Jagd v Tasmania
[2021] TASCCA 16
•10 March 2021
[2021] TASCCA 16
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | JAGD v Tasmania [2021] TASCCA 16 |
| PARTIES: | D, JAG |
| v | |
| STATE OF TASMANIA | |
| FILE NO: | CCA 3115/2019 |
| DELIVERED ON: | 10 March 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 26 November 2020 |
| JUDGMENT OF: | Estcourt J, Pearce J, Porter AJ |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Particular grounds of appeal – Conduct of defence counsel – Appellant found guilty of rape – Defence case one of consensual sexual intercourse – Where appellant and complainant previously known to each other – Where evidence of complainant's prior sexual interest in the appellant – Where communications between complainant and appellant after the incident arguably inconsistent with non-consensual sexual intercourse – Failure of defence counsel to properly pursue communications issue in cross-examination and in closing address – Failure to ascertain and utilise relevant evidence – Miscarriage of justice – Order for retrial.
TKWJ v The Queen [2002] HCA 46, 212 CLR 124; Nudd v The Queen [2006] HCA 9, 80 ALJR 614; R v Birks
(1990) 19 NSWLR 677, applied.
Aust Dig Criminal Law [3515]
REPRESENTATION:
Counsel:
Applicant: C Gunson SC, A Kendall Respondent: D G Coates SC
Solicitors:
Applicant: Phillips Taglieri Respondent: Director of Public Prosecutions
| Judgment Number: | [2021] TASCCA 16 |
| Number of paragraphs: | 114 |
Serial No 16/2021
File No CCA 3115/2019
JAGD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL ESTCOURT J PEARCE J PORTER AJ 10 March 2021 |
| Orders of the Court: |
1 Leave to appeal granted; appeal allowed.
2 Conviction quashed; sentencing orders set aside.
3 Applicant to be retried.
Serial No 16/2021
File No CCA 3115/2019
JAGD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL ESTCOURT J 10 March 2021 |
| The appeal |
1 The applicant sought leave to appeal against his conviction on 22 November 2019, following a
jury verdict of guilty upon his trial for the crime of rape.
2 Both the applicant and the respondent sought to read affidavits on the hearing of the appeal. With one exception where the evidence was regarded by the Court as irrelevant, the affidavits of both parties were received de bene esse. For my part I do not need to have recourse to any of the evidence so received.
3 The grounds of the applicant's appeal are that there was a miscarriage of justice arising as a
result of the conduct of his trial.
4 Absent the particulars set out in it, the amended notice of appeal reads as follows:
"2 There was a miscarriage of justice in that the Applicant was deprived of a fair trial
because of:
(a) the incompetence of his counsel;
(b) the misconduct of the prosecutor at the trial; and/or
(c) the failure of the learned trial judge to discharge the jury in circumstances in which the prosecutor had:
(i) disclosed to counsel for the Applicant a large report of an extraction of the Applicant's telephone on or about 19 November 2019; (ii) improperly cross-examined the Applicant about alleged drug use and that he had a relationship with the girlfriend (not being the complainant) of a friend of his."
5 On 26 November 2020 the Court upheld the appeal and ordered a retrial. These are my reasons for joining in the orders of the Court.
Incompetence of counsel
6 To my mind the most compelling assertion made on behalf of the applicant is that his barrister, at trial, failed to cross-examine the complainant, and failed to seek to address the jury in closing, as to a text message about which the applicant gave unchallenged evidence.
7 The text message was said to have been sent by the complainant to the applicant, later in the same day as the alleged rape. It made no complaint of impropriety but rather, inquired about the extent of the damage to the applicant's van, in which the rape was said to have occurred, and which had been involved in a minor accident only shortly before the act of sexual intercourse. The applicant's case was that sexual intercourse was initiated by the complainant and was consensual.
The principles relevant to a ground of appeal alleging incompetence on the part of counsel were
summarised by Gleeson CJ, with whose reasons McInerney J agreed, in R v Birks (1990) 19 NSWLR
677 at 685, as follows:2 No 16/2021
"1 A Court of Criminal Appeal has a power and duty to intervene in a case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2 As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3 However, there may arise cases where something has occurred in the running of a trial, perhaps as a result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible and undesirable to attempt to define such cases with precision. When they arise they will attract appellate intervention."
The complainant's evidence
9 The complainant gave evidence that the applicant was driving her home in his work van, from his house, where she ended up after a night out drinking. She said that about two to three minutes from their leaving, the applicant leant in for a kiss and that as he did so, she pulled away, and he hit the guard rail on a bridge that they were crossing.
10 She said that he continued to drive to the other side of the bridge and he pulled over at the end of it and stopped the engine. She thought that he was going to check the damage because it was a work vehicle. Instead he tried to kiss her again. She said that she pulled away and asked him what he was doing and said that she was "with his brother". She said that the applicant "jumped the seat" and was "standing in front of [her] in the passenger side of the vehicle".
11 The complainant gave evidence that the applicant said to her that his brother had cheated on her several times, and that he said "what difference does it make", and that she "would have had sex with [P] anyway". ([P] was one of the men in the social group that evening and who was at the house from which the applicant and the complainant had just left.)
12 She said that the applicant then started to unbuckle his pants, and said that "he knew [she] wanted it". She was wearing a black top and a brown suede skirt and underpants. She said that after he unbuckled his pants, he pulled her legs from the seat and put them either side of him. One was hard against the door and the other against the inner console. She said that she told him to stop and that she "didn't want it". She said that he had his hands on the top of the seat and that she tried to move but his body was up against hers and she could not move her legs. She said that she could feel his penis was hard and that he pulled her skirt up a "little bit". He pulled her underpants to the side and put his penis inside her vagina. Once his penis was inside her vagina she told him to stop, that she could not do it and that she was with his brother.
13 The complainant said that he continued for a little bit, and that she managed to struggle, and asked him "for it to come out". When his penis came out of her vagina he put his hands around her neck and he asked her "just to let him finish". He put his penis back inside her vagina and continued. She again told him to stop and was trying to struggle but she could not move. She said that he went on for five or so minutes and that "when he finished he pulled out" and ejaculated in his hand and then he found a cloth from the van and cleaned himself up. The complainant said that the applicant told her that what happened had to stay between them and that his brother could not know. She said that he then took her home.
3 No 16/2021
The complaint evidence
14 The complainant said that she did not tell anyone what had happened on the day of the alleged rape but the following day she told a work colleague to whom she was very close. Her colleague was [M] and the complaint unfolded to [M] in a series of text messages. They are, in the main, set out in the following passage from the transcript of the trial as follows:
"MS PRENC: (Resuming). So, just to ensure that we all understand this. So, these are
the messages you sent to [M] on or – the message exchange between the two of you on
Monday?........Yes.
The 30th of July. At that time, Monday 30th of July, you didn't want [J] to see any of
these messages about what happened, so you had deleted them?........Yes.
When you spoke to police, you told them that?........Yes.Um, and you then offered to have [M] send them back to you, so that you could provide
them to police and that's what you did?........that's correct…
So, the first message on the page with a 1 up in the top right hand side, the first message relevant to this matter is:
What you get up to over the weekend?
Is that right?........Yes.
And, is that a message you sent to [M] or that [M] sent to you?........The top in the white,
is me.All right. So - ?........[M] is asking me how my weekend was.
All right - ?........She's in blue….
MS PRENC: (Resuming) So the message that says:
Had a 21st on Saturday night.
That's your message back to [M]?........Yes. clarify that a little bit on page 2, is that right?........Yes.
All right and again, when we say – or when – when your evidence was that you told
[M] a bit about what happened, that's your messages on page 2, which are highlighted
with the lighter, white background, is that right?........Yes.
Thank you. If you can turn to page 5 please? There's a message you send there:Have another birthday this weekend. Casual though. I doubt I'll drink had my quota for the year.
Is – is that essentially in response to what you've told us in your evidence, that you'd
had quite a lot to drink on this particular night in question?........Yep. to you that you need to have him charged, and you reply"
It's [J's] brother. I can't ruin a family.
What did you mean by that?........ - family (indistinct) or any other issues that were going on, or which impacted the children, and more importantly the dad at the time, and of course it's [J's] brother. I didn't know how to tell him what had happened.
The final page, page 7, you tell [M]:
I just want to forget it ever happened, but being home I have all the time in the world
to think about it. It's so messed up."
15 In evidence as exhibit P1 were screenshots of other messages from the complainant to [M], which do not appear to have been elucidated in the complainant's evidence-in-chief. They included
"[The applicant] took me back to [J's] and he wouldn't take no for an answer"; "… he wouldn't take no.
I was pinned down. I couldn't move." "I didn't want it. I asked him to stop it before it even started but
4 No 16/2021
he wouldn't." and "He just kept saying '[J] would've cheated on you several times' and 'you would have
just fucked [P] anyway' – Nothing I said or tried to do made a difference." She also messaged that she
had not told anyone, that she was struggling and that she could not deal with work at that time.
16 The complainant gave evidence that she told J what had happened two days later. The following passage from the transcript is recounted in full as it includes the only suggestion in the whole of the evidence that the asserted text message from the complainant on the Sunday, asking as to condition of the van, might not have been sent by her. It reads as follows:
"MS PRENC: Alright, and perhaps I should split it up even further. (Resuming) – So
between 29 July, when he's dropped you home, and between you telling your partner then, [J], had you had any phone calls between yourself and [the applicant], between that period?........No.
In terms of text messages, were there any text messages between that period?........Yes.
Alright, do you recall when you got text messages?........I sent the first text to [the applicant]. I told him, 'I just told [J] what had happened,' and he obviously knew that so I did receive a phone call, but I didn't answer.
I'll just stop you there, so that is after you're telling [J]?........Yes.
So nothing in between 29 July and you telling [J]?........No.
The first thing that happens is you tell [J]. You then receive – sorry, you then receive –
sorry, you then send a text message to [the applicant] in telling that you've told
[J]?........No, I told [J] and [J] had called [the applicant]. So [the applicant] knew that
he had known by that stage, and I received a phone call that I didn't answer, from [the
applicant]. A few hours after that I had sent [the applicant] a text basically that he,
'Ruined the best thing in my life, and not to contact me again.'
If the witness could be shown this document please, and there's a copy for his Honour.
Do you recognise that document, [the complainant]?........Yes.
Is that a document that you also provided to police which shows the missed phone call
from [the applicant], and the messaged exchanged between the two of you?........Yes.Thank you, and your memory is that that was on the 31st of July I think you
said?........Yes…
Thank you. So, at the very top of the page, that is the missed call that you receive from
[the applicant]?........Yes.
You then send him a message, so the blue – the dark blue message boundary is you
sending the message saying:
You ruined the best thing I ever had don't contact me again.
Yes. from [the applicant]:
I actually can't remember doing anything. I never had sex with you. You need to tell
[J].
Yes." [Emphasis added.]
The applicant's evidence
17 The applicant gave evidence that on leaving the house with the complainant, he got into the driver's seat and put his seat belt on. He reversed down the driveway and started to head to [J's] house. He said that as he was coming onto the bridge he saw the complainant moving in the corner of his eye. He said that she crawled over onto the centre cup holder and put one hand on his leg and her other hand around his neck. He said that he was not expecting that and he took his eyes off the road and clipped the side of the bridge.
5 No 16/2021
18 The applicant's evidence was that he told the complainant "no" but he said that immediately after the bridge he pulled over and the complainant still had her hand on his leg and was trying to pull his face in to kiss her. He said he told her "[w]e can't do this [complainant]" and that she replied that she wanted to get back at [J] because he was not showing her enough affection. The applicant said that he again said "no". He said that she just pulled his face in to kiss her and he "ended up giving in to her".
19 The applicant gave evidence that the complainant said that she should have chosen him over [J]. He said that he took his seatbelt off and began to move over to the passenger seat with her. He said that he was in the foot well, and they were facing each other. He said that the complainant undid the button and zip of his pants and pulled them down, that he pulled her underpants down to one leg and they began kissing again. He said that his penis entered her vagina and he had consensual sex with her
20 The applicant said that he withdrew his penis and ejaculated in his hand and that he cleaned himself and dressed again and drove the complainant the remaining 800 metres to her home. He said that on the way, the complainant said "it had to stay between [them]" and that he agreed.
21 There then followed this passage of his evidence in chief.
"Did you hear from, or have any contact with, [the complainant] again that
day?……Had a message asking how the van was going.
Did you reply?……No, I did not.
What did you do with that message?……I deleted it straight away.
Why did you do that?……Because – well, [J] does a fair bit of work for me so we're
always showing each other's phone and stuff and I didn't want him to see it." (Emphasis
added.)
22 That was the only reference to that text message in the whole of the trial. That evidence was not objected to on the basis that it had not been put to the complainant by the applicant's counsel in cross-examination of her and it was not, in turn, cross-examined upon by counsel for the State.
The tendency evidence
BW
23 The tendency evidence comprised evidence from the applicant and from BW and PO as to two events. The first was at Willy Smith's Apple Shed on July 14 2018 and the second on the way to, and at, BW's and the applicant's house, to where, as already noted, the social group returned after their night out drinking on July 28 that year. Allied to this evidence are the circumstances of the complainant's taxi journey home with BW that evening and some aspects of the text messages contained in exhibit P1.
24 As to the evening of July 14 the applicant gave evidence that he was at a festival known as the Mid-Winter Feast and that BW and PO and J arrived later. He said that during the evening he received some telephone calls from the telephone number he had saved in his telephone as the complainant's. He said that there were about six of them and a text message. He did not reply. He said that sometime later into the evening he saw the complainant in the apple shed. He was with his sister and her boyfriend. He said that he was seated and that "she just started just putting her arse against my arm and stuff like that and yeah".
25 As to the taxi ride home with BW on July 28, he (BW), gave evidence that he and the complainant had caught a taxi together from Salamanca Place to the house where he and PO and the applicant lived, and at about the time the taxi had reached Mount Nelson he fell asleep. He said that the complainant woke him up to say that they had arrived but they had not, because they were effectively at the bottom of the paddock up to the house where the complainant and J lived.
6 No 16/2021
26 BW paid for the taxi and told the complainant that he would walk her home. She said, "[n]o, I'll come back with you", and when he agreed, she tried to kiss him and started rubbing his leg. He said, "no" and then she tried to get him to give her a piggy back, whereupon she fell off and skinned her knee and her elbow.
27 He gave evidence that when the pair reached his house, he again offered to take the complainant home but she again said, "no". He opened up the applicant's made up bedroom for her and said she could sleep in there because the applicant was not there at the time. She said that she was going in there so BW proceeded to his room, undressed and went to bed. When he was awoken to PO arriving home and jumping on him, the complainant was in his bed, uninvited, about "30 millimetres [sic] from him".
28 In cross-examination, BW confirmed that to walk from where the taxi stopped to the complainant's home would have been shorter than to walk to his house. He also said that while they were walking and after she was trying to kiss him and grab him, she mentioned "a couple of things about getting revenge on J but can't recall it enough to bring it up really".
| PO | |
| 29 | PO gave evidence that when he and the applicant arrived at BW's and the applicant's house they saw BW and the complainant in BW's bed laying "about a ruler length apart in the bed". He said that he and the applicant went out to the lounge room. |
| 30 | He said that about 10 or 15 minutes later the complainant came into the lounge room. He said that he was pretty intoxicated and was sitting on the couch going in and out of sleep. He said that she and the applicant put him to bed. He said that "she took me to [the applicant's] bedroom and just took |
| my shirt off and put me in a bed … sat on the bed for a bit and just sort of put her hand on my leg and …". He did not know when she left. | |
| 31 | In cross-examination PO said that he did not remember the complainant trying to get into bed with him and did not remember the applicant coming in and saying, "[n]o, [complainant], I'll take you home" He did however remember the applicant "grabbing her". |
32 As to the events at BW's and his house that night, the applicant gave the following evidence:
"And then did something else happen?……Yeah, well [PO] must have been falling
asleep or something and [the complainant] decided to walk him into my room.
Did you notice what [PO] was doing?……Yeah, he was like nodding off a little bit but
–All right. Now, you say that [complainant] decided to take him to your room; did she say anything?……She said, 'I'll take you to the bed, [PO].' And was [PO] still sitting down when she said that?……Yeah.
How did he get up?……He ended up getting up himself.Right. And he made his way to your bedroom?……Yeah.
How did he do that?……He walked towards the bedroom and [complainant] justfollowed him in. Right. Did you decide to do anything when you saw that happening?……I walked in after them. How long after?……10 seconds, 15 seconds. What did you see when you arrived in there?……[PO] was getting into bed – [PO] was already in the bed and [complainant] was – she was getting into bed with him.
What did you say or do when you saw that?……I said, 'No, [complainant], I'll take youhome.' 7 No 16/2021
Did she say anything?……Yeah, she agreed. She said, 'Okay then.'"
The complainant
33 As to that tendency evidence, the complainant denied that she had rubbed her buttocks on the applicant on 28 July 2018 at Willy Smith's; denied that she touched BW on the walk back from the taxi to his house; denied that she asked him for a piggy back; denied that she went into his bed uninvited, saying that she walked into the bedroom that he guided her to first, and denied that she tried to get into bed with PO, saying, "I pulled the covers back onto [PO], [the applicant] came in and grabbed my hand and said that he'd take my home and pulled me out of the room."
34 As to the messages to [M] in P1 the following are relevant:
"There's bits and pieces I don't remember like how I got in a taxi, how I ended up at [J's] cousin place, how I must have fallen over because I had fucked knee and elbow."
"I do remember [J's] cousin, who was in the taxi with … made a pass at me."
| Discussion |
35 The trial was word on word, with some evidence of complaint to corroborate the complainant's version, and with some tendency evidence to corroborate the applicant's version. The jury had the advantage of seeing and hearing both the complainant and the applicant and would, absent objective features that might be said to have compelled a doubt in the mind of a reasonable jury, have been entitled to accept the complainant's version if they were satisfied beyond reasonable doubt as to the substance of her evidence as to lack of consent.
36 The tendency evidence of the complainant rubbing her buttocks on the applicant at Willy Smiths on July 14 and the tendency evidence of the complainant being in BW's bed and taking PO into another bedroom, even if the jury accepted the presence of a sexual connotation, would not have compelled a reasonable doubt because the jury could have reasoned that such a tendency did not mean that she wished to actually have sexual intercourse with either man. Even if the jury was satisfied that she did have that state of mind, that would not of necessity have required a finding that the complainant wished to have sexual intercourse with the applicant in particular. He was her partner's brother.
37 It might be argued that the configuration of the interior of the van and the fact that the applicant was wearing a seat belt and the complainant was not, rendered the applicant's version of the complainant leaning in to kiss him, more probable than the complainant's opposite account. The applicant's evidence was that as he was coming onto the bridge he saw the complainant moving in the corner of his eye and that she crawled over onto the centre cup holder and put one hand on his leg and put her other hand around his neck. He said that he took his eyes off the road and clipped the side of the bridge. However, the jury would have been entitled to find that it was the applicant's attempt to kiss the complainant, whilst he was wearing his seatbelt that caused him to take his eyes off the road or swerve.
38 It might be argued that the complainant's account of the applicant forcing himself on her, and taking his trousers and underpants down, while moving her underpants to one side, all effectively from the foot well of the van, was inherently improbable in the case of non-consensual sexual intercourse, and/or that the complainant could have exited through the unlocked passenger door of the van while the applicant was taking his seat belt off moving over the cup holders. That may be so. However the jury was entitled to accept the complainant's account that the applicant "jumped the seat", that there was not much room in front of the seat, that he was a lot stronger than she was and that he pulled her legs apart and pressed one up against the door and the other against the inside console, so that she could not move.
39 In this case, any doubt that one might have as to the applicant's guilt is capable of being explained simply by the manner in which the evidence of the complainant and the evidence of the
8 No 16/2021
applicant was given by each of them, and the respective impressions they made on the jury. Upon the whole of the evidence, presented as it was, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
40 It is for that reason, no doubt, that the original ground of appeal which asserted that the verdict of guilty was unsafe, was abandoned in the amended notice of appeal.
41 That leaves the question of whether there has been a miscarriage of justice occasioned by the applicant's counsel's failure to cross-examine the complainant, and his failure to seek to address the jury in closing as to the text message said to be sent by the complainant to the applicant on the day of the alleged rape, inquiring about the extent of the damage to the applicant's van.
42 As has been noted already, as a general rule an accused person is bound by the way the trial is conducted by counsel, and it is not a ground for setting aside a conviction that decisions made, or not made, by counsel were negligent. However, flagrant incompetence of counsel may be recognised as involving, or causing, a miscarriage of justice. Sadly, to my mind, that is the case here.
43 In many cases such failings may not have such consequences. The decision of the applicant's counsel not to cross-examine the complainant about the text message may have been a tactical decision made on the basis that she was unlikely to agree to it. That is unlikely however, as it would have been improper for counsel, deliberately, not to have put the question to the complainant if he intended to lead it from the applicant in evidence-in-chief. And there was an obvious risk that if when he did lead it, and counsel for the State objected that it had not been put to the complainant, the evidence may have been excluded as unfair.
44 To my mind it is much more likely that the very considerable probative value of the message was not at the forefront of counsel's mind. This is particularly so when (even if he had simply overlooked cross-examining the complainant on it), the fact is that his client gave unchallenged evidence as to it and it was raised by the applicant in his recorded interview with police which was played in court. Those things should have reminded him to seek to tax the jury on the issue in his closing address. To my mind it is impossible to conceive that not to do so was a tactical decision by counsel.
45 In my view, given the lack of objection from counsel for the State when the evidence was led from the applicant, and her failure to challenge the applicant as to it, the applicant's counsel would not have been prevented from addressing on it because he had not put it to the complainant. Had he been, his incompetence in failing to cross-examine the complainant as to the message, and his failure to have the applicant elucidate or expand on its context and content, would have been no less.
46 Those failures by the applicant's counsel, were, as I apprehend them, egregious errors, because the evidence on the trial was so finely balanced as I have pointed out above. Had it been pointed out to the jury that the unchallenged evidence was that on the same day as the alleged rape, the complainant had messaged the applicant "asking how the van was going", and that such a message was wholly inconsistent with the complainant having been raped by the applicant a short time earlier in that same van, it may well have tipped the balance in favour of acceptance of the applicant's version of events.
47 At the very least it was capable of creating a reasonable doubt in the minds of the jury, as to the issue of consent. It was a vital piece of evidence and it was simply not drawn to the jury's attention by any means. Given that it was elicited from the applicant in evidence-in-chief without any elucidation, and occupied only four lines of the transcript, it may have escaped the attention of some, if not all, of the members of the jury, altogether.
48 I am of the view that these failures on the part of the applicant's counsel at trial have given rise to a substantial miscarriage of justice in that they deprived the applicant of a chance of acquittal that was fairly open.
9 No 16/2021
49 I do not find it necessary to consider any of the numerous other arguments advanced in support of the amended notice of appeal. Some of those arguments have merit, but without the particular acts of negligence on the part of the applicant's counsel which I have identified, they would not in my view, either individually or collectively, amount to a substantial miscarriage of justice. The negligence I have identified does so, on its own and without more.
Disposition
50 For the foregoing reasons I joined in the orders of the Court granting leave to appeal, allowing the appeal and ordering a retrial.
10 No 16/2021
File No CCA 3115/2019
JAGD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL PEARCE J 10 March 2021 |
51 To my mind, it is unfortunate that some authorities, and the argument in this appeal, are expressed in terms of the incompetence of counsel. Sometimes the most competent counsel may overlook, or fail to appreciate, the significance of an aspect of the evidence such that a miscarriage of justice may result. For my part, I would not have concluded that the manner in which trial counsel in this case addressed, or failed to address, the evidence of the Facebook message was, without more, sufficient grounds to set aside the conviction. As was explained by McHugh J in TKJW v The Queen [2002] HCA 46, 212 CLR 124 at [79], as a general rule counsel's decisions bind the client, even if decisions were made without or contrary to instructions, or involve errors of judgment, or even negligence. However, I am satisfied that the combination of matters described by Porter AJ in his Honour's reasons resulted in a miscarriage of justice, and that the orders made by the Court at the conclusion of the hearing were proper.
11 No 16/2021
File No CCA 3115/2019
JAGD v STATE OF TASMANIA
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL PORTER AJ 10 March 2021 |
| Introduction |
52 These proceedings are made up of an application for leave to appeal and the appeal relating to a conviction for the crime of rape, "conviction" being used in the sense of a finding of guilt by a jury. The indictment alleged an act of vaginal sexual intercourse with a named female, on or about 29 July 2018. After a trial before Brett J, the applicant was found guilty by a unanimous verdict on 22 November 2019, and was sentenced to a term of imprisonment.
53 At the conclusion of the hearing before this Court, I joined in making orders allowing the appeal and ordering a retrial. These are my reasons for doing so.
54 The evidence showed that an admitted act of sexual intercourse took place between the complainant and the applicant in the early hours of Sunday, 29 July 2018. The case against the applicant was a "word against word" one. The Crown case was essentially made up of the complainant's evidence, evidence of recent complaint and a video-recorded police interview of the applicant in which he admitted an act of vaginal sexual intercourse but claimed it was consensual. The applicant gave evidence.
55 The complainant's evidence, the recent complaint evidence and the applicant's evidence are summarised in the reasons for judgment of Estcourt J, which I have had the advantage of reading. I do not need to repeat any of that, but will later refer to some aspects of the evidence. His Honour has also summarised what was, and is, described as "tendency evidence". Again, I am content to respectfully adopt his Honour's summary, and will also later refer to that in part. For present purposes a short chronology relating to the incident itself will suffice.
56 On the evening of Saturday, 28 July 2018, the complainant went to a birthday party in a venue in Hobart. The applicant and some members of his family were there. In the early hours of the next morning, Sunday, 29 July 2018, the complainant took a taxi with BW, the applicant's cousin, to his home. She says she was heavily intoxicated and slept most of the way. When they arrived she got into bed with BW; she says she recalls being under the cover with BW on top of the cover. At about 7am she was awoken by the applicant and another man, PO. After spending a short amount of time in the lounge area she helped PO into bed. The applicant came into the room, and said he would take her home. She was sober by that stage.
57 The applicant piggybacked the complainant to his work van and started to drive her home. About two minutes into the journey the vehicle hit a guard rail. There was a dispute between the applicant and the complainant about the cause, each blaming the other for attempting a kiss which caused the erratic driving. The applicant stopped the van and sexual intercourse happened at that time. On the evening of Monday, 30 July 2018, the complainant told a friend of hers, in a series of text messages, that she had been raped. The complainant was then the partner of the applicant's brother.
The notice of appeal
58 As amended, the notice of appeal asserts there was a miscarriage of justice because of the incompetence of the applicant's counsel, the misconduct of the prosecutor, and the failure of the trial judge to discharge the jury where the prosecutor had disclosed to the applicant's counsel "a large report of an extraction of the" applicant's telephone on or about 19 November 2019, and improperly cross-
12 No 16/2021
examined the applicant about alleged drug use and a relationship with the girlfriend of a friend of his. The notice contains twelve particulars of the alleged incompetence of counsel, six of which relate to communications between the applicant and the complainant after the alleged rape. There are six particulars of alleged prosecutorial misconduct.
59 In support of these proceedings counsel for the applicant sought to read a number of affidavits.
They included one from the applicant, one from LY – the applicant's friend and fellow employee – and one from AD – the applicant's aunt. Much of the affidavit material sought to be read related to the
alleged incompetence of counsel and concerned the legal and regulatory framework in which counsel was operating, and why certain things could not or may not have been done. For reasons I will later explain, that "framework" material was irrelevant. One affidavit was not admitted in its entirety. The balance of the affidavit material was taken de bene esse. The respondent relied on an affidavit of the applicant's trial counsel, to whom I will refer as A, with small parts excised by agreement.
60 It is the issue of the post-29 July 2018 communications between the applicant and the complainant that, in large part but not exclusively, influenced me to decide the application should succeed and the appeal allowed. One component of the communications issue is the Facebook message from the complainant to the applicant later in the day of the admitted intercourse. According to the evidence led from the applicant during the trial, the message was in terms of "How is the van going?", (the van message). That was an apparent reference to the accident that happened shortly before the act of intercourse.
61 The treatment of the Facebook message in the trial is dealt with in Estcourt J's reasons, and in his Honour's view was solely determinative of these proceedings. In my respectful view, the Facebook message is but part of a wider issue of a number of communications between the complainant and the applicant before and after the relevant events.
62 The other matters that influenced my decision are some evidence corroborative of the applicant's evidence which was reasonably available and not called. There is also one point about the prosecutor's conduct that causes me concern, although on its own it would not have caused a miscarriage of justice.
Incompetence of counsel – the principles to be applied
63 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.
64 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 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
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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]. 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]. [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.
65 In the present case, it is because the focus is on what was done, or not done – not why – that
much of the affidavit material was inadmissible. Some of the material is relevant in that it explained what evidence was available or might reasonably have come to A's attention. I will come to that in due course.
The communications between the complainant and the applicant
66 As Estcourt J has explained, in the trial the applicant relied on tendency evidence. Included in that category was evidence of the complainant's sexual interest in the applicant, displayed about 14 days before the alleged crime.[3] The evidence was that on 14 July 2018 the applicant was at a public event at with a group of people including the complainant and her partner, J, along with BW and PO, a friend of the applicant. When interviewed by police on 6 August 2018, the applicant said that the complainant tried to ring him and inferred she sent a message in the following terms: "At the main apple shed. Where are you? Call me ASAP." He went on to say that she found him inside "and that's when she was like rubbing up against me and stuff like that".
[3] Whether or not that evidence of one incident is correctly described as tendency evidence, or whether it is relevant and admissible on another basis, does not need to be considered. The trial judge said that it "probably" was tendency evidence, and he described it that way when summing-up to the jury.
67 In the trial, the complainant was cross-examined about this. Counsel put to her that she approached the applicant and while he was sitting, she sat on his lap and rubbed her buttocks on his groin. The complainant denied the suggestion. In the applicant's evidence-in-chief, he said that he had received about six phone calls from the complainant and a message. That message was the one that he "read out" in the interview. He said that at the function she walked over "and she just started putting her arse against my arm and stuff like that and yeah". He agreed that this was the rubbing that he had described to police. He said he got up and went away.
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The "Apple Shed" text message
68 In cross-examination of the complainant, counsel for the applicant put the fact of the text message but not its content. The complainant denied phoning or messaging the applicant, saying that PO and BW were using her phone; she believed that some phone calls were made and the one text message sent. Both PO and BW were called by the Crown. Both were cross-examined by Crown counsel pursuant to leave granted under s 38. When cross-examined by counsel for the applicant, both denied using the complainant's phone.
The Facebook van message – 30 July 2018
69 This is the message that Estcourt J has discussed in some detail. In the applicant's police interview he described what he said had happened in relation to the act of sexual intercourse. It was put that he had then driven her back to her house, to which the applicant responded "But like she was fine the next day and stuff like that, like talking to me and stuff." When asked about what happened the following day, the applicant said the complainant sent a message "and just asked if the van was okay and stuff like that". He was asked if he had the message; he said he had deleted it as he did not want J to find out about it as J was his brother.
70 In the complainant's evidence-in-chief, she said that there was nothing in terms of calls or messages between her and the applicant between 29 July 2018 and when she told J on 31 July about what had happened. In cross-examination, A did not put to the complainant the fact of this message.
71 In the applicant's evidence-in-chief, he said he had a message from the complainant that day asking how the van was going. He said he did not reply and deleted the message straight away. He did so because J and he do a fair bit of work together and they were always showing their phones to each other. (Neither in the interview nor in evidence did the applicant say at what time the message was sent.) The applicant was not cross-examined about his assertion of this message. Counsel for the applicant did not mention the message to the jury at all.
The request to be a Facebook friend
72 Unchallenged evidence before this Court establishes that in Facebook on the applicant's phone,
there is the following:
"[Complainant's name]. [J] from your phone contacts is also on Messenger. You added
[J] on 8 August 2018."
The applicant's affidavit evidence is that he did not "de-friend" the complainant on Facebook, which means that she must have de-friended or blocked him in order for him to be added as a friend on 8 August 2018. He said he did not send her a Facebook friend request at any time after 29 July 2018; therefore, she must have sent him a friend request which he has accepted.
73 The evidence shows that a screen shot of this message, together with a screen shot of the next message that I will deal with, were sent by the applicant's mother to A on 19 September 2018. A did not cross-examine the complainant about her adding the applicant as a friend. Nor was any evidence led from the applicant about this.
The Facebook message of 17 September 2018
74 The screen shot message is in the following terms:
"I am aware of your bail conditions but we need to talk."
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The complainant was cross-examined about this. She agreed she sent the message. She said she did not get a reply. When asked whether she had then tried to call the applicant, she said, "Not that I recall, no". The applicant gave evidence that he had received the message in those terms but did not reply to it. This message was not referred to by A in the closing address.
The attempt to call the applicant on 22 September 2018
75 The evidence before this Court is that on the applicant's phone there was a message in Facebook Messenger that the applicant had a missed call: "You missed a call from [the complainant]. Call Back." The applicant says he gave A a copy of the screen shot of this, but does not remember when. A copy of it was located in A's file provided to the applicant's present solicitors. The question asked of the complainant "Did you then try to call him" to which I have just referred, seems to be a reference to this missed call. Having received the answer set out, A did not put to the complainant the screen shot which he had in his possession. The applicant was not asked about this missed call in his evidence-in-chief and nothing was mentioned of the matter in closing.
The van message – additional evidence
76 In his affidavit in these proceedings, the applicant explains the timing of meetings with A for the purpose of taking instructions. The applicant says that he met A on 28 August 2018. The inference is that the meeting was relatively brief. After taking short instructions, A said that the applicant should not say anything further until he had received disclosure from police prosecution.
77 On 17 October 2018 the applicant pleaded not guilty and was committed for trial, his first appearance being the first week in February 2019. On 30 January 2019 he emailed A and asked whether they needed to meet before the appearance. He was told the appearance was formal and no meeting was needed. On 18 February the applicant sent a text message to A and asked him to call but that did not happen. On 28 August 2019 the applicant was told by A that the trial was due to start on 11 November 2019 and he would be contacted for an appointment closer to the trial date.
78 In stages, the trial date was put back to 19 November with a meeting finally arranged on 12 November 2019. The applicant says that it lasted less than an hour, with A being occupied with a phone call for about 20 minutes of that period. The applicant says his written comprehension skills are poor and he struggles to express himself well; a fact borne out by reading his interview and evidence. He says he wanted to tell A of witnesses whom he thought would support his case.
79 It is clear that he did not give to A any names additional to those referred to in the Crown papers. He says he was able to explain some important things but it was not possible to discuss all matters that he wanted to raise. Significantly, in his affidavit the applicant says the van message included an emoji so that the whole message read "I hope the van is OK ;)". He describes the emoji as a "winky face", conveying something naughty or inappropriate. However, he provides no specific explanation about why he did not tell A about it.
80 Before this Court, the applicant argues that full instructions ought to have been taken by A at a much earlier time, rather than a few days before the trial was due to start. The submission is that there is some evidence that could have been obtained by proper diligence and which would have proved to be of assistance. Although not specifically directed to the potential witness AD, her evidence does fall into that category. Her affidavit is filed in these proceedings and is relied on.
81 AD is the aunt of both the applicant and of J, the complainant's partner at the time. She says that on Tuesday, 31 July 2018, J and the complainant came to her house looking for the applicant. J was angry. She had a discussion with them and then spoke to the applicant when he arrived later in the day. When confronted with the situation, he admitted to having sex with the complainant but denied that it was rape. He said "If I'd actually raped her why would she have sent me this message?" He then showed
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her his mobile phone with the message on it. AD is familiar with Facebook Messenger. She recognised the profile as the complainant's. Her evidence is that the message said "I hope the van is alright." She says there "was also a little emoji at the end. I think it was a winky face".
82 Counsel for the applicant did not address the nature of such evidence or the proper approach to it of an appellate court. Counsel for the respondent argued that the test in relation to the evidence should be as though it were fresh evidence; that is, the evidence must be such that it raises a significant possibility that the jury would have acquitted if the fresh evidence had been before it at the trial.
83 Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered by or made available by the exercise of due diligence. Although great latitude is extended to an accused in determining what evidence, by reasonable diligence, could have been made available, this evidence would not seem to qualify as fresh evidence but would be "new" evidence with the difficulties associated with that characterisation. See R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417 at [63]- [67]; Saunders v The Queen [2004] TASSC 95, 149 A Crim R 174 at [13]-[14]. However, the applicant's point is that the evidence is evidence, the existence of which could have been discovered with reasonable diligence on the part of his lawyer.
84 There is a distinction between putting evidence before an appellate court with a view to securing an acquittal or new trial on the basis of the evidence itself, and proving the availability of relevant evidence to demonstrate, for the purposes of seeking a retrial, that a miscarriage of justice was brought about by professional incompetence. In the latter case, the purpose of the tender is not to impugn the verdict as such, but to show what was available with reasonable diligence and could have been called: R v Koeleman [2000] VSCA 141, 2 VR 20 per Tadgell JA, at [44]-[45,] Callaway and Buchanan JJA agreeing; R v Bikic [2002] NSWCCA 227 per Giles JA at [281], [283], Sully and Levine JJ agreeing.
85 In some cases of alleged incompetence where a re-trial is sought, the distinction might be a fine one. That would depend on the scope of what is alleged. In the present case, this particular assertion of incompetence is but part of a broader complaint. It is linked to a subject matter that the applicant says was not otherwise properly pursued at trial. The evidence can be received and assessed accordingly. It seems to me the Court would only need to be satisfied it is relevant, capable of acceptance by a jury and capable of at least some weight being attributed to it.
86 There is another aspect of the van message which I should mention. Part of the applicant's complaints to this Court is that A failed to apply for an adjournment of the trial in circumstances where immediately before its commencement, the Crown disclosed a download of the applicant's phone which had been taken by police in August 2018. In what the trial judge described as an "abysmal situation", Tasmania Police seem to have had the download on 22 August 2018 but did not provide it to the Office of the Director of Public Prosecutions until very shortly before the trial.
87 On the first day of the trial the jury was empanelled but sent away until the following day. Although the trial judge heard argument about the tendency evidence on that first day, the reason for the delay of the start before the jury seems to have been to enable counsel to examine the records. The point is that in his affidavit, A says that he received the applicant's Facebook entries on the applicant's telephone shortly before the trial started. He says although there were 7,000 entries he only had to check over a relatively short period, and "There was no entry with a message from the complainant saying, 'I hope your van is OK'." A seems also to have overlooked the applicant's instructions that he later deleted the message. It is common ground that the records are not records of Facebook entries but records of telephone calls and of SMS text messages. Messages sent via Facebook Messenger would not have appeared in the record examined by A.
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Discussion
88 The starting point is the alleged behaviour by the complainant at the Apple Shed function. The first communication in the above analysis is related to the suggested sexual interest in the applicant on
the part of the complainant. From the defence perspective – in the context of that sexual interest – taken
as a whole the rest of the communications may suggest an attitude inconsistent with non-consensual sexual intercourse having happened. That presents a broader based theme that was not, as the analysis shows, pursued in the trial.
89 In particular, there is no rational explanation for the failures to put the van message to the complainant, and to address the jury about it. It was a critical part of the defence case. Indeed, counsel for the respondent, although arguing no miscarriage of justice resulted, accepted that the failure to address may well have been an oversight. Further, the failure to put the Facebook "friend request" and to lead evidence about it cannot be rationally explained. It seems a fair inference, as the applicant suggests in his affidavit, that the complainant deleted him as a friend very shortly after the night in question, but then sought to again add him as a friend very shortly after that step.
90 The chronology of events in this period must be borne in mind. The complainant's evidence was that on 31 July 2018 she told her partner, J, about being raped. J spoke to the applicant who denied having had sexual intercourse with the complainant. The applicant then tried to call the complainant, as a result of which she sent the applicant a text saying, "You ruined the best thing I ever had. [Sad emoji face] Don't contact me again." Some eight days later, the complainant has sent a Facebook friend request to the applicant.
91 In the context of this "word against word" trial, the theme of sexual interest in, and arguable inconsistent conduct towards the applicant on the part of the complainant ought to have been pursued in a comprehensive and consistent manner. What happened involved omissions of material assertions and submissions to the jury. I accept that it was a significant omission not to have asked the applicant whether anyone else had seen the van message. AD's evidence is relevant and capable of having some weight. Had the theme been pursued in the way I have suggested, using all of the material, the defence at trial would have taken on a completely different complexion. As it was, the theme was not fully developed; the approach in effect was a haphazard one.
92 These failures are probably sufficient in themselves to satisfy me that there was a miscarriage of justice, but there are some additional matters which provide an accumulation of issues that puts the question beyond doubt.
The evidence of LY
93 As I have noted above, the applicant argues that full instructions ought to have been taken by A at a much earlier time than happened, and says there is evidence that proper diligence could have obtained, and which would have proved to be of assistance. Primarily the submission is directed at the evidence of LY, an affidavit of whom is before the Court. Mr Y is a friend and work colleague of the applicant. Mr Y was present at the Apple Shed function on 14 July. He is able to give some evidence about what happened that night, although he did not observe the suggested physical contact between the applicant and the complainant as described by the applicant.
94 In any event, counsel for the applicant does not put any great weight on that evidence for the purposes of these proceedings. What is relied on is Mr Y's evidence that on Monday, 30 July, he and the applicant were working together. He said he sensed there was something out of the ordinary with the applicant because he seemed to be distant and not very talkative. Mr Y was frustrated with the applicant because he was trying to get a job done and the applicant was lacking focus. He seemed distracted and on the phone a lot.
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95 He asked the applicant what was going on. He says the applicant told him in confidence that the day before he had had sex with the complainant in his van; the applicant was upset because he felt he had betrayed his brother; the applicant said the complainant had instigated the sex by touching him in the van, moving towards the driver's seat and trying to kiss him which caused a collision with the bridge. Y says he was told that the applicant pulled over to see if the van was OK and it was at that point sexual intercourse took place. The applicant told him "he wished he had not given in to her attempts to try and have sex with him".
96 This evidence would have been admissible by way of s 66 of the Evidence Act 2001. It is not inherently improbable. Its import cannot be lightly dismissed. This discussion was at a time before the complainant reported a rape to her friend M in a series of text messages. Those messages were exchanged that evening, 31 July. The applicant's discussions with Mr Y also happened before any suggestion was made to the applicant that sexual intercourse may not have been consensual.
97 In his affidavit, A says that he was not informed of this witness. There is no dispute about that. Having read Mr Y's affidavit, he says he does not think it would have been tactically wise to call him. "The evidence in respect of the complainant being flirtatious I was able to elicit from BW and PO." He accepts that the discussion at work would have been admissible but he says, "That added little to what the applicant had already told the police. In my view it would not have been worth losing the last right of address to use this evidence."
98 I am afraid I see things differently. Mr Y's evidence is independent evidence of a spontaneously offered recounting of events that had happened the day before, and at a time when the applicant had no
reason – on his version – to suspect that he may be accused of wrongdoing. I am conscious that counsel
who practice in the criminal jurisdiction have different views about the value of the right of last address. That value must depend upon the importance of the evidence adduced. A's view might have been different had he obtained the information in a timely manner and given it proper consideration in advance. As it is, he is making a retrospective assessment.
99 By itself, the failure to ask appropriate questions about potential witnesses in a timely manner, and hence the failure to discover Mr Y's evidence, may not amount to a miscarriage of justice. But that failure needs to be added to the failures in respect of the communications.
The prosecutor's closing address
100 The applicant raises eight complaints about comments in the prosecutor's closing address. Only one causes me any concern. It relates to things said by the applicant in his police interview. In that interview, the applicant had explained his version and claimed the sexual intercourse was effectively instigated by the complainant and was consensual. The following questions and answers then appear:
"Q So you're not taking any responsibility for the fact that you had sex with your
brother's girlfriend?A No.
Q You're not taking any responsibility? A What do you mean by that? Q Well, you're putting it all onto her that she had sex with you. You're not accepting
that you also had sex with her?A Yeah, well I did. Q Yeah, but only because you lost control? A Well not really, it's like, yeah, it's just yeah, when she got at me at the wrong time – pretty much. Q Well why was it the wrong time? 19 No 16/2021
A Why? Q Yeah
A Well I'd had a couple drinks so when you get a couple drinks into you, you don't,
you don't, you don't really think about what you're doing do ya?Q Well you said you were fine to drive A Mm."
101 The prosecutor suggested to the jury that the applicant's demeanour in the interview was quite blasé, with him being solely interested in attributing blame, giving responses that were vague, sketchy and lacking detail. It was suggested the reason was that he was making it up as he went along, he did not want to get caught out by saying too much "... and he's trying to paint himself in the best possible light to cover his wrongdoing, not accepting responsibility through his own actions ...". The prosecutor said the police had even challenged him about this, and read out the part of the interview I have just set out with the exception of the last three questions and answers. The prosecutor then said, "No acceptance of wrongdoing whatsoever."
102 In my view this goes beyond submitting to the jury that what the applicant said in his interview should not be believed or should not create a reasonable doubt because the story is implausible and because of the way in which it was told. Viewed reasonably, that is not the effect of what was said. As the applicant submits, there are two alternative interpretations. The first is that the comments amounted to a suggestion that because the applicant did not admit non-consensual intercourse, it was evidence that he was guilty. The problem with that is self-evident.
103 The alternative is that the comments amounted to an attack on the applicant's character involving a moral judgment on an act of consensual sexual intercourse with his brother's partner. That seems to have been the attitude adopted by the questioning police officer. It might well be the case that in the circumstances the applicant sought to shift responsibility for an act of consensual sexual intercourse, but the suggested failure to "accept wrongdoing" and responsibility for his actions in the context of what he was saying, was unfair.
104 As I explained at the outset, on its own this would not have caused a miscarriage of justice but it is to be added to the matters I have already discussed.
The remaining complaints of the applicant – comments
105 Although it is not necessary to address these in any detail, I feel that something should be said about them. I am not persuaded that alone or in conjunction with other complaints, the failure of A to inspect the scene of the alleged rape is of any significance. It is suggested that had this occurred "fertile material for cross-examination of the complainant" would have been discovered. Most of that relates to the proximity of the scene to the applicant's home where the complainant had stayed the night. The applicant's points are that it was a short distance and so any cries for help or sounding the van's horn could easily have been heard, and there is room to attack the complainant's evidence that they had driven for two to three minutes before something happened. However, as A says in his affidavit, the complainant does not claim to have tried to attract attention. None of the proximity issues were incapable of being conveyed by word.
106 I take the same view in relation to the suggested failure to seek an adjournment of the trial for a period greater than the 24 hour period, in order to assess the phone records. I have already discussed the communications. I am not persuaded that any additional advantage would have been gained by more time for inspection. There is an additional point. The applicant initially claimed in his evidence that his father had driven him from the birthday party to BW's home where the applicant lived.
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107 He was cross-examined on the basis of the phone records and on the basis of multiple phone calls at about 4am, conceded that he had used a taxi from the city to Kingston, picked up a friend's car which then had a tyre problem, after which his father picked him up. The applicant says that had he had access to the phone records he would have remembered the true series of events and not had his credibility damaged in that way in cross-examination. I am not persuaded that there is anything relevant in that in relation to that aspect of the complaint.
108 Next is a complaint about the failure to seek the discharge of the jury in the face of what is said to be cross-examination of the applicant about his interaction with the female partner of a friend of the applicant, Ms W. The applicant says the distinct innuendo of the questioning was that the applicant had been sexually involved with Ms W while she was in a relationship with the friend. For some reason the prosecutor saw fit to pursue a line of questioning which she later accepted was tendency evidence, no notice of which had been given, and which the trial judge ultimately ruled did not have significant probative value.
109 The questioning of the applicant involved establishing a relationship between the friend and Ms W, with the following questions and answers asked and given before the trial judge intervened:
"And you were in the middle of it? ... What's – yeah.
Well, you told her that you would have to drop your contact with each other because you didn't want to mess things up for [the male friend], didn't you? ... That's off subject
– that off the topic –
No don't you worry about what's off the subject I'll ask you another question ... Say that
again?
You told [W] Yep
You would have to stop contact to her and meeting too [sic] and talking to her because of your friend ...".
110 The jury was sent out. Discussion ensued. The line of questioning was disallowed. No application was made to discharge the jury but A submitted the jury be directed that as a matter of law they were to ignore the questioning, and that the relevant passage be removed from the transcript so it would not appear in the copy the jurors had when they were deliberating. The trial judge agreed. When the jury returned the trial judge told the jurors the questions were irrelevant, that he was not going to permit any further questions, and that the passage would be removed from the transcript. His Honour repeated that the questions were irrelevant.
111 In his affidavit, A says that he did not apply for the discharge of the jury because he thought the application would not have succeeded. I think this is clearly a case where the applicant is bound by the conduct of counsel. I am not persuaded that it falls into the category of a decision for which there is no rational explanation.
112 The next issue relates to photographs of the van and the suggested physical improbability of the alleged rape. There is a complaint that photographs of the van supplied to A were not used to cross- examine the complainant and were not adduced. Familiarity with the interior of the van is said to be crucial for the jury to understand that sexual intercourse without consent was highly unlikely. As to this, A says he took the view that the applicant, having admitted having consensual intercourse with the complainant, in the front passenger seat of the van, it was not physically impossible for non-consensual sexual intercourse to have happened. He did not tender the photographs as he would have lost the last right of address. In her evidence, the complainant said she was trying to struggle, she managed to struggle but could not move. Again, I am not persuaded that these decisions are without rational explanation.
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113 In a similar category is the suggested failure to properly interview the applicant which led to a failure to cross-examine the complainant about some self-defence skills she allegedly possessed. It is simply asserted there was a failure to make further investigations "and potentially uncover a wealth of fertile material for cross-examination." The argument has no merit.
Conclusion
114 As I earlier noted, an appellant who seeks to establish that the conduct of counsel caused a miscarriage of justice undertakes a heavy burden. An appellate court should not lightly make such a finding and I do not do so. For the foregoing reasons, having given the matter close consideration, I take the view that the applicant "lost a chance fairly open to him of being acquitted", or "a real chance of acquittal": Mraz v The Queen (1955) 93 CLR 493 per Fullagar J at 514; Festa v The Queen [2001] HCA 72, 76 ALJR 291 at [115]; TKWJ v The Queen (above) per Gaudron J at [26], per McHugh J at [65]- [66]. In taking that view, I am not making any comment on the complainant's credibility as it appears from the transcript, or the strength of the Crown case.
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