applicant asserts that the incompetence of his trial counsel occasioned a substantial miscarriage of justice. He relies upon three matters, both individually and in combination, namely:
(a)his trial counsel’s failure to object to the tendering of the text message exchange between the applicant and SB on 12 and 13 February 2018;
(b)an assertion that his trial counsel prejudiced the applicant’s defence, ‘by engaging in inappropriate and unduly harassing questioning in the cross-examination of the complainant’; and
(c)an assertion that his trial counsel prejudiced the applicant’s defence by relying on ‘an improbable factual hypothesis that was not put to the complainant’.
The text message exchange between the applicant and SB
We have already concluded that the applicant’s contention that the admission into evidence of the text exchange between himself and SB (or any part thereof) occasioned a substantial miscarriage of justice is not reasonably arguable. The failure by the applicant’s trial counsel to object to this evidence (or, more specifically, the statement, ‘I keep doing this shit’) did not involve any relevant incompetence on the part of trial counsel; nor did it occasion any miscarriage of justice. Particular (a) of proposed ground 2 must therefore be rejected.
The cross-examination of the complainant
Under paragraph (b) of the particulars of proposed ground 2, the applicant contended that his trial counsel’s cross-examination of the complainant introduced evidence that was unfavourable to the defence; was likely to have been seen as offensive or insulting by the jury; elicited answers which likely would have moved the jury’s sympathies towards the complainant; and was hectoring and, at times, ‘transparently unfair’. The applicant submitted that, apart from being ineffective, the vice of his trial counsel’s cross-examination was that it harmed the applicant’s chances of an acquittal.
Additionally, the applicant submitted that his trial counsel’s questioning frequently offended against s 41 of the Evidence Act 2008; was unnecessarily repetitive and argumentative; included questions which were unfair by dint of being misleading or confusing; contained incorrect suggestions that the complainant had changed her evidence; and was often harassing. More particularly, on a number of occasions, the applicant’s trial counsel suggested that the applicant was saying something for the first time when that was not in fact the case. The applicant submitted that the unduly harassing questioning of the complainant was likely to have reflected adversely on the applicant in the eyes of the jury.
There is substance in some of the applicant’s criticisms of his trial counsel’s cross-examination of the complainant. At times the cross-examination was misconceived. At times it involved putting propositions which, on proper analysis, could not be justified. And on many occasions, the cross-examiner interrupted the complainant in mid-answer — requiring the judge to intervene on multiple occasions to tell counsel to let the witness finish her answer.
On other occasions there was more than one problem with a particular question. For example, in an overly pompous (perhaps insulting) manner, the cross-examiner asked the following wrongly premised question:
Madam, do you highly doubt your own evidence to this court, do you? Is that what you’re saying?
An issue at trial was the level of the complainant’s intoxication on 27 January 2018. The complainant’s evidence was that she was intoxicated to such an extent as to have impaired her memory and her ability to fully consent to engage in sexual activity with the applicant. The applicant’s trial counsel pursued a line of cross-examination to the effect that the complainant drank over a longer period of hours on 27 January 2018 than the period about which she gave evidence. In this Court, that cross-examination was said to be incompetent because, contrary to the applicant’s interests, that reinforced the complainant’s evidence.
We reject that submission. On a fair reading of the cross-examination, it is plain that the applicant’s trial counsel was endeavouring to establish that the period over which the complainant drank a fixed quantity of alcohol was longer than the period the complainant gave evidence about. The purpose of this cross-examination was to show that the complainant would not have been as intoxicated or as affected by alcohol because her consumption of this fixed amount occurred over a longer period of time. That was a legitimate line for the applicant’s trial counsel to pursue in cross-examination of the complainant.
Next, the applicant submitted that his trial counsel’s cross-examination of the complainant was incompetent because it elicited evidence from her that was unfavourable to him in the following circumstances.
In her first police statement, the complainant described a text which she had sent to the applicant (and subsequently deleted) in which she accused him of ‘taking advantage of her’. Notwithstanding the contents of her first police statement, the prosecutor did not adduce this evidence from the complainant in her evidence-in-chief. When cross-examining the complainant about text messages she sent the applicant in the days following their encounter, the complainant was asked and answered the following questions:
The next day, you gave in evidence-in-chief that there were some messages that you sent that were deleted by you and [the applicant]. Correct?---That’s right.
And you text — your evidence was that you texted a message, ‘It was wrong. I feel like I need to tell [the applicant’s wife]’. Correct?---Yes.
Not, it was wrong. You raped me. I feel like I need to go to the police. You didn’t say that to him, did you madam?---I didn’t no. I was scared.
You didn’t say, ‘You took advantage of me’?---I did say you took advantage of me in a message later on.
You didn’t say that the next day during this series of text messages. Actually, when do [you] say that you said that ‘You took advantage of me’?---I said, I — at some point in messaging the day after I said, ‘You took advantage of me’ and I don’t recall what his response was. I built up the courage to actually say that. I was scared. It’s in my statement.
Well, we haven’t seen that in any of the text messages that have been presented to the jury, have we?---No, because those are the ones I deleted.
And he says that his evidence will be that he never, ever received a message from you like that that says you took advantage of me, at that point. The next day. You never sent a message like that the next day, did you madam?---I did.
You’re lying, aren’t you?—I’m not lying.
And you’ve got no evidentiary proof of you sending a message such as that the next day, have you?---No.
While the standard of this cross-examination may be debated, it did not give rise to any miscarriage of justice. Given the applicant’s instructions about what occurred on the night of 27/28 January 2018, the cross-examiner was bound to confront the complainant’s evidence that the applicant had taken advantage of her. In doing so, it was probably inevitable that the complainant would eventually say that this had been her position from the start. While the applicant’s trial counsel’s cross-examination was inept and clumsy, in the context of the whole of the evidence at trial, the eliciting from the complainant that she had sent a deleted text in which she alleged that the applicant had taken advantage of her was not of great moment.
The applicant’s trial counsel’s cross-examination of the complainant was vigorous. It included assertions that she was a liar. It included a suggestion that the complainant was ‘conveniently playing with words to change [her] story’. It also included questions which the judge ruled (correctly) were neither relevant, fair or rational. At one point the applicant’s trial counsel put to the complainant, ‘So he’s allowed to have a version of events too, isn’t he?’, before the judge (again correctly) intervened. The cross-examination also inappropriately descended into the vernacular, with trial counsel putting to the complainant, on multiple occasions, that she ‘got an attack of the guilt’s’. Much of the cross-examination of the complainant was of a regrettably low standard.
That said, while the applicant’s trial counsel’s cross-examination of the complainant was less than ideal, it did not give rise to any miscarriage of justice — much less a substantial miscarriage of justice. The complainant’s evidence was adequately tested in cross-examination. The fact that it may have aroused sympathy for the complainant amongst the jury (or some of the members of the jury) needs to be balanced against the entirely appropriate directions given by the trial judge to the jury about deciding the case based only upon the evidence and without bias, sympathy or prejudice having any part to play.
Moreover, there is nothing to suggest that the vices in the applicant’s trial counsel’s cross-examination of the complainant (as distinct from the instructions he may have given his counsel, as reflected in the evidence he ultimately gave) would have reflected adversely on the applicant in the eyes of the jury, or that they would have harmed the applicant’s chances of an acquittal.
Much of the applicant’s argument under particular (b) of proposed ground 2 was premised on the notion that the jury might ‘punish’ the applicant for his trial counsel’s hectoring, confronting and error-riddled cross-examination of the complainant. An examination of the whole of the transcript of the trial reveals that it is highly unlikely that the jury took any such impermissible course. Specifically, we note that after the judge concluded his charge (containing, as we have said, appropriate directions about deciding the case on the evidence, and without bias, sympathy or prejudice) the jury requested further directions on the definition of rape, the issue of the complainant’s consent, and the issue of the applicant’s reasonable belief in that consent. After receiving further directions, the jury later asked another question in the following terms:
If we don’t accept her account beyond reasonable doubt, do we:
(1), acquit instantly; or (2), consider his statement.
It seems to us that the questions asked by the jury show that, far from punishing the applicant for any defects in his counsel’s cross-examination of the complainant, the jury appropriately engaged with the issues in dispute in the trial for the purpose of deciding the case by reference to those issues. The jury’s questions show a real concern on its part to decide the case appropriately in accordance with law, rather than by reference to the way in which the applicant’s trial counsel cross-examined the complainant.
While the applicant’s trial counsel’s cross-examination of the complainant was substandard, the defects in it did not give rise to a miscarriage of justice and accordingly, particular (b) of proposed ground 2 must be rejected.
The ‘improbable factual hypothesis’ not put to the complainant
Under paragraph (c) of the particulars of proposed ground 2, the applicant asserts that his trial counsel prejudiced his defence by relying on ‘an improbable factual hypothesis that was not put to the complainant’. The so-called improbable factual hypothesis was a submission made by the applicant’s counsel in his final address. The submission was premised on the proposition that the complainant was awake at all relevant times, and therefore well knew that the applicant had not inserted his penis into her vagina. The submission was that, in obtaining the morning after pill, the complainant engaged in ‘a bit of a ruse to bolster her story that she had been sexually assaulted’.
In discussion between counsel and the judge at the conclusion of the evidence, and prior to final addresses, the applicant’s trial counsel foreshadowed making this submission. The judge raised the issue of whether the suggestion that obtaining the morning after pill was a ruse had been put to the complainant in cross-examination. The judge tended to doubt that the matter had been properly put, and suggested that counsel might like to consider his position. Notwithstanding the judge’s words of warning, the applicant’s trial counsel advanced the ‘ruse’ submission in his final address.
In his charge, the judge addressed the arguments of counsel. As to the ruse submission, the judge said:
[The applicant’s trial counsel] put this argument. That [the complainant] sought the morning [after] pill was simply a ruse to bolster her story that she was sexually assaulted. As to that, what I am about to say is comment by me. You are not bound by it, you make up your own mind. I take this argument to you to be, that she went to the chemist to assist the construction of a false allegation that she did not consent, and therefore that she was sexually assaulted. Now it is a matter for you as to whether that was clearly put to [the complainant] for her response. It is also a matter for you, but you might think the argument does not sit well with [the complainant’s] decision not to state or allege sexual assault in the chemist document.
The evidence that the complainant obtained the morning after pill was particularly significant on the issue of consent. This was because the applicant asserted the complainant was at all times awake and consented to his advances. On the applicant’s evidence, the complainant would have known that the applicant did not insert his penis into her vagina. The obtaining of the morning after pill suggests, to the contrary however, that the complainant thought that there was a real possibility that the applicant’s penis had been inserted into her vagina.
Apart from leaving the morning after pill issue alone, there really was no answer that the applicant could give at trial to this evidence other than to suggest (as his counsel did) that this was a ‘ruse’. The real problem for the applicant with the ‘ruse’ hypothesis was, however, the complainant’s failure to tick the ‘sexual assault’ box on the emergency contraception checklist form. If in truth the purchase of the morning after pill was a ruse designed to bolster a claim of sexual assault, then one might have expected the complainant to tick the ‘sexual assault’ box.
The evidence concerning the purchase of the morning after pill posed a real difficulty for the applicant’s case at trial. The fact that trial counsel did not suggest in cross-examination of the complainant that the purchase of the morning after pill was a ruse is of no great moment. If he had complied with his obligations under the rule in Browne v Dunn,[9] he almost certainly would have been met with an answer from the complainant that if it was a ruse, as he suggested, she would have ticked the sexual assault box. Apart from some assertion that the failure to tick the sexual assault box was just an even cleverer part of the ruse, the applicant would have had no answer to this point.
[9](1893) 6 R 67.
By the time it came to final addresses, the applicant’s counsel had a decision to make: either say nothing about what the jury might have regarded as powerful evidence in favour of the proposition that the complainant was not fully awake or aware; or to say something consistent with the applicant’s defence that the complainant was a liar. Both choices had their problems. The decision taken to attempt to address the issue was a rational forensic decision. It was not productive of any miscarriage of justice – much less a substantial miscarriage of justice. Particular (c) of proposed ground 2 must accordingly be rejected.
Extension of time
For the reasons given above, there is no substance in either of the applicant’s proposed grounds of appeal against conviction. In the circumstances, it would be futile to grant him an extension of time within which to seek leave to appeal against conviction. Accordingly, his application for an extension of time will be refused.
SENTENCE
On the plea, the prosecutor submitted the applicant’s conviction for rape was deemed to be a Class 1 offence under the SOR Act and that, pursuant to s 34(1)(b(i), this meant that the applicant’s registration period under the Act was 15 years. The applicant’s plea counsel[10] made no submission in response to these submissions.
[10]Not counsel who appeared for the applicant at trial, or in this Court.
After imposing terms of imprisonment on charges 1 and 2, and fixing a non-parole period, the judge asked counsel about the ‘need to register’ under the SOR Act. The prosecutor told the judge that there was a need to register the applicant and that the registration period was 15 years. The prosecutor relied on s 34(4)(a) in saying to the judge that the applicant’s conviction for rape was deemed to be a Class 1 offence. Again, no submission in response was made by the applicant’s plea counsel.
From the transcript of the sentencing hearing, it is clear that the judge made the 15 year registration order now sought to be appealed from, because he was told that the rape committed by the applicant was a Class 1 offence,[11] and s 34(1)(b)(i) provided that a registrable offender must comply with the reporting obligations imposed by Pt 3 of the SOR Act for 15 years.
[11]Sentencing Reasons [55]-[61].
The respondent now concedes that the judge was misled. Under the SOR Act, rape is a Sch 3 offence. Pursuant to s 8(1) it is a Class 3 offence if committed against a person other than a child by a person who is a serious sexual offender for the purposes of s 8.[12]
[12]A person is a serious sexual offender for the purposes of s 8 if he or she has at any time been sentenced by a court for two or more offences listed in a schedule to the SOR Act (see s 8(3) of the SOR Act).
Section 34(4)(a) of the SOR Act provides that for the purposes of Div 5 (ss 33–38) a person ‘subject to a sex offender registration order’ (defined in s 3 to mean an order made under s 11), ‘if found guilty of a Class 3 offence is deemed to have been found guilty of a Class 1 offence’. This was the deeming provision relied upon by the prosecutor in support of his submission that pursuant to s 34(1)(b)(i) the applicant’s registration period under the SOR Act was 15 years. The flaw in the submission (now conceded by the respondent) is that, at the time of sentencing, the applicant was not ‘a person subject to a sex offender registration order’. In order for him to have been subject to such an order, the prosecutor would have had to have made an application under s 11 of the SOR Act, and no such application was made to the judge.
It follows that we accept the respondent’s concession that the judge made an order ‘in circumstances where the requirements of the Act were not met’, and that this order should now be set aside.
The word ‘sentence’ is defined in s 3 of the Criminal Procedure Act 2009 (‘the CP Act’) to include an order made under s 11 or s 11B of the SOR Act. Section 11B has no relevance in the present case. In order for the applicant’s application for leave to appeal against sentence to be competent, the order he seeks to overturn needs to be characterised as an order made under s 11 of the SOR Act. That issue is not free from doubt. On one view, in making the order he made, the judge must have implicitly made an order under s 11 of the SOR Act so as to engage s 34(4)(a).
On the other hand, the judge’s order under the SOR Act could be characterised as an ‘ancillary order’ within the meaning of s 325 of the CP Act. If the order is not an ‘order that is the subject of the appeal’ (because it was not made under s 11 of the SOR Act and is thus not a ‘sentence’ within the meaning of the CP Act) then it is an ancillary order and, pursuant to s 325(2), this Court may set it aside if it is satisfied that it is in the interests of justice to do so.
The record of orders made in the County Court makes no reference to s 11 of the SOR Act. It simply provides that, ‘pursuant to s 34 Sex Offenders Registration Act 2004, the length of the reporting period is 15 years’. In the circumstances, we think the appropriate course is to treat the order made by the judge as an ancillary order within the meaning of s 325 of the CP Act. Pursuant to s 325(2), we will set this order aside.
For completeness, we note that the respondent expressly stated in this Court that it did not seek the making of any order under the SOR Act in place of the order made by the judge.
Conclusion
The judge’s order that the length of the applicant’s reporting period under the SOR Act was 15 years will be set aside.
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