BTH v Tasmania
[2021] TASCCA 14
•10 December 2021
[2021] TASCCA 14
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | BTH v Tasmania [2021] TASCCA 14 |
| PARTIES: | B T H |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | 808/2021 |
| DELIVERED ON: | 10 December 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 25 August 2021 |
| JUDGMENT OF: | Estcourt J, Geason J, Martin AJ |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Whether substantial miscarriage of justice in that the applicant was deprived of a fair trial because of the
incompetence of his counsel – Applicant found guilty of rape – Strong case against the applicant at trial – Defence case one of consensual sexual intercourse – Alleged incompetence as to failure to adduce
evidence to support the applicant's contested evidence that his complainant wife had a vindictive motive
to lie about consent – Conduct of counsel not found to constitute a material irregularity or a material
irregularity that affected the trial outcome – No miscarriage of justice – Appeal dismissed.
JAGD v Tasmania [2021] TASCCA 16; Crampton v The Queen [2000] HCA 60, 206 CLR 161; Nudd v The
Queen [2006] HCA 9, 162 A Crim R 301; TKJW v The Queen [2002] HCA 46, 212 CLR 124, referred to.
Aust Dig Criminal Law [3515]
REPRESENTATION:
Counsel:
Applicant: C Gunson SC, A Kendall Respondent: D Coates SC, T Smith
Solicitors:
Applicant: Phillips Taglieri Respondent: Director of Public Prosecutions
| Judgment Number: | [2021] TASCCA 14 |
| Number of paragraphs: | 69 |
Serial No 14/2021 File No 808/2021
B T H v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL ESTCOURT J GEASON J MARTIN AJ 10 December 2021 |
| Order of the Court: | |
| Appeal dismissed. |
Serial No 14/2021 File No 808/2021
B T H v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL ESTCOURT J 10 December 2021 |
| The background |
1 The applicant seeks leave to appeal against his conviction for vaginally raping his wife on
Mother's Day 2019.
2 The basis of his application is that the acknowledged act of sexual intercourse was consensual and his trial counsel was flagrantly incompetent in failing to adduce evidence to support his contested evidence that his wife had a vindictive motive to lie about the issue of consent.
3 The application has no merit and should be refused.
4 On 13 May 2019, the morning following Mother's Day, the applicant telephoned his sobbing wife and she recorded the following conversation which became Exhibit P2 on the trial:
"[Applicant] can't live like this.
Hello, what's goin' on?
[Complainant]
(Inaudible).
[Applicant]
[Complainant], go for it. Hang on, I'll turn this off so I can hear ya. You shouldn't um,
be too worried about it I promise you that, I, if I've scared you or anything I promise I
will not come near you at all, I won't even talk to you.·
[Complainant]
You've terrified me [applicant].
[Applicant]
Oh fuck off, you know I'd do anything for ya, I'm fuckin' walking around (inaudible)
for the last fuckin' week. Put barbwire up and everything to protect you guys. I'm sorry
but I'm, yeah, I've really got mixed feelings I, yeah.
[Complainant]
How can you get mixed feelings I was trying -
[Applicant]
I don't, I don't know.
[Complainant]
- to push you off me, I was telling you to stop.
[Applicant]
Oh well you weren't fuckin' making it real convincin' babe. Hey, I'm tellin' you now
you've got nothin' to worry, if you've got to go to the cops go to the cops but you've got
nothin' to worry about, I would not do anything to hurt youse. And as for protecting
your children and that what the fuck do you think's going on?
[Complainant]2 No 14/2021
[Applicant] ya, I won't touch ya, I won't come anywhere fuckin' near ya, all right. This just seems strange that.) I know you reckon nothin' happened in Melbourne and that but how can
You don't have to I'm, I'm, I'm not gonna come near you again I promise all right, you
don't have to worry about me at all.
[Complainant]
You, you, you need to stay away from me.
[Applicant]
I will stay away from ya.
[Complainant]
Okay.
[Applicant]
But I, I've got nowhere to go. Where are ya?
[Complainant]
At home.
[Applicant]
Who have you talked to?
[Complainant]
What do you mean who have I talked to?
[Applicant]
Well who have you talked to, to say this sort of shit.
[Complainant]
I don't need to talk to anyone [applicant], but what, you, what happened last night is
you've completely and utterly fucked up.
[Applicant]
Yeah, well I didn't realise that it was, what you were saying like, really, really though
like I, I know you're gonna go to the cops, I know you're -
[Complainant] ·
And what are they gonna do?
[Applicant]
Well oh do me for fuckin' statutory rape. I'll go to gaol for fuckin' six years, seven years
[Complainant]
Ohh.
[Applicant]
- for that.
[Complainant]
And then what happens?
[Applicant]
What do you mean then what happens? I'll go to gaol.
[Complainant]
What, like the most fucked thing with all of this is you're [...] father, so what am I, what
am I s'posed to say to him, oh sorry darling you don't see daddy because he's in gaol
'cause he raped mum.
[Applicant]3 No 14/2021
you just forget about that, that this is this is killing ya for someone who reckoned you
loved me a day ago?
[Complainant] fuckin' enjoyin' it I thought.
I've never ever, and when people have asked me oh are you safe and I would always
say oh no he would never do anything to hurt me.
[Applicant]
See everyone's already askin' you am I safe, see you'd [patently] have to be a cunt to
have everyone (inaudible).
[Complainant]
No I'm not it's because we're still living -
[Applicant]
They're already saying that.
[Complainant]
- under the same house.
[Applicant]
Well why are people running around saying are you safe, who's saying, askin' if you're
still safe? Tell me.
[Complainant]
Even D asked if I, if, if I was safe and I said yes.
[Applicant]
Well why do you people think I'm such a bad person?
[Complainant]
It is more than it's an, it, it's an ended relationship and we're still living under one roof.·
[Applicant]
Yeah, well you've come out of it all right, you've got a house I've got nothin', nothin',
you did good out of it, played your cards well. And I'm, I'm gonna need at least a month
to get my shit sorted all right. I'm, I won't come now I won't yeah, I won't even talk to
you if you don't want me to talk to you that's fine.
[Complainant]
Yep.
[Applicant]
Can you give me a little bit to sort meself to get out?
[Complainant]
If you can promise and you know you're not gonna do anything like that ever again.
[Applicant]
I promise I'll do nothiti' like that again, I honestly thought it was okay.
[Complainant]
Well you didn't hear me say stop?
[Applicant]
[Complainant]
I, I was trying to push your hand out of me.
[Applicant]
Oh well like you didn't try very hard.4 No 14/2021
[Complainant]
Oh.
[Applicant]
But let's not, let's not go there ali' right, if that's what, if that's how you feel and all that
then yeah, that's fuckin', that's not good enough and I'll tell you now it won't happen
again, I won't come anywhere near ya all right I promise.
[Complainant]
Well you've got to understand you are so much stronger than what I am.
[Applicant]
Ohh. I didn't hold you very hard, I didn't.
[Complainant]
Ohh.
[Applicant]
I didn't really even have hold of ya. Well let's not go there all right. It won't happen
again, you won't feel like that, all right and I'll move on and I'll yeah, start hangin' out
with someone else and yeah, leave you alone okay.
[Complainant]
Yep.
[Applicant]
Mm?
[Complainant]
Yep.
[Applicant]
Okay. I still love ya. I know you don't love me but I do love you really.
[Complainant]
This isn't normal [applicant].
[Applicant]
No. Oh well, maybe I've got problems. All right, I'll get goin' and leave you alone.
[Complainant]
Yep. Bye.
[Applicant]
Ta-ta, see ya."
5 Section 185 of the Criminal Code defines rape as follows:
"185 Rape (1) Any person who has sexual intercourse with another person without that person's consent is guilty of a crime. Charge: Rape"
6 Section 3 of the Code defines consent, relevantly for present purposes, as follows:
"2A Consent
(1) In the Code, unless the contrary intention appears, 'consent' means free
agreement.5 No 14/2021
(2) Without limiting the meaning of 'free agreement', and without limiting what may constitute 'free agreement' or 'not free agreement', a person does not freely agree to an
act if the person –
(a) does not say or do anything to communicate consent; …"
7 Relevantly, s 14A of the Code deals with the defence of honest and reasonable mistake as to consent to sexual intercourse in the following terms:
"14A Mistake as to consent in certain sexual offences (1) In proceedings for an offence against section 124, 125B, 127 or 185, a mistaken belief by the accused as to the existence of consent is not honest or reasonable if the
accused –
(a) …
(b) was reckless as to whether or not the complainant consented; or (c) did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act."
8 In my view, given the contents of Exhibit P2, the asserted incompetence on the part of trial counsel could not have given rise to a substantial miscarriage of justice in that it deprived the applicant of a chance of acquittal that was fairly open to him.
The application
9 The amended notice of appeal asserts as follows:
"2 There was a substantial miscarriage of justice in that the applicant was deprived of
a fair trial because of the incompetence of his counsel.Particulars of Incompetence of Counsel
A Failed to undertake adequate pre-trial preparation to represent the applicant at
trial, including failing to:
(i) take comprehensive instructions from the applicant at a time sufficient to permit proper investigations to be undertaken and to prepare for the applicant's trial. B Failed to interview the following witnesses, who the practitioner knew or ought to have known were available and could give admissible and probative evidence: 1 J L 2 R G 3 J P 4 M H C Failed to take proper instructions from the applicant so as to identify that the following witnesses were available and could give admissible and probative evidence: 1 A D 2 M H D Failed to adduce admissible and probative evidence from the following
witnesses that was consistent with the applicant's innocence:
1 J L
2 R G
3 J P
6 No 14/2021
4 M H 5 A D 6 M H
E
By failing to interview and adduce evidence from the above witnesses, failed to present the strongest possible case to the jury that the complainant had a motive to lie about the issue of consent and was lying about the issue of consent and in doing so deprived the jury of available, relevant, and highly probative evidence capable of creating a reasonable doubt in the minds of the jurors properly instructed.
F
Failed to apply for an adjournment of the trial (and failed to seek instructions to do so), when on or about 24 March 2021 the Crown disclosed Snapchat messages the complainant claimed were sent by the applicant to her in circumstances where the applicant denied sending the messages.
G
Failed to advise the applicant that, in circumstances where he denied sending the Snapchat message, he had the right to obtain independent expert evidence from a Digital Forensic Expert that:
1 Tasmania Police had not followed appropriate digital forensic procedures regarding the Snapchat messages; and,
2 That it was impossible to prove on the messages disclosed that they were actually sent by the applicant.
H Failed to obtain independent expert evidence from a digital forensics expert of
the kind indicated in the report of Ms Noordin.I Failed to appropriately cross-examine the complainant about the possibility
that the Snapchat messages were fabricated by her.J Failed to submit to the jury that there was a possibility that the Snapchat
messages were fabricated by the complainant.K Failed to cross-examine Detective Foster about his failure to seize the complainant's phone for digital examination and, more generally, to apply appropriate digital forensic procedures regarding the Snapchat messages.
L Failed to tender (and in doing so failed to comply with his client's instructions) a bundle of text messages exchanged between the applicant and complainant in June and July 2019 that were admissible and assisted to resolve the issue of consent in favour of the applicant. M By one or more of the above failings, the practitioner's incompetence the applicant was denied the opportunity of an acquittal and a substantial miscarriage of justice has resulted."
The law
10 The principles relevant to an appeal such as the present were admirably adumbrated by Porter AJ in JAGD v Tasmania [2021] TASCCA 16 at [63]–[64] in the following terms:
"Incompetence of counsel – the principles to be applied
The proper approach to cases in which a miscarriage of justice is alleged to have arisen from the incompetence of counsel has been explained by the High Court in TKWJ v The Queen [2002] HCA 46, 212 CLR 124 and in Nudd v The Queen [2006] HCA 9, 80 ALJR 614.
The following propositions emerge:
Incompetence of counsel is not of itself a ground of appeal, the relevant ground is whether there was a miscarriage of justice as referred to in s 402(1) of the Criminal Code: Nudd per Gleeson CJ at [2].
The concept of a miscarriage of justice has two relevant aspects; outcome and process – different but related in the sense that due process is to secure a just result. A failure of process that departs from the essential requirements of a fair trial is a 7 No 14/2021
miscarriage of justice: TKWJ per McHugh J at [76]; Nudd at [3]-[7] per Gleeson
CJ.
If there has not been a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ per McHugh J at [76]; Nudd at [3]-[7] per Gleeson CJ.
In other cases – perhaps the majority – irregular conduct of counsel will not deprive a person of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues; did counsel's conduct result in a material irregularity in the trial, and is there a significant possibility the irregularity affected the outcome?: TKWJ per McHugh J at [79]; Nudd per Gummow and Hayne JJ at [24].
In a case of that kind, the enquiry is an objective one; the question is whether so viewed, the course taken by counsel was capable of rational justification or explanation: TKWJ per Gleeson CJ at [16], Gaudron J at [26]-[27], McHugh J at [95], Hayne J at [107]; Nudd per Gleeson CJ at [9], [16], per Callinan and Heydon JJ at [158].
Where an applicant contends that the conduct of counsel has caused a criminal trial to miscarry, he or she carries a heavy burden: TKWJ per McHugh J at [74].[1] As a general rule, counsels' decisions bind the client; the party is held to the way in which counsel presented the case: TKWJ per McHugh J at [79]; Nudd per Gleeson CJ at [9]. This is so even if decisions were made without or contrary to instructions, or involve errors of judgment or even negligence: TKWJ per McHugh J at [79][2].
[1] His Honour cited R v Miletic [1997] 1 VR 593 at 597. See also McMahon v Western Australia [2010] WASCA 143 at [24], [67], [68].
[2] His Honour cited R v Birks (1990) 19 NSWLR 677 at 685.
Describing trial counsel's conduct as 'incompetent' – with or without some
emphatic term like 'flagrantly' – must not distract attention from the question of
whether there was a miscarriage of justice. That requires a consideration of what did or did not occur at the trial, not why that situation came about. The question does not turn on adjectival classifications of competence. TKWJ per Gaudron J at [31], per McHugh J at [75], per Hayne J (with whom Gummow J agreed) at [103]; Nudd per Gleeson CJ at [8], per Gummow and Hayne JJ at [24]-[27].
Sometimes however, a decision about whether a miscarriage of justice has occurred requires an understanding of the circumstances; this may involve an understanding about why something happened: Nudd per Gleeson CJ at [9]."
11 And as counsel for the State, Mr Coates SC, pointed out in his written submissions, in determining whether there has been a miscarriage of justice, the following principles outlined by Gleeson CJ in Crampton v The Queen [2000] HCA 60, 206 CLR 161 at [15]-[19] should be considered:
"First, there is what was referred to by L'Heureux-Dube J in the Supreme Court of Canada as 'the overarching societal interest in the finality of litigation in criminal matters' when she said:
'Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters could be spread out over years in the most routine cases.'
Secondly, it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial. This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges.
Thirdly, it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an
8 No 14/2021
appreciation of tactical considerations, that may never be available to an appellate court. The material upon which a judge, either at trial or on appeal, may form an opinion as to the wisdom of a course taken by counsel can be dangerously inadequate, and, when it is, the judge may have no way of knowing that. Ordinarily, a barrister knows more about the strengths and weaknesses of his or her client's position than will appear to a judge, whose knowledge of the case is largely confined to the evidence.
Fourthly, as a general rule, litigants are bound by the conduct of their counsel. This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case. For that reason, courts have been cautious in expounding the circumstances in which an appellant will be permitted to blame trial counsel for what is said to be a miscarriage of justice.
Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice."
The applicant's submissions
12 The applicant gave evidence at his trial of a conversation with his wife in March 2019 in which he had promised her that he would stop messaging and contacting other women and would not "cheat on her again" and in which she said that if she found that he was unfaithful to her again, she was going to ruin him. He said that her words were, "[i]f you cheat on me again, I will ruin you."
13 In cross-examination, the complainant was asked if she recalled telling the applicant that if he did not "change his ways", that she would "ruin him". Her answer was "[n]ever".
14 It is against that background that the applicant now submits that the couple's sexual relationship continued until 14 July 2019 when the complainant caught the applicant cheating on her again, and on 16 July 2019, the complainant vindictively reported the allegation of rape on 12 May 2019 to Tasmania Police.
15 It is submitted that prior to the applicant's trial there was a significant body of evidence available corroborating the complainant's threat and demonstrating a vindictive motive to lie about the rape in order to "ruin", "destroy", "end" or "get back" at the applicant.
16 The applicant further submits that available evidence was not adduced by his trial counsel on his behalf to establish a normal relationship between him and the complainant after 12 May 2019 including text messages between 28 June 2019 and 16 July 2019 which "show a contemporaneous insight into the mindset of both parties at a time when no allegation of rape existed".
17 Finally the applicant submits that expert evidence, now in existence, is capable of demonstrating that important evidence about Instagram messages said by the complainant to have been received from the applicant was possibly fabricated by the complainant, and that such evidence was not sought by the applicant's legal practitioner and adduced to the jury.
18 A number of affidavits were filed on this application. The following summary of the asserted evidence relevant to the existence of a vindictive motive on the part of the complainant to lie as to the issue of consent is taken from the written submissions of counsel for the applicant, Mr Gunson SC and Mr Kendall:
9 No 14/2021
"Mr R G
17 Mr G is a friend of the appellant. The appellant would often discuss his marital
problems with Mr G.
18 Mr G deposes that between four and six months prior to the allegation of rape,
the appellant told Mr G that the complainant had threatened to 'destroy his life' or 'ruin
him' if the appellant ever cheated on the complainant again.
19 Given that the complaint was made in July 2019, the timing of Mr G's recollection aligns with the evidence that the conversation took place in March 2019.
20 The appellant's report of the threat was made to Mr G at a time when an allegation of rape was not in existence.
Ms M H
21 Ms H deposes that on a day well prior to July 2019, the appellant reported to
her that the complainant had threatened to 'end him' if she caught the complainant
cheating on her again.
22 The report was made to Ms H at a time when an allegation of rape was not in
existence.
Ms J L
23 Ms L deposes that she is friendly with the complainant and that they would
regularly discuss aspects of the complainant's marriage. Discussion of the sexual
aspects of the marriage suggest a trusting friendship.
24 Two days prior to the complainant ending the marriage, in July 2019, she
visited Ms L at her home. Given the content of the conversation it is inferred this
meeting took place on 14 July 2019.
25 During the course of the conversation, the complainant told Ms L that she had caught the appellant cheating on her again was going to 'get back' at him. The complainant did not specify her method of revenge. Ms L understood the complainant's statement to be a threat against the appellant."
19 As to the existence of a normal relationship between the alleged rape and the report of it to police, the applicant says that the following evidence was available to his counsel on proper inquiry:
"J L
93 In addition to her evidence about the complainant's desire for revenge against the appellant, Ms L gives other probative evidence.
94 The complainant told Ms L that sex with the appellant could be rough and that
she 'loved rough sex'.
95 Ms L and the complainant had a conversation shortly before she went to the police and the complainant reiterated her love of sex with the appellant.
96 During the same conversation, the complainant, despite being emotional, did not make any complaint of rape to Ms L.
97 The balance of Ms L's evidence paints a picture of the complainant acting in a
way that was inconsistent with her allegation of rape and more consistent with a plan
to seek revenge on the appellant.
J P
98 Mr P is a building contractor who was engaged by the appellant to do some work at the complainant's home.
99 Mr P attended the complainant's home on 13 July 2019 to do the work. He returned on 15 July 2019.
100 On either 13 or 15 July 2019, the complainant told Mr P that 'I know [the applicant] would never do anything to hurt me or the boys'.
101 Obviously, this comment was made several months after the complainant alleges that she was violently raped by the appellant in the presence of her young son.
10 No 14/2021
102 Either the complainant is lying about the alleged rape or lying to Mr P. Either way, such a lie is capable of damaging the complainant's credibility.
103 Given that the comment was made at a time prior to the complainant
developing her vindictive motive, it is more likely that the complainant was lying to
the Court.
104 The complainant's statement to Mr P is entirely inconsistent with her
allegations of rape.
M H
105 Mr M H is the appellant's father.
106 The complainant told the police that she fears the appellant. She told the appellant that she feared him during the illegally recorded telephone conversation.
107 Mr M H deposes that he has personal knowledge of the appellant and complainant being alone in the appellant's secluded caravan.
108 On 8 July 2019 C staying with Mr M H and his wife so that the appellant and complainant could be alone in the caravan.
109 A reasonable inference is that the pair wished to engage in sexual intercourse,
which is externally consistent with the complainant's comment to Ms L that she loved
sex with the appellant.
110 Mr M H goes on in his affidavit to discuss a barbeque at the caravan, only two days prior to the allegations of rape being made, where the appellant and complainant's behaviour was 'normal' and that he remembered thinking 'that it was good to see [the applicant] and [the complainant] getting on well together and I had hoped that their loving behaviour towards each other would continue' ...
A D
112 Ms D deposes to attending a family dinner with the appellant and complainant at [Tavern] shortly before the marriage ended.
113 Ms D deposes, 'during this dinner, [the complainant] and [the applicant] were behaving very normally towards each other and gave the impression that their
relationship was now in a good place … I was shocked to hear that [the complainant]
had made an allegation of rape against [the applicant] only a short time later."
20 As to the assertion that the complainant may have fabricated Snapchat messages said to have been sent to her by the applicant on the day of, but prior to, the alleged rape, the following evidence given on the trial by the complainant provides the background relevant to the applicant's submissions:
"Okay, and did you hear from Mr H again?… did, I had received a Snapchat photo from
him of his erect penis. He was in the shed when he had – like it was from when he must
have gotten out of the jacuzzi back into the shed, and I replied to 'Find someone else tosend that Snapchat shit to'.
Did the message that you – sorry, the photo that you received -… Mhm.
- did that have any words attached to it?……It did, it was like 'eat me' or it – or 'fuck
me' or something derogatory like that.
And did you reply to that message?…Yes, that's one I replied to – in the text Snap 'Find
someone else to snap that shit to'.
And did Mr H reply to that response from you?…Yes, he did at 4:44 pm.
And what did he say?…'Do as you're fucking told –'
HIS HONOUR: Are these going in, Ms Smith?
MS SMITH: Yes, your Honour, I'll just –
WITNESS: Sorry.
MS SMITH: She's given enough of her evidence, I – I will just get you to have a look at this document please?……Oh 'Do as you're fucking told cunt –
11 No 14/2021
HIS HONOUR: No, just a moment.
MS SMITH: (Resuming): I will just ask you to look at that document, what is
that?……That is the screenshot of the Snapchat he sent me that I used my iPad to take.
Alright. Can you read out the exact words of his response?……
Do as you're fucking told, cunt, stop this anger. I am not going to stop fucking yah, I'll leave you alone when I move out.
Now you said that you took a photo of the message with your iPad?……Yes.
Why did you do it that way?……Because if I took a screenshot on my phone he would
have found out.
And how would he find out?……Because Snapchat sends the person – a notification
in the chat saying, '[the complainant] took a screenshot,' or whoever and I didn't want
him to know that I had a copy of it.
Okay. And, why didn't you want him to know that?........Because I'm terrified of him
and of what he can actually do.All right. Now, is there a reason that you needed to take a photo of your message with
your iPad at that time?........I – since the separation in April-
Sorry – just in relation to Snapchat and the way that it records messages- ?........Yep--is there a reason that you had to take a photograph at – at that time that you've received
it?........Yes, 'cause I was worried that he was going to do something to hurt me. correct?........Uhm.
And, is that on Mother's Day, that – the same day- ?........On Mother's Day, the same –
the 12th of May 2019."
21 The applicant submits that the complainant already had a vindictive motive to harm the applicant, and under cross-examination accepted that she is very familiar with technology. He submits that other evidence demonstrates that she has a good understanding of how Snapchat works, and the fact that she "was prepared to engage in entrapment like behaviour by recording a private telephone conversation without the appellant's consent shows that she was willing to engage in possible criminal conduct to secure the conviction of the appellant".
22 The applicant says in his affidavit filed on the present application that the image of his penis shown in one of the screenshots was an old image that he sent to multiple people, including the complainant, approximately six months prior to the alleged rape He submits that with fabrication being a distinct possibility, competent counsel would have sought an adjournment and advised him to seek expert advice from a digital forensics expert. He notes that the complainant's phone was not seized and examined by Tasmania Police and nor was his.
23 The applicant has now obtained such evidence and it is summarised in his counsel's written
submissions as follows:
"Mar Noordin's Evidence
61 Ms Noordin opines that, 'in my experience, matters involving electronic communications benefit significantly in having proper digital evidence management to either support or refute the claims. In this matter where there was Snapchat communication of value, it immediately follows that the clearest way to ascertain authenticity of the communication is to conduct examination of the devices that were allegedly used, and analysis of the data contained within them'.
62 Ms Noordin goes on to say, 'it is my opinion that a combination of data from
both parties' mobile devices and Snapchat account records would provide the greatest
possibility in determining the authenticity or otherwise of those messages'.
12 No 14/2021
63 Ms Noordin also opines that, 'should one party's device be unavailable (for extraction), it is even more critical to obtain an extraction of the remaining parties'
devices' …
66 Ms Noordin describes the operation of Snapchat and crucially explains the difference between a Snapchat username and a Snapchat display name.
67 A Snapchat username is the unique name that is registered with an account.
68 A Snapchat display name is not unique and 'a user can set a custom display name and change it at their preference'.
69 Ms Noordin also states that it is possible for the recipient of a message to change the display name of the sender's account as seen on their device.
70 Figures 3 and 4 of Ms Noordin's report show a display name of 'Michelle Obama'. Obviously, it is not the former First Lady of the United States sending Ms Noordin Snapchat messages, but a person assuming her identity by changing their display name. The sender's username is not shown.
71 It follows that the only way of determining the likely sender of a Snapchat message is to look at the sender's account username and not the display name.
72 Ms Noordin goes on to opine that, 'as the Snapchat Evidence provided to me
contained no identifying metadata, I was not able to identify who the apparent senders
and recipients of the messages were'."
24 Counsel for the applicant submit that from a technical perspective, it would have been relatively easy for the complainant to fabricate the Snapchat messages. They argue that the only feature linking the Snapchat messages to the applicant is the word "[the applicant]" in the top left-hand corner of the screen but that is merely the display name of the sending account, and Ms Noordin's evidence is that the display name can be personalised and changed.
25 Counsel submit that it was entirely possible for the complainant to have:
Saved the picture of the complainant's penis on her phone six months earlier; Created a second Snapchat account; Set the display name of the second Snapchat account to "[the applicant]"; Sent the messages to herself from the second Snapchat account; and, Then taken the Screenshots tendered in evidence. 26 Counsel submit that even if Ms Noordin's evidence was not obtained, trial counsel's failure to cross-examine the complainant about possible fabrication of the messages was incompetence of the type found in R v Birks (above).
27 Finally, the applicant's counsel submit as to the text messages available to trial counsel after the alleged rape and before it was reported to police, that it is clear from the trial transcript that counsel was aware of the text messages because he asked the complainant, "[w]ell you'd continue to message each other. This is even after he's left to move to Campania. You continued to message each other with messages of love and support?" and the complainant responded, "[b]ecause, he was my son's father and
I knew I had to sort of play along to – for my safety and for my children's safety".
28 Counsel submit that on the applicant's case, the complainant's response is a recent invention intended to explain away prior inconsistent conduct and, as already noted, the text messages between 28 June 2019 and 16 July 2019 show a contemporaneous insight into the mindset of both parties at a time when no allegation of rape existed.
29 Counsel submit that the jury was left with two competing hypotheses about the messages, namely, as alleged by the complainant, the messages were an attempt by her to placate the applicant
13 No 14/2021
and keep her and her children safe, or the messages showed the ordinary loving interaction of a married couple prior to the complainant developing a vindictive motive to harm the applicant. They submit that the messages themselves were the best evidence for the jury to resolve this issue, "particularly in light of other evidence about motive and possible fabrication".
Discussion
30 In my view the applicant's submissions are far-fetched and unpersuasive. In particular the convoluted pathway to fabrication of the Snapchat messages suggested on behalf of the applicant. Even with the benefit of expert evidence I find it impossible to accept that the members of the jury would have given any weight to such a submission in view of the other available evidence of the applicant's guilt.
31 Even assuming that the complainant had a vindictive motive for reporting to police that she had been raped and that she resumed a normal relationship with the applicant after Mother's Day 2019, and until 14 July 2019 when the condition precedent to her threat to ruin the applicant was fulfilled, that does not erase the fact of the alleged rape. The telephone conversation between the complainant and the applicant on 13 July 2019 was more than sufficient evidence to satisfy a jury beyond reasonable doubt that the complainant was not consenting to sexual intercourse and that the applicant was at best, reckless as to whether or not she consented.
32 If the members of jury required more evidence than that, then, even leaving aside altogether the impugned Snapchat messages, they had the evidence of the complainant's complaint made to her friend Ms W by text message and telephone conversation almost immediately after the alleged rape.
33 The evidence from the complainant as to that appears from the trial transcript as follows:
"When did he stop having sex with you?……He stopped once he'd ejaculated.
Okay. Now you said before that C was in the lounge room when you went into the
kitchen -……Yes.
- did he stay in the lounge room?……He came to the kiddie gate and he was standing
up at the kiddie – kiddie gate screaming and crying.Okay. Could you see the kiddie gate from where you were over the breakfast bar?……Yes. Okay. ……And it was an ear-piercing scream. After Mr H ejaculated, what did you do next?……I quickly pulled up my pants and ran to the bathroom to clean myself up. Mhm. Did you say anything to him at that point?…… "You're never going to touch me again". Did he say anything to you?…… 'Oh that wasn't rape you should have fought harder'. Did you contact anybody?……I contacted my best girlfriend, R. And what's R's full name?……R (indistinct name) W. Okay. And how did you contact her?……It was – I'd actually sent her the screenshot that I received – that I took of the Snapchat at 4:44, and then after it all happened just – it was probably a quarter to seven, I sent her a message saying 'I don't know what the
fuck to do he just forced himself on me'. And did you hear back from Ms W after sending that message?……She tried to call straightaway, which I declined the call, and sent her a message saying 'I'm outside
having a cigarette' or 'a smoke and I don't want him to hear me on the phone'.Okay. Did you talk to her at all that night?……I did, he had left the property and I called her. Okay. And what did you tell her?……Absolutely everything." 14 No 14/2021
34 Ms W's evidence was in the following terms:
on that day?........Yes.
How did [the complainant] contact you?........Via text message.
And, about what time was that?........6.59 pm in, yeah, the evening.
And, what did that text message say?........It said, 'I don't know what the fuck to do he
just forced himself and raped me.'
And, when you got that message, what did you do?........I immediately tried to call her
but she didn't answer.
And, when she didn't answer, what did you do then?........I waited and received a further
text message from her saying she was outside having a smoke and couldn't talk.
Did she say why she couldn't talk?........She didn't want [the applicant] to hear us on the
phone.
And did Ms H end up calling you?........Yes."And, now I'll take you to the 12th of May 2019. Did you hear from [the complainant] hysterical, I couldn't understand anything she was saying but she explained to me what
had happened and the events of – of the details of the how and what had happened- HIS HONOUR: Sorry to interrupt, is this still the 12th of May?
WITNESS: Correct.MS KNOX: (Resuming) And what – what did she say had happened?........She told me that [the applicant] had come inside from the shed to see C. C was in the lounge room with [the complainant] and there was a child gate between the lounge room and the kitchen, sort of separating, and when [the applicant] came into the lounge room and sat
out – sat down on the floor, she said she got up at that point, he sort of tried to pull her down on top of him and she sort of broke free. Walked into the kitchen, or stepped over the kiddie gate, walked into the kitchen - he then followed her. Left C in the lounge room, followed her into the kitchen to the pantry where he sort of started to try and kiss her and grope her I suppose, if that's the word. And, she was pushing him away, forcing him off. And, it was then that he was grabbing at her further and forced her, twisted her
and pushed her over into the breakfast bar and she was – from behind sorry, so he was behind her and she was pinned up against the breakfast bar. And, did she – she tell you what [the applicant] did while she was pinned up against the breakfast bar?........Yes. She- HIS HONOUR: Could you – could you do the best you can to use the words that she used to you please?
WITNESS: Yep. Yep. Okay. So, she said that:-He had me pinned up against the breakfast bar. My hip was pressing into the breakfast bar and it hurt.
She was telling him:- No. No. Stop. I don't want to. She was pushing his penis away with her hand. And, C was sitting – was at the kiddie gate and yelling out because he obviously could see, and, she could do nothing and he forced himself on her and had sex – had intercourse. MS KNOX: (Resuming) And, you said that she was hysterical when she was telling you about this. Can you just explain what you mean by that?........She was hard to understand through her crying and her howling. I kept sort of having to interrupt her
and say 'What do you mean? I – I can't understand what you're saying,' to get her to repeat what she was meaning.
And did she tell you about any injuries that she received in this incident?........Yeah, shehad a – quite a sore hip. A bruised hip from the – the breakfast bar pushing into it. Did you see those injuries?........No, I did not.
15 No 14/2021
Why did – do you think that you didn't see them?........Ah, because I hadn't – I hadn't
actually seen her for quite some days after the incident.
Why was that?........She went to a hotel and I – oh – look to be honest, sorry, I'm trying
to recall now.HIS HONOUR: She told you she went to a hotel, did she?
WITNESS: She – I'm trying to think. No, that might be another incident, I apologise.
Yeah, look um I can't recall exactly – we don't see each other every day.MS KNOX: (Resuming) And, did – did you give Ms H any advice about-?........Yes. I
said to go to the police."
35 The suggestion by trial counsel to Ms W and to the members of the jury was that the evidence as to complaint was as the result of collusion between her and the complainant and was a fabrication. It was open to the members of the jury to reject that suggestion.
36 It is not necessary for me to resolve any factual dispute between the applicant and Mr Stevens. Even assuming that all of the criticised acts or omissions ought not be regarded as involving forensic decisions made by Mr Stevens by which the applicant is effectively bound: (Crampton v The Queen (above) at [15]-[19]), I am of the view that none of the courses the applicant says that he instructed Mr Stevens to take, or that competent counsel might have taken, and none of the evidence coming before the jury as a result, would have affected the outcome of the trial.
37 This is not a case where any irregular conduct of trial counsel has deprived the applicant of a fair trial. As already noted, in such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues; did counsel's conduct result in a material irregularity in the trial, and is there a significant possibility the irregularity affected the outcome. The outcome of this trial was not affected by the alleged incompetence. And it cannot be said that as the result of any such incompetence, the applicant was deprived of a chance of acquittal that was fairly open to him.
Disposition
38 I would refuse leave to appeal.
16 No 14/2021
File No 808/2021
B T H v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL GEASON J 10 December 2021 |
39 The appellant's submissions in this appeal, as they relate to the conduct of his counsel, exhibit naivety in the conduct of a criminal trial, and overlook the practical and tactical considerations required to be factored into that task. Overlooking the strength of the case against the appellant, his solicitors have allowed themselves to be seduced by their own arguments and have pursued an appeal that is utterly without merit.
40 The particular matters asserted by the appellant as evidencing the incompetence of counsel are
these:
1 A failure to adequately prepare the case.
2 A failure to call a witness [RG].
3 A failure to call a witness [JP].
4 A failure to call a witness [JL].
5 A failure to call a witness [MaH].
6 A failure to call a witness [MH].
7 A failure to call a witness [ED].
8 A failure to investigate suggestions that messages sent using Snapchat were sent by the complainant or on her behalf and not genuine in the sense that they emanated from the appellant.
9 A failure to lead evidence relevant to a motive to lie in relation to the issue of consent.
10 A failure to tender certain text messages.
41 The appellant gave evidence before this Court. The Court also had evidence from the prospective witnesses in affidavit form.
42 Trial counsel gave evidence too. His evidence, unshaken in cross-examination, was that in relation to the potential witnesses [RG], [JL], [JP], [ED], and [MH] he was not told about them or their evidence. In respect of potential witness [MaH], his judgment was that the evidence was not sufficiently advantageous to the appellant's case to justify losing the right of last address. In relation to the Snapchat evidence, the position was that because the appellant had not denied sending the messages, any enquiry into their authenticity was futile. In relation to the text messages, he decided that because the complainant had agreed that she had sent messages of affection and support to the appellant, there was no utility in using them, and losing the right of last address. In relation to the complainant's alleged motive to lie, some evidence about that was not disclosed to him, some of it was not probative, and the complainant was cross-examined about a possible motivation to lie, in any event. As to that motivation, there was a complication emerging from charges of assault and damage to property which were alleged against the appellant. If care was not taken in cross-examining the complainant, those matters might emerge and cause additional difficulty for the appellant. A review of the transcript reveals that counsel took the matter as far as he could with that consideration in mind.
17 No 14/2021
43 The asserted failure of counsel to prepare for trial is a baseless 'catch-all' complaint which is
not made out.
44 Ultimately it matters not what assessment the appellant's solicitors might make of counsel's
conduct because there "must be an objective inquiry …": Nudd v The Queen [2006] HCA 9, 162 A Crim
R 301 per Gummow and Hayne JJ at [27]. The matters raised against trial counsel involve evidence about which he was not made aware, or otherwise attacks legitimate forensic decisions without demonstrating that the consequence of those choices was that the loss of a significant possibility of an acquittal. In TKJW v The Queen [2002] HCA 46, 212 CLR 124, Gaudron J said at [33]:
"Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that 'when viewed in combination with the evidence given at trial ... the jury would have been likely to entertain a reasonable doubt about the guilt of the accused'." (Mickelberg v The Queen (1989) 167 CLR 259 at 301 per Toohey and Gaudron JJ. See also at 273 per Mason CJ, and 275 per Brennan J).
45 The appellant was convicted because the case against him was supported by other evidence. Indeed it was a very strong case.
46 There has been no miscarriage of justice. The appeal must fail.
18 No 14/2021
File No 1808/2021
B T H v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL MARTIN AJ 10 December 2021 |
| Introduction |
47 On 30 March 2021 the applicant was convicted by a jury of raping his wife on 12 May 2019, Mother's Day. The applicant gave evidence and admitted that sexual intercourse had occurred. The primary issue at trial was one of consent, but honest and reasonable mistake as to consent was raised by the applicant.
48 The amended notice of appeal asserts that a substantial miscarriage of justice has occurred because the applicant was denied the opportunity of an acquittal by reason of the incompetence of his counsel. Numerous particulars of the asserted incompetence are set out in the amended notice of appeal, none of which have been substantiated.
49 I have had the considerable advantage of reading the reasons in draft of Estcourt J. I agree that the appeal should be dismissed and with his Honour's reasons. I wish to add only a few observations.
The Crown case
50 The complainant and the applicant were married on 15 November 2013 and separated in April 2019. A son was born of the relationship in early 2018.
51 The complainant gave evidence that on Mother's Day, 12 May 2019, the applicant contacted her about a message on the home answering machine. He called her a "slut", a "fucking liar", and "whore". On arrival home the applicant accused the complainant of sleeping around and called her a "dirty whore".
52 After the complainant entered the house, via Snapchat she received a photo from the applicant of his erect penis. That photo was accompanied by the message "Cum fuk me". The complainant replied "Find someone else to snap that shit to", and the applicant replied:
"Do as ya fukn told cum stop this anger
Im not gunna stop fuckn ya, ill leave u alone when I move out".
53 Using her iPad, the complainant took a photograph of the Snapchat messages. If she had taken a screenshot, Snapchat would have sent a notification of that fact to the applicant. Photographs of the Snapchat messages were tended in evidence.
54 Later that day the applicant entered the premises and, according to the complainant, using force the applicant had sexual intercourse with her without her consent. The complainant gave evidence that after she cleaned herself up in the bathroom, she told the applicant he was never going to touch her again, to which he replied "Oh that wasn't rape, you should have fought harder".
55 At about 7pm that evening, the complainant sent a text message to a close friend saying "I don't know what the fuck to do, he just forced himself on me". The friend tried to call, but the complainant declined the call and sent her friend a message saying she was outside having a smoke and did not want the applicant to hear her on the phone. After the applicant left the property, the complainant telephoned her friend and told her what had occurred. She gave her friend considerable detail of the immediate
19 No 14/2021
events of the rape. The complainant's friend said that at first she could not understand what the
complainant was saying because she was "extremely hysterical".56 At 7.28pm on the day of the events, the applicant sent another Snapchat message to the complainant containing two Snapchats. One was a screenshot of the applicant's erect penis and the second was a message stating "sorry babe". The complainant took a photograph of the messages with her iPad. Those photographs were tendered on the trial.
57 The applicant admitted during cross-examination that he sent the Snapchat messages to the complainant, but denied they were sent on 12 May 2019. Notwithstanding the wording of one of the messages, the applicant denied ever demanding sex from the complainant. The applicant said he was unable to recall why he had sent a message "sorry babe" and maintained it was not sent on 12 May 2019.
58 The following morning the complainant recorded a telephone conversation with the applicant. The full conversation is set out in the reasons of Estcourt J.
59 At trial, the applicant gave evidence that the intercourse on 12 May 2019 was entirely consensual, and was encouraged by the complainant. As to the telephone conversation the following day, in examination the applicant gave the following evidence:
"You seem to be discussing there what had happened on the 12th of May; is that
correct?........Yes.
And you seem to be discussing rape?........Yes.
Why is that?........ Well –
Why do you think you were discussing rape?........ I was just trying comfort Elise and sort of tell her what she wanted to hear. It was being on and off for some long. There was new accusations every day. This was the first time something like that was said
and it wasn't sleeping with another woman – or cheating. The conversation, when she was on the toilet and I was in the shower, sort of started ringing bells and I – I really
didn't know what was going on. I didn't know I was getting recorded, which was
nothing – that doesn't matter. But I – I don't really know."
60 The applicant was cross-examined about the phone call. He claimed the content had been "completely misinterpreted" and that he was "just trying to sort of comfort her and keep her happy". The applicant's evidence concerning the phone call lacked any credibility whatsoever.
61 The case presented by the Crown was extremely strong. The only reasonable conclusion open on the evidence concerning the phone call itself was that, on the day after Mother's Day, the applicant acknowledged to the complainant that she had not consented to intercourse. This inference is irresistible when the call is considered in conjunction with the Snapchat messages.
Competence of counsel
62 As to the conduct of counsel, there is a conflict between the evidence of the applicant and Mr Stevens as to whether the applicant mentioned witnesses to Mr Stevens other than the applicant's father. I have no hesitation in preferring the evidence of Mr Stevens to that of the applicant. Mr Stevens made comprehensive notes. He was fully aware that the issue of whether the complainant was acting vindictively, and trying to ruin the applicant, was an important issue in the trial. I have no doubt that if the applicant had mentioned the existence of witnesses who could give evidence that the complainant had threatened to "get" the applicant, Mr Stevens would have followed up that issue and investigated the witnesses. I am satisfied that the applicant did not mention the existence of any witnesses in that regard.
20 No 14/2021
63 As to other issues such as the ongoing relationship, during cross-examination of the complainant she admitted the ongoing relationship and exchanges between her and the applicant. The proposed evidence added little to those admissions. In addition, as to the text messages, there were a number of statements in the text messages which would have been viewed by a jury in a light adverse to the applicant. There was a real danger that the jury would view some of the messages as supporting the evidence of the complainant that she had been raped by the applicant.
64 As mentioned, the Crown relied upon the Snapchat messages as providing significant support for the evidence of the complainant. To his counsel, and in evidence, the applicant admitted sending the Snapchat messages, but claimed they were sent on a different date. However, the grounds of appeal concerning the Snapchat messages were based upon a case that the applicant denied sending the Snapchat messages, and counsel was incompetent in not seeking an adjournment of the trial in order to obtain expert evidence supporting a case for fabrication. Further, the grounds allege that counsel was incompetent in failing to appropriately cross-examine the complainant about the possibility that the messages were fabricated by her, and in failing to submit to the jury that there was a possibility the messages were fabricated.
65 In support of this aspect of counsel's conduct, the applicant swore an affidavit in the appeal proceedings plainly stating that, with the exception of the screenshot of his penis, which he described as an old image he had sent to multiple people approximately six months prior to Mother's Day, he denied sending the messages shown in the screenshots. The affidavit continued that counsel had not advised the applicant he could engage a digital forensic expert to provide an opinion as to whether there were issues with the collection of the evidence and "the possibility of fabrication". In addition, in the appeal proceedings a report from an expert was filed which dealt with the possibility of fabrication of the Snapchat messages.
66 During his evidence on appeal, the applicant was faced with the conflict between his evidence at trial in which he admitted sending the Snapchat messages, and his affidavit in which he denied sending any of the messages other than the one containing the picture of his penis. The applicant claimed there had been a misunderstanding between him and his legal advisers on the appeal. Perhaps this issue can never satisfactorily be resolved, but it fatally undermined the applicant's case that counsel had been incompetent, and a miscarriage of justice had occurred because counsel had not sought an adjournment to obtain expert evidence as to the possibility of fabrication. Bearing in mind the applicant's instructions to his counsel and his evidence that he sent the Snapchat messages, but on a different day, no issue of incompetence arises.
67 As to the complaint that counsel failed to question the applicant as to whether any witnesses could support the applicant's case that the complainant was acting vindictively, in my view such a failure is not demonstrative of incompetence. It was the applicant's case that the complainant discovered on 14 July 2019 that the applicant had continued to maintain contact with another woman. Two days later the complainant spoke to police. The motive for making a false complaint was said to be the discovery on 14 July 2019 that the applicant was still in contact with another woman. The fact of a complaint being made after discovering the applicant was in contact with another woman was admitted by the complainant who said that after she became aware of that fact, she sent a message to the applicant:
"Don't u ever call me, text me. Don't come anywhere near me. You have her and leave
me the hell alone".
68 In addition, in the background as a complicating factor for counsel, was an awareness that if pressed the complainant might give evidence of an incident on 14 July 2019 when, according to the complainant, the applicant assaulted her and damaged her property. The Crown had been generous to the applicant in not leading such evidence, which was obviously admissible, and counsel for the applicant endeavoured to skirt around that issue in order to avoid giving counsel for the Crown the opportunity to re-examine the complainant and open up such evidence.
21 No 14/2021
69 Ultimately the question for this Court is whether there has been a miscarriage of justice. In my view the applicant has failed to establish the existence of such a miscarriage and the appeal should be dismissed.
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