JMW v Regina

[2007] NSWCCA 187

New South Wales
Court of Criminal Appeal

CITATION:	JMW v Regina [2007] NSWCCA 187
HEARING DATE(S):	4 May and 28 June 2007
JUDGMENT DATE:	9 July 2007
JUDGMENT OF:	Giles JA at 1; Hidden J at 2; Harrison J at 3
DECISION:	Appeal against conviction dismissed. Leave to appeal against sentence granted. Appeal dismissed. A NON-PUBLICATION ORDER EXPIRING ON 6 AUGUST 2007 APPLIES TO THIS JUDGMENT.
CATCHWORDS:	CRIMINAL LAW – appeal against conviction and sentence – one count of assault with intent to rape, act of indecency with a child under 16 years, assault with an act of indecency, two counts carnal knowledge, one count buggery - victim 14 years of age at time of offences – whether miscarriage of justice at trial due to evidence not produced by the appellant’s legal representatives, appellant’s legal representatives failing to act on instructions or directions given by the appellant, false or misleading evidence allegedly given by police, media influence, particularly at sentencing stage - admission of fresh evidence on appeal – whether less severe sentence warranted in law due to appellant’s age and ill health
LEGISLATION CITED:	Crimes Act 1900 - ss 63, 65, 76, 76A, 79 Crimes (Sentencing Procedure) Act 1999 - s 19(2), 30A, 44(2), Criminal Appeal Act 1912 - s 6(3)
CASES CITED:	Gallagher v R (1986) 160 CLR 392 Ignjatic v R (1993) 68 A Crim R 333 R v Abou-Chabake [2004] NSWCCA 356 R v Ritevski (1989) A Crim R 11 R v Simpson (2001) 53 NSWLR 704 TKWJ v R (2002) 212 CLR 124
PARTIES:	JMW (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/2036
COUNSEL:	Appellant in person P Ingram (Crown)
SOLICITORS:	Appellant in person S Kavanagh, (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/11/0488
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ
LOWER COURT DATE OF DECISION:	23 September 2005 (date of sentence)

- 2 -

2006/2036

GILES JA
HIDDEN J
HARRISON J

9 JULY 2007

JMW v REGINA

Judgment

NON-PUBLICATION ORDER

A non-publication order applies to this judgment. See pars [81-82].

1 GILES JA: I agree with Harrison J.

2 HIDDEN J: I agree with Harrison J.

3 HARRISON J: The appellant was tried on indictment by a jury before her Honour Judge Murrell in the District Court of New South Wales at Sydney between 6 June 2005 and 17 June 2005. The indictment presented at trial pleaded six counts as follows:

3.1 Count 1: that on 22 March 1981 at Riverstone the appellant assaulted Christine Mary Lindemeier (née Varga) with intent to commit upon her the crime of rape.
3.2 Count 2: that on 22 March 1981 at Riverstone the appellant committed an act of indecency with a girl Christine Mary Lindemeier (née Varga), she then being under the age of 16 years, namely 14 years.
3.3 Count 3: that on 22 March 1981 at Riverstone the appellant assaulted a female, Christine Mary Lindemeier (née Varga) and at the time of such assault, committed an act of indecency upon her she then being under the age of 16 years, namely 14 years.
3.4 Count 4: that on 22 March 1981 at Riverstone the appellant did without her consent ravish and carnally know Christine Mary Lindemeier (née Varga).
3.5 Count 5: that on 22 March 1981 at Riverstone the appellant did commit with Christine Mary Lindemeier (née Varga) the crime of buggery.
3.6 Count 6: that on 22 March 1981 at Riverstone the appellant did without her consent ravish and carnally know Christine Mary Lindemeier (née Varga).

4 Count 1 was an offence contrary to s 65 of the Crimes Act 1900. By the operation of s 19(2) of the Crimes (Sentencing Procedure) Act 1999 the maximum prescribed penalty for this offence at that time of the trial and sentence proceedings was imprisonment for a term of 14 years.

5 Count 2 was an offence contrary to s 76A of the Crimes Act 1900 for which the maximum prescribed penalty at the time of the trial and sentence proceedings had remain unchanged by the operation of s 19(2) of the Crimes (Sentencing Procedure) Act 1999 and was imprisonment for a term of 2 years.

6 Count 3 was an offence contrary to s 76 of the Crimes Act 1900 for which the maximum prescribed penalty at the time of the trial and sentence proceedings had remain unchanged by the operation of s 19(2) of the Crimes (Sentencing Procedure) Act 1999 and was imprisonment for a term of 6 years.

7 Counts 4 and 6 were offences contrary to s 63 of the Crimes Act 1900. By the operation of s 19(2) of the Crimes (Sentencing Procedure)Act 1999 the maximum prescribed penalty for each of these offences at the time of trial and sentence proceedings was imprisonment for a term of 14 years.

8 Count 5 was an offence contrary to s 79 of the Crimes Act 1900 of which the appellant was acquitted.

9 On 17 June 2005 the jury returned a verdict of guilty on Counts 1, 2, 3, 4 and 6. The jury returned a verdict of not guilty on Count 5.

10 On 23 September 2005 the appellant was sentenced in relation to these offences to the following terms of imprisonment:

10.1 On Count 4 to a non-parole period of 5 years to commence on 30 June 2005 and expire on 29 June 2010 with a balance of term of 2 years to commence on 30 June 2010 and expire on 29 June 2012.
10.2 On Count 6 to a non-parole period of 3 years to commence on 30 June 2007 and expire on 29 June 2010 with a balance of term of 4 years to commence on 30 June 2010 and expire on 29 June 2014.
10.3 On Count 1 to a non-parole period of 5 years to commence on 30 June 2005 and expire on 29 June 2010 with a balance of term of 2 years to commence on 30 June 2010 and expire on 29 June 2012.
10.4 On Count 2 to a fixed term of 1 year to commence on 30 June 2005 and expire on 29 June 2006.
10.5 On Count 3 to a fixed term of 3 years to commence on 30 June 2005 and expire on 29 June 2008.

11 The aggregate sentence thereby imposed consisted of an aggregate non-parole period of 5 years to commence on 30 June 2005 and expire on 29 June 2010 with an aggregate balance of term of 4 years to commence on 30 June 2010 and to expire on 29 June 2014.

12 The appellant filed a Notice of Application for Leave to Appeal against conviction and sentence, and a document entitled "Grounds of Appeal", each dated 11 August 2006. The appellant has notified 11 grounds of appeal against conviction. The appellant has also sought leave to appeal against sentence.

13 It is important at this point to observe that the appellant appeared unrepresented in this Court. In addition to the documents referred to in the preceding paragraph, the appellant initially filed a series of four handwritten documents. The first document is headed "Submissions" and is one page long. The second document is untitled but commences with the words “Your Honour". That document is two pages long. The third document is headed "Statement of Fact" and is nine pages long. The fourth document is headed "My Trial - What I Think Went Wrong". That document is six pages long.

14 In written submissions filed and relied upon in this Court, the Crown has emphasised that the appellant has filed no evidence in support of any of his 11 grounds of appeal, and in the case of some of the grounds of appeal, has made no submissions in support of them. It would appear that at the time those statements were made, the appellant had not served upon the Crown any of the documents referred to in the preceding paragraph. That had been corrected by the time of the hearing of the appellant's appeal in this Court and the Crown quite properly took no point in relation to it. The Crown was in any event able to prepare supplementary written submissions dealing with the matters discussed and described by the appellant in those four documents. The extent to which any of the material in the appellant’s four documents amounts to, or can be relied upon as, evidence in this Court is a matter to which I shall return in due course.

15 The Crown has also emphasised that, despite notifying an intention to apply for leave to appeal against the sentences, the appellant had not filed any grounds of appeal nor made any submissions directed to such an appeal. Further, the appellant has filed no evidence in support of an appeal against sentence. These are also matters to which it will be convenient to return in due course.

The conviction appeal

16 At least five grounds of appeal appear to proceed upon the basis that the appellant did not receive a fair trial because of things done, or omitted to be done, by the appellant’s then legal representatives. The specific grounds of appeal which bring forth complaints falling into this category are the following:

16.1 Ground 1 : "That my solicitor Ms Harris of the Legal Aid was incompetent - she did not heed any of my directions or instructions".
16.2 Ground 2 : "Three witnesses who were not called, or looked for (as case goes back 25 years ago) Ms Harris failed to look into".
16.3 Ground 3 : "That the medical evidence was [flawed] - no real challenge to it was made. No medical evidence was called on my behalf, such a person, a medical person, or doctor, to refute the [claims] of the victim's statement - where she [claims] she was a virgin at the time, but there was no blood on my sheets or [pyjamas], when I got them back".
16.4 Ground 7 : "That I was not permitted to give evidence or be cross-examined by the prosecution".
16.5 Ground 10 : " That a photo was used to [identify] Ms Varga to witnesses for the prosecution. It was a photo of the girl when she was 10 - not when I knew her - this photo was placed on the bar table some 7 feet from the jury, so when the jury came in or out of the Court they would see it".

17 Ground 1 would appear to be a general ground of which grounds 2, 3, 7 and 10 are particulars.

18 The Crown submitted that there was no evidence that any legal representative appearing on behalf of the appellant at the trial failed to act appropriately on any direction or instruction that may have been given by him. In particular, so the Crown submits, there was no evidence that Ms Harris failed at any time to convey the appellant's instructions to Mr Chicken of Counsel who appeared for the appellant at the trial.

19 The Crown had, prior to the hearing in this Court, attempted to obtain from the appellant a waiver of client legal privilege so as to enable representatives of the Crown to speak to Ms Harris and Mr Chicken and, if possible, to obtain a statement or an affidavit from them dealing with the appellant's allegations and complaints against them. Up until the day of the hearing in this Court, the appellant had declined to waive the privilege as requested.

20 However, during the course of the hearing in this Court, when faced with the reality that there was indeed no evidence before the court of any failings by Ms Harris or Mr Chicken of the type that the appellant alleged, the appellant agreed to waive the privilege. In the course of doing so the appellant also conceded that in fact his only complaints were against Ms Harris and that he no longer wished to maintain any complaint against Mr Chicken.

21 By arrangement with the Crown, Ms Harris was present at Court on the day of the hearing of the appellant's appeal. Presumably in anticipation of the appellant possibly waiving privilege, Ms Harris had prepared and sworn an affidavit that dealt, among other things, with the subject matter of the appellant's grounds 1, 2, 3, 7 and 10. It should be noted that neither that affidavit, nor any material which it contained, had been released to the Crown until after the appellant expressly waived his privilege in the way earlier referred to by me.

22 The affidavit in question was that of Joanne Harris sworn 4 May 2007. The Crown in this Court read it and Ms Harris was cross examined by the appellant upon its contents.

23 One of the documents annexed to the affidavit was a letter from the Legal Services Commissioner to Ms Harris dated 24 November 2005. That letter set out a series of six complaints made by the appellant to the Commissioner about Ms Harris's conduct as his legal representative at his trial. Those complaints were as follows: -

23.1 That vital evidence was overlooked and not presented in the appellant's defence;
23.2 That Ms Harris omitted to call a crucial (unnamed) witness on his behalf;
23.2 That the appellant's instructions were not followed and his advice was disregarded;
23.4 That the appellant was intimidated and harassed by the media outside Ms Harris's office, in court and at his home;

23.5 That inappropriate photographic evidence was allowed to be used; and

23.6 That the DPP and Police lost his file and had to make up a new one.

24 Ms Harris replied to the Commissioner's letter by her letter dated 16 January 2006. A copy of her letter is also annexed to her affidavit. Ms Harris responded to the appellant's six complaints. In summary, those responses were as follows: -

24.1 Considerable effort was expended in seeking out evidence to support the appellant's account. This included inquiries of the Attorney General’s Department to establish that the appellant received $14 witness expenses for his attendance to give evidence as a prosecution witness in an unrelated matter in 1981 and to the engaging of a private investigator seeking a potential defence witnesses in his own case.
24.2 Ms Harris was instructed by the appellant to locate a woman known only as "Emu". This woman was the mother of a young man (whose name was unknown) who was said to have overheard friends of the complainant say that the reason she fabricated the complaint against the appellant was because he refused service at the Riverstone Hotel Bottle Shop to underage teenagers in the neighbourhood. The appellant gave no further details of "Emu" and accordingly no further inquiries could be made. "Emu" turned out to be a woman called Robyn Watt. Her name did not emerge until during the course of the trial and did not appear anywhere in the brief.
24.3 Ms Harris denies categorically that she did not follow the appellant's instructions. It should be noted that on 14 June 2005 the appellant made an unsworn statement from the dock. The circumstances, including conferences and discussions with the appellant's legal representatives, which preceded the decision that led to the appellant making such a statement, instead of giving evidence in the proceedings, have not been identified in evidence in this Court.
24.4 Ms Harris agreed that the media harassed both her and the appellant and that the harassment continued throughout the trial. She denied that the blame for that could be sheeted home to her.

24.5 The Crown sought to show a witness a photograph of the complainant at a young age. Ms Harris had no recollection of that either being allowed or of the photograph being left within a view of the jury. The appellant did not bring his complaint to Ms Harris's attention in the course of the trial.
24.6 The charges against the appellant arose in 1981. The police retained witness statements, the appellant's record of interview, bench warrant and other documentary material. Copies of original documents were provided to the defence. Ms Harris said that neither the DPP nor the police "made up" another file. The police did not, however, retain, or had mislaid, physical exhibits, such as clothing and bedding taken in 1981.

25 Ms Harris also dealt with some miscellaneous matters raised by the appellant in his letter of complaint to the Legal Services Commissioner. It is unnecessary for present purposes to refer to these matters in detail.

26 The appellant was advised of the fate of his complaint by a letter from the Legal Services Commissioner to him dated 29 May 2006.

27 Cross examination of Ms Harris by the appellant in this Court elicited no matters of any assistance to him in his present appeal.

28 It is also important to note some matters raised by the Crown in its submissions in this Court in response to these grounds of appeal.

29 In the case of Ground 2, one of the three witnesses who the appellant alleged was not called at his trial was apparently a Mr Christopher Skinner. Ms Harris gave evidence at the appellant's trial of quite extensive steps that had been taken by her to locate Mr Skinner in support of an application to vacate the trial date. Ultimately Mr Skinner was located and called in the Crown case.

30 The Crown submits that, on the basis of the material presently to hand, this Court would not be satisfied that there had been a miscarriage of justice as a consequence of any failure on the part of Ms Harris, or any other legal practitioner acting on behalf of the appellant, to locate or to secure the attendance of any witness who might have been called at the trial to give evidence favourable to the appellant. Further, for cognate reasons, the Crown submits that this Court would not be satisfied that there had been a miscarriage of justice as a consequence of the absence of any witness who might have been called for the same purpose.

31 Just as significantly the Crown submits that there is no evidence that Mr Skinner was not asked questions which the appellant proposed should have been asked of him, or that even if such instructions were given, there is no evidence of the terms of the instructions or the questions. Accordingly, the Crown submits in these circumstances that this Court cannot now determine whether the appellant's legal representatives would have been duty-bound to comply with those instructions or whether it would nevertheless have been within their discretion to decline to do so.

32 In his written submissions the Crown pointed out that the appellant had not identified any other witness who may have been the subject of complaint under this ground of appeal. These submissions were prepared in response to the written material originally provided by the appellant. However, the appellant prepared some further written material (see below under the heading Further Submissions), to which it is necessary to refer in the present context.

33 At page 2 of his most recently filed material, the appellant made the following submissions in support of Ground 2: -

“I told Ms Harris the names of the witnesses, one was a worker, that had worked at the hotel, Richard Atkins or Atkinson of Riverstone. He was there in the bottle shop, the lad came and told us, "I know you did not touch Kristy, because she told us, that nothing happened at the caravan on the 22nd March 1981, at the bottle shop at that time was, myself, Richard and Chris Skinner, when the lad told us, what he heard. Chris Skinner, said, "are you telling the truth", he told us he wasn't the only one who heard it, he said that Treise (sic Therese) and Joann (sic Joanne) and others had heard what was said, we had to stop there as more customers were entering the bottle shop, so I told him to come back later, so I could talk to him.

The teenager's name was Kevin or Jamie Watt (not Watts) he was about 14 or 15 years of age, he was the son of one of the drinkers of the hotel, a Ms Robyn Watt.”

34 This material should be compared with what appears on page 7 of the appellant's Statement of Fact referred to earlier. The relevant portion of that material is as follows: -

“It was about a week or so, while in the bottle shop working, Chris Skinner (my boss) Rick (a worker) were talking, when this lad, one of the women, who drinks at the hotel, son, came up to us in the bottle shop and said to me, Hondo I know you did not do anything to Kristy. I said to him how do you know? Kristy Varga just told me and some others up outside the fish shop. Chris (the boss) said to him, you telling the truth? He said "yes" cause I am, I was not the only one who heard it. Just then some cars came, so we had to serve them, I said before he left come over to my van at 5 o'clock today, and we will have a talk.

So at 5 o'clock he came over, and told me the whole story - he believes they wanted me sacked because I would not sell certain people grog.”

35 The original version of the appellant's submissions contained no reference to a Richard Atkins or Atkinson. This person is not referred to anywhere else in any of the material to which this Court has been referred. That includes, significantly, the affidavit of Joanne Harris sworn 4 May 2007. In this respect it is important to note that the appellant's handwritten letter dated 14 October 2005, a copy of which forms part of annexure "A" to Ms Harris’ affidavit, refers to a failure by Ms Harris to locate a relevant witness, but does not refer either expressly or by implication to a Richard Atkins or Atkinson. For completeness, the relevant portions of the appellant's letter are as follows: -

“2. That Ms Harris had the name of one of my main witnesses mother, in her file, I found out this, after the jury went out. If this witness was used would have been found not guilty.”
**********

“The DPP got all their witnesses to court, where two Crown witnesses withdrew their statements. One even said that the signature was not hers, on the statement, she showed the judge her own signature, the other one, said she could not remember anything. As you can see, these two people, heard the so-called victim, tell them that nothing did happen on the night of 22nd March 1981, just the same as my witness, who heard the same, but who was not called by my defence team, (the one that Ms Harris had the mother's name).”

**********

“Why did Ms Harris keep, the mother's name of my witness away from me?”

36 In the case of Kevin or Jamie Watt, the position is slightly different. As with Richard Atkins or Atkinson, there is no reference to that person by name in the original version of the appellant's submissions. There is the reference to " this lad, one of the women, who drinks at the hotel, son". However, that information has to be read and understood in light of the position deposed to by Ms Harris in her affidavit of 4 May 2007, dealt with above at par [24.2]. Accordingly, Ms Harris was in no better position to locate this person than she was to locate his mother. Any alleged failure by Ms Harris to locate Kevin or Jamie Watt must therefore be considered in exactly the same way as any alleged failure by Ms Harris to locate Robyn Watt (or “Emu”).

37 To the extent that the appellant relied upon an alleged failure by Ms Harris, or those representing him at the trial, to locate either Richard Atkins or Atkinson, or Kevin or Jamie Watt, the Crown made the same submissions as those to which I have referred at par [30] above.

38 In the case of Ground 3 the Crown points out that the complainant was medically examined within seven hours of the alleged assault and that the medical evidence disclosed that her physical condition was consistent with the account of non-consensual penile-vaginal intercourse given by the complainant to the doctor and to the jury. Moreover, it is uncontested that investigating police took the bed sheets and other items, including the appellant's pyjamas, later on the day of the alleged assault, and that those items were conveyed to appropriate experts for forensic examination and analysis. A forensics biologist gave evidence in the Crown case that he had examined these exhibits and gave detailed evidence in relation to blood components present upon them. Accordingly, the appellant's contention that there was no blood on the sheets or pyjamas when he received them back from the police does not, in its terms, recognise that there was evidence given in the trial that forensic material had been found on one of the sheets that was consistent with the blood of the complainant.

39 In these circumstances, the Crown submits that, on the basis of the material presently to hand, this Court would not be satisfied that there had been a miscarriage of justice as a consequence of any flaw in the expert medical or forensic evidence in the Crown case or as a consequence of any failure by the appellant's legal representatives appropriately to challenge the expert medical or forensic evidence led in the Crown case, or to call any expert evidence to meet it.

40 In the case of Ground 7, there is no evidence that the appellant was prevented from giving evidence at his trial, had he so desired. Significantly, although the appellant made extensive submissions in this Court, none included details of his having been prevented from giving evidence in any way at all. It should also be noted that, despite the version of events provided to this Court in the form of the appellant's handwritten documents, his dock statement made at the trial contained substantially less detail. Moreover, questions directed to relevant Crown witnesses concerning the alleged attendance of the appellant as a prosecution witness in other sexual assault proceedings, and in relation to the alleged threats made to the appellant, and the remedial steps taken by him as a consequence, appear to draw on considerably less detailed material than the material provided by the appellant to this Court.

41 In the case of Ground 10, the Crown points out that the trial transcript discloses that, in the presence of the jury, a photograph of the complainant was shown to a Ms Scott, and that the photograph was then marked for identification. The appellant’s Counsel took no objection to that process during the course of the trial. There is no evidence before this Court concerning the way that the photograph was dealt with or handled which suggests that the appellant suffered any relevant prejudice at his trial as a result. The photograph was only used when a witness, Ms Scott, denied recognising the complainant or knowing her by name in 1981. On being shown the photograph, Ms Scott acknowledged that she recognised the young girl in the photograph as someone she had known.

42 Ground 4 contends, “That the police evidence [at the trial was] false and misleading”. Particulars of this allegation are given in the document in which the appellant attempts to describe what went wrong at his trial. He alleges that detectives Samuels and Laney gave false evidence as follows:-

"These police officers gave false evidence, they told the court, that I never gave evidence in the mass rape trial in 1981 - or it might have been 1982 - the only person who could tell you is the victim of the rape.

The other police officer, detective Francis of Blacktown Police, is I believe the one who wrote the false file - this man told me, he was an expert with computers, and can make anything disappear. This man for some reason hates the sight of me (this officer was not around 1981).

This police officer blames me for making a complaint to the Police Integrity Commission when it was not me, but Miss Varga.

Ms Harris told me that Ms Varga was each-waying her bets for criminal compensation. Now while waiting out here for my sentencing hearing, two officers from the Police Integrity Commission came to see me, and made a tape recording of the interview. I have not heard back from them. I'm not holding my breath. You must know, the police, look after their own. . .

I just could not believe they sat in that box and lied. Out of the three officers only Detective Laney looked over at me, the other two Detective Francis and Detective Samuels, did not look at me once in all the time they were in the witness box."

43 It was not suggested to either Detective Samuels or Detective Laney in cross examination that either was giving false evidence or may have been mistaken when they said that they had no recollection of ever having been informed of discussions concerning the appellant giving evidence for the prosecution in other sexual assault proceedings in 1981 or 1982.

44 The cross examination of Detective Francis was limited to the interaction of the COPS and CNI systems and whether, and in what circumstances, such systems might have put police on notice in the period between 2000 and 2004 that there was an outstanding warrant for the arrest of the appellant. There was no suggestion made in the cross examination of Detective Francis that he had destroyed evidence, falsified police records or otherwise engaged in any corrupt or criminal conduct to the prejudice of the appellant in relation to the charges the subject of this appeal, whether by reason of an erroneous belief held by him that the appellant had made a complaint concerning the matter to the Police Integrity Commission or otherwise.

45 The burden of the appellant's material, set forth in great detail in his handwritten documents, was that he did not commit any of the acts alleged against him by the complainant. His account was that he returned to his caravan with the complainant following the end of his shift at the bottle shop shortly after 11.00pm. They watched television for about 15 minutes when there was a knock at the door. He was told to go and pick up his daughter who had asthma, which was quite bad. He subsequently took his daughter to the Windsor Hospital. He left the complainant behind in the caravan by herself. He left the hospital at around 3.00am and returned to the caravan to find the complainant asleep on seats around the table. He put a blanket over the complainant, put on his pyjamas and went to bed. This was approximately 3.45am. The next morning the complainant got up and left "with a smile on her face".

46 The appellant went back to sleep after the complainant left. About 10 minutes or so later he was woken by a knock at the door, which he answered, to be confronted by a girl yelling at him saying that he had raped the complainant. He denied this. He got dressed, left the caravan looking for the girl, and came back shortly thereafter. It was then that he noticed that his caravan had been cleaned and tidied but that the ashtray was not in its usual location. When he found the ashtray it contained cigarette butts with filters. He was a smoker but rolled his own. He concluded, and continues to maintain, that the complainant's assailant was present whilst he was at the hospital and that, presumably, the cigarette butts were evidence of that person's presence.

47 The appellant was subsequently charged and given bail. About one or two months later, there occurred what the appellant describes as "a mass rape of a 14-year-old girl". In circumstances that remain otherwise unexplained, the victim of that attack apparently made her way to the appellant's caravan when the appellant was there with his 10-year-old daughter. A day or two later detectives Samuels and Laney, the same detectives who were investigating his own case, came to see the appellant to ask him what he knew about this new incident. The appellant gave them a statement and ultimately gave evidence at what would appear to be a committal at what is now the Local Court in Liverpool Street, Sydney. The next day the appellant received threats, first by phone, then by notes left on his caravan, to the effect that if he gave any more evidence in the case in which he was a witness, something would happen to him or to his daughter. The appellant said that he had great difficulty contacting the detectives in order to tell them about this. The appellant said that he ultimately gave one of the notes to a sergeant at the desk at the Blacktown Police Station and was told "he would put it in the file".

48 The next day the appellant quit his job at the hotel and thereafter changed addresses on number of occasions. He was not ultimately able to contact detectives Samuels and Laney or to tell them of his fears. Accordingly, the appellant rang Police Head Quarters in the city and "told them what was going on". Three or four days later two police officers came to his door, gave him $200 together with a letter to Social Services and told him to pack. They told him that his surname was to be changed and that he should thenceforth be known as JMW. The detectives then took him and his daughter to Central Railway Station and gave him two tickets to Melbourne. They told him that they knew where they could find him. He stayed in Melbourne until his return to New South Wales about six years ago.

49 It can be seen that this narrative contains several references to the role played by the police in a series of events that led to, and went beyond, the appellant's arrest. No detailed evidence would appear to have been given of this version of events at the appellant's trial. The appellant's dock statement did speak to some of these events, including the circumstances in which he began to fear for his life, and those leading up to his departure for Melbourne. However, that statement was extremely short, running only to a little over one and a half pages of double-spaced court transcript.

50 For presently relevant purposes, apart from the material referred to in par 36, or by reference to the terms of his dock statement, the appellant has not in this Court sought to particularise the ways in which the police gave false or misleading evidence against him, if it be the case, or of ways in which the police either prevented this exculpatory version of events being given in evidence, or falsely contradicting it if it had been.

51 The Crown submits in this Court that, on the basis of the material presently to hand, this Court would not be satisfied that there had been a miscarriage of justice as a consequence of any false or misleading aspect of the police evidence given at the appellant's trial.

52 Ground 5 contends, “That the file [relating] to much of the evidence was missing (such as doctors reports, threats, in the form of notes, made against me and my daughter) - that was in the file". It is not entirely clear precisely to which file the appellant is referring or where it might be located.

53 The Crown points out in its submissions that there was some evidence that the original notes of Dr Little were no longer available at the time of trial. Dr Little gave evidence in the committal hearing in 1981 during which she made direct reference to, and relied upon, her original clinical notes. When giving evidence at the trial, Dr Little relied on and directly referred to that committal evidence. Therefore, as the Crown submits, although the original notes were no longer available at the time of the trial, there was no shortage of evidence about their nature or contents and the evidence referred to by Dr Little, as her evidence given at the committal, was evidence before the jury.

54 However, there was no evidence given at the trial that there were any other missing documents that had, or might have, disclosed any record of threats, in the form of notes, made against the appellant and his daughter. Nor, according to the Crown submissions, was any evidence given or other material presented at the appellant's trial concerning the existence of any threats, whether in the form of notes or otherwise, that had been made against the appellant or his daughter.

55 Ground 6 contends, “That two [witnesses] of the [prosecution] withdrew their evidence (because the two people heard the victims say - that nothing happened on the night of 22 March 1981) some weeks after I was charged".

56 It is not immediately apparent to which witnesses the appellant is referring. For example, the Crown points out that there was no evidence in the trial that Ms Scott had ever withdrawn her statement. Ms Scott gave evidence in the trial that she did not know the appellant, was not giving evidence to assist him, had not made the statement dated 22 May 1981 which was shown to her in the Crown case and had not signed it.

57 If one of the witnesses is said to be Karen Baldry (née Dickson), there was no evidence in the trial that she had ever withdrawn her statement. Her evidence was of initial complaint and other matters substantially confirming various aspects of the complainant's evidence. If one of the witnesses is said to be Joanne Marsh, there was evidence that, despite police efforts, she had not been located. Finally, if one of the witnesses is said to be Colin Brown, there was no evidence that Mr Brown had ever withdrawn his statement but there was evidence that, despite police efforts, he had not been located either.

58 Ground 8 and Ground 9 can be considered together. They are respectively in the following terms: -

58.1 "That the media (namely Channel 7) did withhold evidence, did harass me and did school the victim into how to give her evidence".
58.2 "That Channel 7 did become part of the trial, instead of Ms Varga (the victim) reading out her impact statement, a Ms Anna Coren, a reporter for the TV show This Day Tonight (sic), read the statement instead".

59 There is no evidence or other material before this Court to support the assertions made by the appellant that the complainant was coached in relation to her evidence. The Crown does not dispute that in the sentence proceedings a Ms Anna Coren read out the complainant’s Victim Impact Statement. This was permissible in the terms of s 30A of the Crimes (Sentencing Procedure) Act 1999 which deals with the reading of such a statement in court by the victim to whom it relates or a member of the immediate family, "or other representative" of the victim.

60 The appellant did not expand upon the way in which any harassment or other allegedly inappropriate behaviour by members of the media had, or may have had, an adverse impact upon the result in his trial. If the jury were said to have been exposed to prejudicial material in the form of inappropriate news reports during the course of the trial, no submissions before this Court made that clear. No application was made on behalf of the appellant to the trial judge raising any such matter and no evidence dealing with it was tendered in this Court.

61 Ground 11 contends, "The victim and [prosecution witness] story did not quite match". The appellant has filed no evidence and makes no submissions in support of this ground.

62 The Crown submits in relation to all of these grounds that, although leave to appeal against the convictions might be granted, this Court would dismiss that appeal.

63 Although for obvious reasons the appellant's case has not been articulated in this way, the appellant seeks, in effect, to rely upon the material contained in the four documents referred to in par 13 as fresh evidence in this Court. The Crown's principal submission in response to this contention is that the material contained in those documents does not amount to evidence at all in this Court. Upon the assumption that the appellant could, if so advised, have deposed to the truth of the material contained in those documents, that objection can conveniently be put to one side for the moment.

Further Submissions

64 This appeal was heard on 4 May 2007 and 28 June 2007. In the intervening period, the appellant prepared further written submissions upon which he sought to rely. They were received in the Registry on 31 May 2007 and apparently served on the Crown at about this time. The Crown took no objection to the appellant relying upon these further submissions.

65 They consist of eight handwritten pages and are signed by the appellant. They are dated 19 May 2007. With the exception of some further material in support of Ground 2 (see pars [33] to [37] above), they refer to the same matters with which the appellant dealt in his original written material and in his expanded oral submissions to this Court on each occasion. The Crown did not seek to file further written submissions in these circumstances but was instead content to rely upon the written material originally filed.

Consideration

66 The Crown's principal objection is that none of the material is relevantly fresh and that the appellant should not be entitled to rely upon it in this Court for that reason alone.

67 This Court has power to permit fresh evidence to be called at the hearing of an appeal, whether the appeal is against sentence or conviction. The principles in relation to fresh evidence were summarised by Kirby J in R v Abou-Chabake [2004] NSWCCA 356. His Honour said:

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

Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial [ citation omitted ].

Third, the court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside the conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice.

. . .

Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth . . . It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better [ citation omitted ].”

68 The ultimate question for the court to consider is whether, in the light of the evidence sought to be led at the appeal, there has been a miscarriage of justice of the trial: see Gallagher v R (1986) 160 CLR 392 at 295, 402 and 410. There will be no miscarriage of justice where the evidence was not produced at the trial by reason of a responsible decision of counsel not to call the evidence for tactical reasons: R v Ritevski (1989) 39 A Crim R 11.

69 In my opinion, none of the "evidence" upon which the appellant now seeks to rely can be characterised as either "fresh" or "new". All of the appellant's complaints, manifest in his several grounds of appeal, argue that the trial was mismanaged by his legal representatives, corrupted by influences such as the police from within, or uncontrollably and adversely affected by agencies such as the media from without. Criticism is also directed to the way in which individual witnesses either gave, or allegedly declined to give, evidence of the trial.

70 It seems to me that the appellant has not been able to point to any evidence that was not available to him at the time of the trial, actually or constructively. On one view, and in some respects, the appellant's case in this Court is that, by reason of the significant passage of time between 1981 and 2005, evidence may have been lost, or witnesses may have disappeared. The appellant, however, has not, in terms, agitated that as a ground of appeal in this Court, and has not suggested that any application to vacate the hearing date, or to stay the trial on that ground, was inappropriately or appealably rejected by the trial judge.

71 It should be noted that the appellant expressly disavowed any ground of appeal in this Court based upon any complaint about the way in which his counsel conducted the trial of his behalf. Accordingly, the principles enunciated in cases such as TKWJ v R (2002) 212 CLR 124 and Ignjatic v R (1993) 68 A Crim R 333, do not require consideration by this Court.

72 In my opinion, the appellant's appeal against conviction should be dismissed.

The sentence appeal

73 The appellant has filed no evidence in support of an appeal against sentence. However, in the Notice of Application for Extension of Time for Notice of Appeal or Notice of Application for Leave to Appeal dated 11 August 2006, the appellant says that he has had two heart attacks since he has been in custody, has also discovered that he has emphysema and has contracted, and is still suffering from, pneumonia. He has stated in his written submissions that "I'm not in the best of health".

74 The appellant also made oral submissions in this Court, which reiterated these matters. He also emphasised his age.

75 A Pre-Sentence report was before her Honour when the appellant was sentenced. That report included a history given that the appellant then suffered from a heart condition and high blood pressure. It was also apparent that the appellant had suffered from emphysema for approximately nine years. Further, a Medical Certificate dated 8 August 2004 from Corrections Health Service reported that the appellant had ischaemic heart disease.

76 Her Honour accepted that the health of the appellant was one of the matters that constituted "special circumstances" warranting an amelioration of the non-parole periods to be imposed. The aggregate non-parole period imposed was 5 years or 60 months. The aggregate term imposed was 9 years or 108 months. Thus, the ratio of the aggregate non-parole period to the aggregate term is 60/108 or approximately 55 per cent.

77 It was submitted on behalf of the Crown that, having regard to the usual ratio of 75 per cent provided by the terms of s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a ratio of about 55 per cent demonstrates that her Honour added very considerable weight to, and significantly ameliorated, the aggregate non-parole period on account of the "special circumstances" of the appellant's age, his state of health, and the fact that he will serve his sentence in protective custody.

Consideration

78 The appellant has not submitted that her Honour committed any identifiable error in the sentencing process. It cannot be contended that her Honour was not possessed of all relevant information concerning the appellant, including the precise state of his health. On the contrary, having regard to the very serious nature of the offences, and to the available maximum sentences, it seems tolerably clear that her Honour fell into no identifiable error, and that her discretion did not miscarry in any way.

79 I am not satisfied, having regard to all of the circumstances, that some other less severe sentences than those imposed were "warranted in law" and should have been passed: see s 6(3) of the Criminal Appeal Act 1912 and R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at [79] and Sully J at [97].

Decision

80 I would grant leave to appeal against the sentences and would dismiss the appeal.

Non-publication Order

81 For reasons that do not, for present purposes, need to be specified, this Court made a non-publication order with respect to these proceedings on 4 May 2007 “until further order”. On 28 June 2007 it was agreed between the parties that that order should continue in force for a period of 28 days from the date of publication of this judgment regardless of the outcome. That order is discharged with effect from the expiration of that period.

Orders

82 Accordingly, I would make the following orders: -

1. Dismiss the appellant's appeal against conviction.
2. Grant leave to appeal against the sentences and dismiss the appeal.
3. Discharge the non-publication order with effect from the expiration of 28 days from today.

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