JPM v The King

[2023] NSWCCA 220

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

JPM v R [2023] NSWCCA 220

Hearing dates:

17 July 2023

Date of orders:

1 September 2023

Decision date:

01 September 2023

Before:

Ward ACJ at [1]; Garling J at [211]; Wilson J at [234]

Decision:

1.   Leave to appeal is granted.

2.   Appeal is dismissed.

Catchwords:

CRIME – Appeals – Appeals against conviction – Incompetence of counsel – Whether defence counsel failed to put defence to jury properly – Whether the applicant was not properly advised of giving evidence – Whether there was a miscarriage of justice

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes Act 1900 (NSW), ss 61KD, 61KF, 319, 323, 578A

Criminal Appeal Act 1912 (NSW), ss 5, 5F, 6, 7

Director of Public Prosecutions Act 1986 (NSW), s 7

Evidence Act 1995 (NSW), ss 38, 88, 90, 138

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:

AK v R [2022] NSWCCA 175

Ali v R [2005] HCA 8; (2005) 79 ALJR 662

Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419

Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322

AW v R [2023] NSWCCA 92

BQ v R [2023] NSWCCA 34

Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13

Davis v R [2017] NSWCCA 257

Gilham v R [2012] NSWCCA 131; (2012) 223 A Crim R 22

Hanna v R [2022] NSWCCA 7

Hofer v The Queen [2021] HCA 36; (2021) 291 A Crim R 114

Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318

La Rocca v R [2021] NSWCCA 116

Madden v R [2022] NSWCCA 196

Nguyen v R [2022] NSWCCA 126

Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301

R v Birks (1990) 19 NSWLR 677

Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429

Saunders v R [2022] NSWCCA 273

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16

WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142

Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371

Zhou v R [2021] NSWCCA 278

Category:

Principal judgment

Parties:

JPM (Applicant)
Rex (Respondent)

Representation:

Counsel:
P Coady, K Prince (Applicant)
J Styles (Respondent)

Solicitors:
Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/00164281; 2020/00256410

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW), publication or broadcast of the name of, or any matter which could identify the complainant is prohibited.

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identity the complainant or her sister is prohibited.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 June 2021

Before:

Zahra SC DCJ

File Number(s):

2019/00164281; 2020/00256410

HEADNOTE

[This headnote is not to be read as part of the judgment]

In March 2021, the applicant was tried before a jury in the District Court on four counts: count 1 was intentionally sexually touching the complainant, his 17 year old stepdaughter (contrary to s 61KD(1)(a) of the Crimes Act 1900 (NSW) (the Crimes Act)); count 2 was intentionally carrying out a sexual act towards the complainant (contrary to s 61KF(1)(a) of the Crimes Act); counts 3 and 4 related to the applicant’s attempts to pervert the course of justice by contacting the complainant’s mother to procure the complainant not to attend court as a witness, and to discourage the complainant’s mother from reporting to the police (contrary to ss 323 and 319 of the Crimes Act, respectively). The applicant was convicted of counts 2-4.

When first charged with counts 1 and 2, the applicant retained a solicitor friend (Ms Eljiz) and counsel (Mr Porter). The applicant alleged that he instructed his legal representatives that he had mistaken the complainant for his wife (the complainant’s mother) and had touched himself (i.e., masturbated) in preparing to have sex with his wife. The applicant’s trial for counts 1 and 2 was adjourned when he was charged with counts 3 and 4. During the adjournment, both Ms Eljiz and Mr Porter ceased acting for the applicant. Mr Enright became the solicitor with carriage of the applicant’s matter and, shortly before the applicant’s trial, Mr Martin was briefed as counsel. The applicant alleged that he had repeated his instructions regarding the mistaken identity defence to his new legal representatives. Both sets of legal representatives advised him that he would likely need to give evidence due to the contradictions between his evidence and that of the complainant, her mother, and the police witnesses. The applicant chose not to give evidence at trial.

The applicant sought leave to appeal against his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) on the ground of incompetence of counsel, namely that his counsel at trial did not conduct the case on the basis of the applicant’s contention that the mistaken identity defence was not put to the jury by his legal representatives and he was not properly advised about giving evidence at trial to support this defence.

The Court (Ward ACJ, Garling and Wilson JJ agreeing) held, granting leave to appeal, but dismissing the appeal:

1. As a general rule, a party is bound by the conduct of his or her legal representatives. In the present case, there was a clear forensic choice made by the applicant in a conference with his legal representatives that he would not give evidence. The applicant accepted that he had been asked to make a decision as to whether to give evidence and that he understood that he could give evidence up until the end of the trial: [201] (Ward ACJ); [233] (Garling J); [237] (Wilson J).

   R v Birks (1990) 19 NSWLR 677, applied.

2. It cannot be said there was incompetence in the decision that the defence counsel made, not to explore the “established sexual practice” line of questioning in establishing the applicant’s defence: [206] (Ward ACJ); [233] (Garling J); [237] (Wilson J).

3. It is insufficient for an applicant simply to point to some failing of the legal representative who appeared; the applicant must demonstrate that what did or did not occur affected the outcome of the trial. There was nothing on the evidence to support the conclusion that, had the complainant’s mother been questioned about the “established sexual practice”, the outcome would have been different: [207] (Ward ACJ); [233] (Garling J); [237] (Wilson J).

   Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429, applied.

JUDGMENT

1. WARD ACJ: In March 2021, the applicant was tried before Zahra SC DCJ and a jury of twelve in the District Court of New South Wales on four counts: counts 1 and 2 were sexual offences against the complainant; counts 3 and 4 were counts relating to attempts to pervert the course of justice. The applicant had pleaded not guilty on all counts.

2. The complainant was the applicant’s stepdaughter and was aged 17 at the time of the alleged offences. Accordingly, there is a statutory prohibition on the publication of the name of the complainant and anything that tends to identify the complainant (s 578A of the Crimes Act 1900 (NSW) (Crimes Act)); and there is also a statutory prohibition on the publication or broadcast of the names of the complainant and her child sister pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

3. On 29 March 2021, the jury returned with a verdict of guilty on each of counts 2 (intentionally carry out a sexual act towards the complainant without consent under authority contrary to s 61KF(1)(a) of the Crimes Act), 3 (intentionally contact the complainant’s mother with intent to procure the complainant (a witness) not to attend Court contrary to s 323(a) of the Crimes Act), and 4 (contact the complainant’s mother to discourage her from reporting to the police, intending to pervert the course of justice, contrary to s 319 of the Crimes Act) (see T 142, 29 March 2021). The jury was, however, unable to reach a verdict on count 1 (the alleged offence of touching the complainant sexually without consent (under authority) in breach of s 61KD(1)(a) of the Crimes Act); and the Director of Public Prosecutions discontinued the proceedings on count 1 before the sentence on count 2 (see remarks on sentence, p 2). The discontinuance was effected pursuant to s 7(2)(b) of the Director of Public Prosecutions Act 1986 (NSW).

4. On 11 June 2021, the applicant was sentenced by the trial judge to an aggregate sentence of 4 years, with a non-parole period of 2 years; the sentence to date from 9 November 2019 and to expire on 8 November 2023. The applicant was eligible for release on 8 November 2021, he was admitted to parole but is presently in immigration detention at the Villawood Detention Centre. The indicative sentences were: for count 2, 1 year 6 months; count 3, 1 year, 6 months and count 4, 2 years 6 months (see remarks on sentence, p 14).

5. The applicant seeks leave to appeal his conviction on count 2 only, on the sole ground that:

The Applicant’s defence was not properly put to the jury by his legal representatives. In addition, he was not properly advised about giving evidence. As a result, a miscarriage of justice has occurred in relation to the guilty verdict on Count 2 on the indictment.

6. In oral submissions before this Court, this was put squarely as an incompetence of counsel ground, giving rise to an asserted miscarriage of justice. The applicant accepts that (at [8] of his written submissions), as this ground of appeal does not involve a question of law alone, leave is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) (see Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 at [2] (Basten JA); Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44] (Basten JA) and at [68]-[71] (Rothman J)). The applicant makes that application relying on the third limb of s 6(1) of the Criminal Appeal Act, being that there was a miscarriage of justice.

7. If the conviction on ground 2 is overturned, the applicant seeks that an acquittal be ordered on the basis that the applicant will by then have served almost the entirety of his sentence. If there is to be a re-trial, the applicant seeks that any judgment overturning the conviction on count 2 not be published until such a retrial occurs.

8. In summary, the basis of the appeal is that the applicant maintains that he gave explicit and clear instructions as to his defence (in essence, a defence of mistaken identity), which were not followed by his legal representatives, as a result of which he says that questions central to his defence (going to an “established sexual practice” between himself and his wife) were not asked of critical witnesses. He contends that the defence case was not clearly put to the jury.

9. In particular, complaint is made that defence counsel failed to ask the applicant’s wife (during cross-examination) questions on the topic of a possible mistaken identity (see [83] of his written submissions). The applicant says that such questions might have included general family dynamics since the arrival of the complainant into the family unit (going to the aggravating feature of authority or motive to lie), family sleeping arrangements (going to whether the complainant slept in her mother and the applicant’s bed frequently or not) and whether there existed a sexual practice between the applicant and his wife consistent with the applicant’s instructions to his solicitor meaning mistaken identity was a reasonable possibility.

10. In oral submissions before this Court, counsel for the applicant accepted that questions as to the general family dynamics did not go to his central complaint (that being that there was no evidentiary basis established for the mistaken identity defence because no questions were asked of the complainant’s mother as to the “established sexual practice” the subject of the applicant’s instructions to his initial legal representatives – see further below (see T 18.21-42, 17 July 2023)). Further, it was accepted that one question was asked of the complainant as to the sleeping arrangements but counsel for the applicant draws a distinction (admittedly a “thin difference” between never sleeping in the parents’ bed and usually not doing so (see T 18.07-10, 17 July 2023)).

11. In addition, the applicant maintains that he was not properly advised of the importance of himself giving evidence in this case. In oral submissions, what was put was, in effect, that the applicant should have been advised that (as no evidentiary basis for such a defence had been laid through cross-examination of the complainant’s mother) without him giving evidence as to the established sexual practice between himself and his wife the defence of mistaken identity could not be established (see T 13.35-45, 3 August 2023).

12. It is submitted that in the present case there were cumulative errors in the applicant’s representation that must have had a prejudicial effect on the applicant’s prospects of acquittal (that is, there is a real connection between the errors of representation and the conviction) and hence a miscarriage of justice occurred, and an acquittal should be ordered on count 2.

Extension of time

13. The applicant accepts that this application for leave to appeal is brought out of time. The applicant seeks leave to bring the application out of time and relies upon two affidavits to explain the delay in filing the appeal: an affidavit affirmed on 19 December 2022 by the solicitor at Legal Aid with the carriage of this matter on behalf of the applicant (Ms Janet Witmer) and the applicant’s own affidavit affirmed on 21 December 2022. Ms Witmer’s affidavit principally provides an explanation for the delay in filing the application (including delay in obtaining the transcript, delay in obtaining further instructions from the applicant and further information from the legal representatives who acted for him before and during the trial, delay on the part of counsel briefed in the matter due to his involvement in other ongoing trials, and delay when Ms Witmer was on leave). The applicant’s affidavit goes largely to his substantive appeal but includes two paragraphs relating to the matters referred to below, at [47] and [48]. The applicant submits that the delay in bringing the appeal is explained, that his appeal prospects are good, and that substantial injustice would occur if the extension of time is not granted (see his written submissions at [10]).

14. The Crown did not oppose the extension of time sought by the applicant. There being a sufficient explanation from the delay, such an extension should be granted.

Background

15. As noted above, the complainant was the applicant’s stepdaughter and was aged 17 at the time of the offence. The complainant’s mother and the applicant met in Columbia, later marrying in Australia. The significance of this for present purposes is that English is not the applicant’s first language and emphasis is placed on his difficulties in communication (particularly, in his recorded police interview – as to which I will say more in due course). The applicant moved to Australia in 2007 and the complainant’s mother joined him in 2008. The couple had a child together in 2013. The complainant came to Australia in 2016.

16. At the time of the offence in 2019, the complainant’s half-sister (to whom I will simply refer as the sister) was five years old. The family, including the complainant, lived in a three-bedroom unit. The sister slept on a small bed in her parents’ bedroom. The complainant had her own room. (The complainant’s evidence at trial was that she did not usually sleep in her parents’ bed – see T 64.35, 18 March 2021.)

17. On 25 May 2019, the applicant and his wife held a party at their unit for some friends; and both became significantly intoxicated. The complainant arrived home around 11pm with her boyfriend.

18. In the early hours of 26 May 2019, the sister woke up and went to find the complainant, who was on the balcony of the unit at the time. The complainant took the sister back to her parents’ bedroom, put her in her parents’ double bed where the sister went back to sleep, and, in the course of re-settling her sister, the complainant fell asleep on the bed. At some point after this, their mother went to the bathroom in the unit (not the ensuite in the parents’ bedroom) and fell asleep on the toilet.

19. What next occurred, according to the complainant, was that the complainant woke up and saw the applicant standing next to the bed (close to her) and that he was masturbating (this was the conduct that formed the basis of count 2). The complainant also said that the applicant tried two or three times to pull down her pants while she was saying “no” and “stop” (this allegation formed the basis of count 1). The complainant said that she did not want to disturb her sister so she tried to call and text her friend (here referred to as “A”) who was staying with the family in the apartment at that time but there was no answer. The complainant said that she told the applicant to stop touching himself and after a while he did so.

20. The complainant left the bedroom and told her boyfriend, who was outside the room, that the applicant had masturbated next to her. The complainant then found her mother in the bathroom, woke her mother up and told her mother what had happened. (Both the complainant’s boyfriend and the complainant’s mother corroborated the complainant’s evidence as to the contemporaneous making of these complaints by the complainant.)

21. While the complainant and her mother were in the bathroom, the applicant came into the bathroom and there was an argument between the complainant’s mother, the applicant and the complainant (in the course of which the complainant says that the applicant prevented her from leaving the room and said something to the effect “What are you going to do about it?”). The complainant said that she demanded to be let out of the bathroom and told the applicant that she would call the police if he did not let them out. The applicant then made a 000 call to the police and said that the applicant had masturbated next to her (MFI 5 is the transcript of the call). The 000 call was made at 3.47am.

22. Police officers attended the premises and the applicant was arrested outside the apartment at about 5am on 26 May 2019. There was no interpreter present at the unit at the time of his arrest (see the cross-examination of Sergeant Steven Drummond at T 123.49, 22 March 2021). In cross-examination, Sergeant Drummond said that the applicant told him that he spoke Spanish and that the applicant nodded when asked “So we need a Spanish interpreter for you?” (see T 124.15, 22 March 2021) but Sergeant Drummond had no memory of passing on the request for an interpreter to any other police officer (T 124.22-27, 22 March 2021); nor did any other police officer who gave evidence recall such a request. Body-worn video footage was admitted in evidence at the trial.

23. The applicant was taken to Burwood police station. The custody manager, Sergeant Robert Grassi, determined that the applicant was too intoxicated to interview immediately. The custody management records note that “[t]he POI [person of interest] is intoxicated from drinking since 7pm from 25/05/2019”. Those records also noted that the “POI is compliant”; that there was a gradual lessening in the applicant’s intoxication over time; that the applicant was from a non-English speaking background; and that this was the first time the applicant had been placed in custody. Under the heading “Comments”, the notes record that “English appears good and is responding to questions asked appropriately”.

24. Sergeant Grassi recorded the following in his police statement of 18 July 2020:

9.   About 8.30am I asked the accused several questions as part of the Custody Management Questionnaire. I recorded my questions and the accused’s responses electronically. The accused appeared to answer all questions accordingly and appropriately, he was sitting upright was compliant and was able to converse in English without trouble. I made further notes in the Custody Management Record concerning his current level of intoxication. The accused told me that he consumed “whiskey and beer from about 7pm to at least 1am this morning”. L made an assessment that the accused, at that time, was moderately intoxicated with a strong smell of liquor coming from his breath and observed that he had sweat on his brows.

25. The complainant took part in a recorded interview with the police (the transcript of which is MFI 3), the interview commencing at 10.45am on 26 May 2019. In that interview, the complainant said:

So I was in the balcony with um, my date and my stepdad, [the applicant]. Um, we were, he was in a phone call with one of his colleagues from work from the army a long time ago. And then my sister woke up and she looked like she came out looking for me. She saw me on the balcony, and she came to me. She hugged me. And then she wanted me to put her in bed. So I followed her to the room. Um, but when I was trying to put her in bed and make her sleep, I fall asleep with her so I don’t know for how long did I sleep for but all I know is that when I woke up my stepdad was standing next to me um, touching his parts. And trying to put my pants down. Like twice or three times. I’m not sure. I was, I was um, trying to keep them up like not letting him pull them down. And I also was um, ‘cause I didn’t want to make noise, I didn’t want to wake up my sister. Ah, I got out my phone, I tried to call um, [A], she’s a friend that lived with, lived with us but she was already asleep so she couldn’t answer. Then I texted her. She didn’t answer ‘cause she was asleep. So I just um, I stood up and walk out of the room. When I walk outside um, [her boyfriend], my date, was standing outside. And he, I was crying like I was shocked. A bit scared. And he was, he asked me what happened. I told him and then I was looking for my mum. I didn’t see her but then he told me that she was in the bathroom. So I went to the bathroom. And I locked the door. And I was there with her telling her what happened. Um, then I would say two minutes, one minute after he came in. Like he unlocked the door and came in the bathroom. And then he was going to close the door but [her boyfriend] um, my date, he didn’t let him close the door. He put the foot in the door so he doesn’t close the door. And he started arguing with my mum. My mum was telling him like, “Why would you do that to [the complainant], why, why do that to her, you know my daughter is first”, this and that. And then he um, was saying like, all he said was like, “And what, what are you going to do about it?” So I, I was still crying so I, I stood up and I yelled at him like, “Open the door. Like let us get out.” But he was like, “What are you going to do about it?” Like, I, I was like, “If you don’t let us out I’ll call the police.” He probably didn’t think I was going to do that. But then when he saw me on the phone giving the details and stuff um, like two minutes after he like told us to get out of the bathroom. We got out and he left the house. And my mum and I we locked the doors and I just sat there crying ‘cause I was shocked and a bit scared still, it was something I wasn’t expecting to happen.

26. The complainant also said that: the applicant was standing centimetres away from her, but exactly how far she couldn’t say (Q/A 144); she saw the applicant’s penis but then looked away (Q/A 149); the applicant was masturbating by moving his penis up and down (Q/A 151); the applicant was trying to get her pants down at the same time (Q/A 153); the applicant used both hands to try and pull her pants down (Q/A 165); the applicant’s clothes were half way down, around his thighs (Q/A 184); the applicant was whispering but she could not understand what he was saying (Q/A 190); that she was trying to call and text her friend, “A” (Q/A 201, Q/A 207); and there was a lamp on in the room (Q/A 225). The complainant also said in the interview that on getting up from the bed she went outside the bedroom and said to her boyfriend, “My stepdad was masturbating next to me and trying to pull my pants down” (Q/A 242). As to her relationship with the applicant, there was the following exchange:

Q314.    In the two years that you’ve lived here, what has your stepdad’s role been in your life?

A.   Well our relationship isn’t the best. It’s never been the best because he, he’s used to like to tell people what do and he want them to do what he says. But with me he’s not like ‘cause if he tells me something and I don’t want do it, I won’t do it. So like we argue a lot for that.”

27. During the interview, the complainant drew diagrams which were later tendered in evidence (Ex A). One of the diagrams shows the applicant’s bedroom, indicating the applicant standing close to the bed where the complainant and her sister were lying.

28. The applicant was interviewed by Detective Senior Constable Jim Zoras (the record of interview was admitted in the voir dire – see Tab 6 of Ex VD A), commencing at 1pm that day (see Ex D, transcript MFI 15). No interpreter was present.

29. As to the caution given to the applicant at the time of taking his statement, the custody management records contain the following under the heading “Caution Summary”:

Caution and part 9 read and given to PIC [person in custody]. He was asked to read out aloud the first three paragraphs which he did without error. [U]nderstood caution that was read out to him, along with reading out aloud himself. Answered “YEP” to official caution. [H]e was offered the services of an interpreter, however declined stating, “[I] can understand English, [I]’m okay”.

And under the heading “Inspection”:

has had part 9 read to him, signed property docket. Appears fine and well. No longer considered adversely affected by alcohol. Answering questions appropriately thus far and no issues raised.

30. Sergeant Grassi’s statement dated 18 July 2020 (referred to above) continued:

13.    Upon handing the accused a copy of the form, I asked him to read the first three paragraphs of the document, which he did without error. I made notes in the [Custody Management Record] reflecting this.

I read aloud the form titled ‘Caution and Summary of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002[’] to the accused. I circled point 3 of the Caution and Summary of part 9 being the official CAUTION.

I said to the accused, “While in police custody, you do not have to say or do anything but anything you say or do may be used in evidence. Do you understand that?”

The accused said, “Yes”.

I continued reading the Caution and Summary of Part 9 for detained persons to the accused. I then asked the accused, “Do you need the services of an interpreter to understand this form?”

The accused said, “I can understand English I’m okay.”

14. At the conclusion of reading the Caution and Summary of Part 9, I asked the accused if he “understood these rights as have been explained?’

He said. “Yes”

I said. “Do you have any questions in relation to your rights?”

He said. ‘No’”.

I then printed and signed my name on the rear of the Caution and Summary of Part 9 form.

I said to the accused. “Can I now get you to print and sign your name here, indicating location on the form?

He said, “yes”.

The accused then printed and signed his name.

I made a copy of the part 9 form and placed it with his property that was in a drawer behind the Charge room counter. The accused was then placed back into Dock 3. I was satisfied that the accused was no longer affected by intoxicating liquor, he appeared fine and well and answered questions accordingly.

31. The police electronic record of interview (ERISP) with the applicant contained the following exchange:

Q8   Your rights were explained to you by the custody manager and you were given a copy of them. The custody manager is the other sergeant in this?

A   Yep.

Q9   Do you want to exercise any of your rights now?

A   Yep.

Q10   [13:01] So do you understand that he gave you a piece of paper?

A   Yeah, yeah, yeah.

Q11   And he read all that piece of paper?

A   Yep.

Q12   O.K. So everything he’s explained to you?

A   Yes.

Q13   Are you happy to keep going?

A   Yep.

32. Counsel for the applicant points to the inconsistency in the above answers (where the applicant indicated that he wished to exercise his rights and then continued with the interview) as demonstrating the difficulties in communication but, as explained below, the applicant does not here challenge the ultimate admission into evidence of parts of the ERISP.

33. The custody manager at the police station (Sergeant Grassi, see T 214.14-24, 23 March 2021) and the officer in charge (Detective Senior Constable Zoras, see T 186.45-49, 23 March 2021) each gave evidence to the effect that he believed that the applicant did not need an interpreter; and neither recalled anyone telling him that the applicant needed an interpreter.

34. Counsel for the applicant points to the following responses in the ERISP as also showing that the applicant had significant difficulties with understanding questions and expressing himself in English:

Q51   Do you understand why the police arrested you?

A   No.

Q52   O.K. Do you agree that someone at the police, from the police at your unit told you[,] you were under arrest? Do you know what arrest means?

A   Yeah.

Q53   What does arrest mean?

A   What does arrest mean?

Q54   Yeah, because if police come …

A   Yeah.

Q55   … and arrest somebody …

A   Yes.

Q5   …what does that mean to you?

A   Some, some foul, maybe they made the foul or something and …

Q57   You made a foul?

A   I don’t know.

Q58   O.K. A foul, what, are you talking soccer or what are you talking about? I don’t understand what you’re trying to say by the word “foul”.

A   Other, something wrong.

Q59   Yeah, something wrong. Yeah. Do you know why police were called to your unit this morning?

A   No, because …

Q60   [13:05] You don’t know?

A   …I no call the police.

35. During the interview, the applicant was asked if he knew what masturbating meant and he said (Q/A 73) “Masturbating it’s like for yourselves … oh, the person … how to explain, like the person try to for himself do a sexual thing or something” and he agreed with the proposition that when that man plays with his own penis that was masturbation (Q/A 74-76).

36. The applicant went on to make the following statements during the interview: that he had drunk four bottles (of whisky, rum and beer) (Q/A 97-99) and that, on a scale of 1 to 10, with 10 being the most drunk, he was “about ten” (Q/A 102). The applicant said that he thought he remembered going into his bedroom (which he shared with his wife and the sister) and that the complainant and the sister were in the bedroom on the bed (Q/A 132-145).

37. The applicant said he was one metre away (from the complainant) (Q/A 147). At Q/A 149-150, the applicant was asked whether the complainant was under the covers or on top of the covers and said he thought she was under the covers (but I note that these questions do not make clear whether he realised that at the time of the incident or whether that was what he thought when he was being interviewed).

38. Asked what he remembered doing next, the applicant said “I don’t know. Started looking for the, I don’t know stupid thing maybe because was looking my wife around, see …” (Q/A 151) and “I still looking for my wife” (Q/A 152). He said his wife was in the bathroom and “Maybe is too drunk or something, no idea” (Q/A 153-155).

39. Asked what he meant when he had said “stupid thing”, the applicant said “Maybe I had tried to masturbate in my …” (Q/A 158). When pressed as to whether he had masturbated he said “Tried, yeah” (Q/A 159). When asked whether that was in front of his daughters, he said “Next to her not in front of her” (Q/A 160) and “She, she there, is looking there, the, the, the, is sleeping and they’re here” (Q/A 161). When asked whether he thought that was right (in context, meaning the right thing to do) the applicant said “Of course not” (Q/A 162); and when asked why (it was not right), the applicant said “It’s stupid” (Q/A 163) but then when asked why (it was stupid) he said “Oh, I have no idea” (Q/A 164).

40. The applicant confirmed (at Q/A 165) that he remembered doing it (i.e., masturbating). However, the applicant denied that he had tried to take off the complainant’s clothes (Q/A 166-169). Asked later in the interview about trying to remove the complainant’s clothes he said (at Q/A 203), “I have no idea, because very drunk, too drunk … no. What do you, I do it’s too much, yeah, too much drunk” and then said “no, no not really, yeah” when asked if he remembered trying to remove her clothes (Q/A 203).

41. When asked again why he would stand next to his daughters and masturbate he said “No, no idea. Some very, very bad night with the, the drink is very bad for me” (Q/A 170).

42. The applicant understood that an erection was when “the penis stand up” (Q/A 177) and agreed that his penis was “still standing up” even though he was drunk (Q/A 179-180). At Q/A 182 he said he “Tried to masturbate. Tried to masturbate in my bedroom”. When later asked (at Q 184), again, why he did this he said:

Well, I don’t know, it’s a thing like, I have no idea so it’s to ….and I want to or something…looking for my wife and she’s in bathroom, waiting for her. She doesn’t come. Stupid things.

43. The applicant confirmed that he had masturbated in the same room with his biological daughter and stepdaughter (Q/A 190); and no one made him do it (Q/A 192-193). He did not ejaculate (Q/A 195, Q/A 199).

44. There was the following exchange (from Q 206):

Q206   Well why would [the complainant] make that up?

A   Because maybe I stay next to her and the, the bed, the bed.

Q207   How would you feel if you were a 16-year-old girl and you saw your stepfather masturbating next to you?

A   Yeah, it’s very bad.

Q208   How would you feel?

A   Bad

Q209   But why?

A   Because it’s no, it’s not normal.

Q210   [13:21] So you’re saying your behaviour was not normal?

A   I said there’s no, there’s no, the right thing the right thing next to her bedroom, especially with your daughter.

45. Later in the interview, the applicant said that when he was masturbating he had his penis out (Q/A 336 – “Of course, yeah”) and that the complainant could “Maybe” see his penis and that he thought so (Q/A 337-339). The applicant said that the complainant was one metre away from his penis (Q/A 340).

46. At this point it should be noted that, in his affidavit affirmed 21 December 2022 on the present application, the applicant has deposed at [11] that he had touched his penis on the outside of his pants; that he did not take his penis out of his pants; that he did not take off any clothes; and that he had touched his penis through his clothes and had only touched the button on his pants but had not undone them when the complainant sat up and got out of bed (this evidence being inconsistent with his statement in the ERISP that his penis was out). The applicant addressed this inconsistency in his affidavit at [20](j), saying that his penis was never out and that he must not have heard or understood the question properly. The applicant refers to instructions given to his lawyer to the effect that “I didn’t show my penis” (see below as to the instructions he gave to his legal representatives).

47. In the ERISP, the applicant said that when the complainant woke up, she said “No, stop it” (Q/A 490). In his affidavit, the applicant deposed that when the complainant said something like “Stop” he stopped touching himself immediately (see at [12]).

48. The applicant was charged with two sexual offences (counts 1 and 2 described above). The maximum penalty for the count 2 offence was 3 years imprisonment. The applicant was released on bail on 17 February 2020. The count 3 and 4 offences (the administration of justice offences) relate to attempts made by the applicant between February and August 2020 in telephone calls to his (by then) ex-wife attempting to persuade her not to make a statement and for her to persuade the complainant not to attend court. The count 3 offence carries a maximum penalty of 7 years imprisonment. The count 4 offence carries a maximum penalty of 14 years imprisonment.

Applicant’s legal representation

49. Given that the sole ground here sought to be raised on appeal is identified as an incompetence of counsel ground, it is important to set out the chronology of the applicant’s legal representation and instructions given by him.

50. The applicant had two sets of legal representatives. When he was first charged, he retained a friend who is a solicitor (Ms Laura Eljiz) who arranged for a barrister (Mr Glen Porter) to be retained.

51. Ms Eljiz, in her affidavit sworn 12 June 2023, has deposed that she represented the applicant from in or around August 2019 to 7 September 2020 and that Mr Porter was retained as counsel (and undertook the majority of the work in preparation for the trial) but that she and Mr Porter ceased acting for the applicant on 7 September 2020 as the applicant could no longer afford to pay for representation (see at [2]-[6]).

52. The applicant, consistently with this, has deposed that the trial had to be adjourned when he was charged with counts 3 and 4; and that after this Ms Eljiz said she could no longer represent him as he was unable to continue to pay her fees, although Mr Porter would continue to represent him with Legal Aid funding (see his affidavit affirmed 12 December 2022 at [32]).

53. Ms Eljiz went on to depose that Mr Porter had suggested a firm to the applicant (Smythe Wozniak Legal) and that her understanding is that counsel provided that firm with his complete brief and all material in the matter (at [6]).

54. Mr Christopher Wozniak, a partner of Smythe Wozniak Legal, in his affidavit sworn on 22 June 2023, confirmed that his firm had the carriage of the applicant’s trial and subsequent sentencing (at [1]). The solicitor ultimately with carriage of the matter at Smythe Wozniak Legal was Mr David Enright. Mr Wozniak confirmed that Mr Porter had retained his brief in relation to the trial but that in late December 2020 he was notified that Mr Porter had taken up a position as Crown Prosecutor. At least by 22 January 2021, Mr David Phillips was briefed to appear at the trial and he had substantive carriage of the matter up until early March 2021.

55. Shortly before the trial was due to commence, Mr Phillips was unable to continue with the brief (due to other ongoing trials) and Mr Jonathan Martin was then briefed. Mr Martin was defence counsel at the trial and for the sentencing hearing.

56. Mr Martin affirmed an affidavit on 12 July 2023 in which he deposes to being instructed by Mr Enright, and at times Mr Wozniak, to appear at the applicant’s trial. His account of the timeline of events is that he was first contacted on the afternoon of 4 March 2021 by Mr Phillips about the matter. (At that time the footage of the conversation the applicant had had with police at the scene had not been served, nor had the pre-recorded ERISP or photographs of the scene.) Mr Martin was formally engaged by Smythe Wozniak Legal on 5 March 2021 and he appeared at the trial from 8 March 2021, instructed by Mr Enright.

Applicant’s instructions to his initial legal representatives

57. The applicant has deposed (see at [23]ff of his affidavit) that he had several conferences with Ms Eljiz and Mr Porter, referring to six in-person visits between August 2019 and January 2020 from Ms Eljiz at Parklea Correctional Centre (on one of which occasions Mr Porter had accompanied her); and a telephone conference in May 2020 with Ms Eljiz and Mr Porter, as well as additional telephone calls with Ms Eljiz.

58. The applicant has deposed that during those conferences he told Ms Eljiz and Mr Porter several times that he had thought the person in his bed was his wife and that he was touching himself through his pants to get ready for sex with his wife; and that he did not know the complainant was in bed until he saw her when she sat up. The applicant has deposed that it seemed clear to him from his conversations with Ms Eljiz and Mr Porter that this was the defence that would be put to the jury.

59. Annexed to the applicant’s affidavit (Annexures A, B and C) are typewritten documents in which the applicant recorded his comments about parts of his police interview and the statements of the complainant and her boyfriend respectively, those being documents sent to him by Ms Eljiz when he was on bail. The applicant has deposed that he commented on them and emailed them to Ms Eljiz in July or August 2020. In evidence in this Court, the applicant said that a friend who was better than him at English had helped him to write this down but confirmed that they were his words (see at T 31.01-12, 17 July 2023; see also his affidavit at [26]).

57. Relevantly, as to Annexure A (which related to the applicant’s ERISP), the applicant there recorded that “I honestly thought that the person lying under the covers was my wife so I started undressing while unsuccessfully trying to get an erection (see Q/A 159) because my wife is often playful after a party. Note that I was unable to find my wife anywhere (see Q/A 154) else in the apartment and [the complainant] had never come into my bedroom by herself, or got into my bed in the past. It was therefore reasonable to assume that the person lying under the covers in dim light was my wife”.

58. Commenting on the issue as to whether he admitted masturbating in the presence of the two daughters, the applicant said “I did admit to touching myself when I thought my wife would be expecting me to fulfill my marital duties. However, I do not admit to ever trying to remove [the complainant’s] clothes because that allegation is false. I immediately stopped my actions as soon as I realised that [the complainant] was the person lying under the covers”.

59. Further, the comments included:

… I thought that the person lying in bed was my wife and she would have expected sex if I got into bed. I often experience high levels of anxiety when I cannot get an erection because of my drinking (Q 170). My wife is unforgiving.

I was not impressed to find [the complainant] in my room and gave her a nasty look when she saw me undressed. She softly said ‘stop touching yourself’, then turned around and kept texting. Her boyfriend knocked [on] the door so she stood up and left the room in no hurry. It was news to me when my wife told me later that I was doing something with [the complainant]. I did innocently ask ‘is there anything wrong?’ (Q 142). I could not believe [the complainant’s] false accusations and saw no reason for police intervention. In my view, [the complainant] was hurt and disappointed that I did not welcome her new boyfriend with open arms and concocted the story, as a payback, in order to create trouble with my wife.

63. In his comments on the complainant’s statement (Annexure B), the applicant does not suggest that his penis was not out (when addressing the complainant’s statement that she could see his penis); rather, he says that the lighting was fairly dim at the time and points to this as the reason why the complainant could not describe what his penis looked like “nor tell what hand I was purportedly using to masturbate”. (This last comment raises a question as to whether the applicant was maintaining at that stage that he had not masturbated at all but there is no doubt room for ambiguity through translation of his comments, “purportedly” seeming an unlikely word for a person not articulate in English to use.)

64. Annexure C provided comments on the statement by the complainant’s boyfriend.

65. Annexure D was a record of instructions referred to by the applicant’s counsel as akin to a proof of evidence. Counsel for the applicant relies on Annexures A-D of the applicant’s affidavit as the record of the applicant’s initial instructions to his legal representatives.

66. Ms Eljiz confirmed (at [7] of her affidavit) that Annexures A-D to the applicant’s affidavit were prepared based on the applicant’s verbal and written instructions. Annexure D is not dated. The applicant believes it records answers to questions asked by Ms Eljiz verbally when he was still in custody with follow up questions (emboldened in the note) which Ms Eljiz asked on another day (but he cannot now recall exactly when the questions were asked). Logically, this cannot have been after 7 September 2020 (since that is when Ms Eljiz ceased acting for the applicant). Annexure D included the following:

I am not guilty to any count on the indictment. The allegations are false.

My lawyers advised me previously of the high likelihood that I will be found guilty and the high likelihood of a prison sentence

I acknowledge having received that advice however I do not accept it

I did not at any time make any attempt to remove [the complainant’s] pants or clothes

I did not at any time masturbate in the presence of [the complainant]

I believed that the person in the bed was my wife

I started undressing while unsuccessfully trying to get an erection because my wife is often playful after a party

I often experience high levels of anxiety when I cannot get an erection because of my drinking. My wife is unforgiving

I did touch myself when I thought my wife would be expecting me fulfill my marital duties

67. None of the above was in answer to an emboldened question. There then followed two emboldened questions:

Q What does be mean by unsuccessfully trying to get an erection? And what does he mean exactly about “touching himself”? didn’t show his penis, he was touching himself through his clothes – he said even [the complainant] said that she couldn’t see anything in her interview

Q What does he mean when he says his wife is “unforgiving”? she gets upset if he cant get it up

68. There followed further notes of instructions including

[the complainant] had never come into my bedroom by herself

[the complainant] had never got into my bed in the past to my own knowledge

As soon as I realized that it was [the complainant] lying under the covers I immediately stopped my actions

She was in my bed fully dressed and under the covers

The bedroom door was unlocked

The light in my bedroom was dim

…

I was not impressed to find [the complainant] in my room

I have [sic; gave] her a nasty look when she saw me undressed

…

69. The applicant has deposed (at [25]) as to the statement recorded in Annexure D, which comprises Ms Eljiz’s notes of her instructions, that he gave the complainant “a nasty look when she saw me undressed”, saying that his lawyers must have misunderstood him because he was not undressed and the complainant never saw him undressed; though he there seems to accept that he may have given the complainant a nasty look when she sat up in bed and got out of bed and he realised it was her, not his wife. Of course, the same statement appears in his own comments in Annexure A, although his evidence seems to be that those comments were prepared with help from a friend (see at [26]), so, on the applicant’s evidence, it would appear that the same error occurred twice (or else Ms Eljiz’s note of her instructions came in part from the comments in Annexure A).

Instructions received by Smythe Wozniak Legal

70. When the matter was transferred to Smythe Wozniak Legal, Ms Eljiz’s file was transferred to that firm. Mr Wozniak, in his affidavit sworn 22 June 2023 in the proceeding, has confirmed that Annexures A-D to the applicant’s affidavit are on the firm’s file (electronically archived) but he is unsure whether they were received by him personally.

71. Mr Wozniak confirmed that on this file there was also the email that is Annexure E to the applicant’s affidavit (an email dated 22 January 2021 from Mr Enright to Mr Phillips) (see below). The only additional file note of any instructions, he said, appeared to be a file note (see Annexure CRW2 to his affidavit) that appeared to be of instructions from the applicant.

72. Consistently with this, the applicant has deposed that Mr Enright contacted him by telephone at John Moroney Correctional Centre to tell him that he was going to represent him; and that Mr Enright told him that he had all the paperwork and instructions from Ms Eljiz (at [34]-[35] of his affidavit). (It would seem this is the telephone conference the subject of the email which is Annexure E to the applicant’s affidavit – see below.)

73. Mr Enright’s evidence is that he does not recall having access to Annexures A-D at any time before or during the trial (T 39, 17 July 2023); that he did not speak to Ms Eljiz; and he did not look at the transferred file (T 41.01-05, 17 July 2023).

Instructions given to the second set of legal representatives

74. The applicant has deposed that he had a couple of brief telephone conversations with Mr Enright but “no conference in which [he] was asked to give extensive instructions”, the only significant question that the applicant could remember being as to the amount and kind of alcohol he had to drink at the party (see his affidavit at [36]). Further, the applicant has deposed (at [37]) that he never had a conference with either Mr Phillips or Mr Martin. (At least so far as Mr Martin is concerned, this can only be referring to pre-trial conferences as it is abundantly clear that there were conferences with Mr Martin during the trial.)

75. Mr Enright’s file note of instructions is that which was recorded in the email annexed as Annexure E to the applicant’s affidavit. That is an email sent on 22 January 2021 from Mr Enright to Mr Phillips, copied, inter alios, to Mr Wozniak. The email has the subject header “File note on legal call to [the applicant] – John Morony CC”. The Annexure E email records that there was a telephone call from 12pm to 1pm that day and includes:

Need instructions re your upcoming trial on 8 March 2021. Our barrister and I will speak to you again before Court but need to get your version on a few things first.

He needs an interpreter for his trial – Spanish interpreter

76. For the applicant, it is noted that there was no interpreter on the phone call recorded in this file note. Mr Enright in his oral evidence accepts that there was no interpreter on the telephone call but said he had no difficulty in communicating with the applicant (and no such difficulty is recorded in his file note) (see T 41-42, 17 July 2023), although quite fairly he accepted that there was a possibility of some degree of confusion during that conference call (see T 43.05-09, 17 July 2023).

77. The instructions there recorded as to the allegation that the applicant masturbated in front of the complainant are as follows:

He was very drunk early in the morning. [H]e couldn’t find his wife and became concerned, so he went looking for her. [H]e went to the main bedroom first and walked into the en-suite and couldn[’]t see her.

He then looked over to the bed and saw someone in bed under the blanket, so he walked over, pulled the blanket down and noticed it was [the complainant and the sister] in his bed.

He said to [the complainant]: ‘why are you here in my bed’

She responded: ‘what are you doing’

He wasn’t masturbating, he didn’t have his penis out, he wasn’t stroking it. His clothes were still on.

[The complainant] couldn’t have been in the bed longer than 2-3 minutes so she couldn’t have already fallen asleep. He saw her with [the sister] not long before, she was taking [the sister] to bed he said but doesn’t know why they went to his room.

She said she tried to call [her friend, “A”] while this was all happening, why didn’t she just get up if I was doing that. [N]othing like that happened (him masturbating in front of her).

His version:

I went to our bedroom to look for my wife, I thought she was in the bathroom in our room, or in bed. I didn’t see my wife in the bathroom in our room. I noticed there was someone in the bed with the blanket on top. I didn’t know if it was [the complainant] or [his wife]. I went over to the side of the bed and pulled the blanket down from over the persons head, and noticed it wasn’t my wife, it was [the complainant]. I also saw [the sister] in the bed then next to [the complainant].

[The complainant] then woke up and I said to her ‘what are you doing here in my bed’ because Shes [sic] never in my bed. She didn’t respond. I didn’t say anything else; I left the room and went to the other bathroom and saw my wife was on the toilet, very drunk. My wife was sitting on the toilet, her pants down. She was very drunk. I said to [his wife] ‘I was looking for you’ she didn’t respond she was too drunk.

78. The file note then records the applicant’s instructions as to the incident in the bathroom (inconsistent with the versions given by the complainant and her mother) and about his arrest and ERISP. The email then records matters about the forthcoming trial (the need to organise a Spanish interpreter and to obtain advice as to the ERISP) and the applicant’s denial of the allegation that the applicant had breached his bail conditions.

79. The applicant has deposed, in relation to Annexure E, that he did not have any substantial conference with Mr Enright and does not recall ever discussing or being asked what was set out in his email (see his affidavit at [40]). He repeats that he can only recall one or perhaps two telephone conversations with Mr Enright; and says that he (the applicant) did not tell Mr Enright the things in the email (postulating that Mr Enright may have read the material from Ms Eljiz but made some mistakes about it). The applicant says that he did not tell Mr Enright or Ms Eljiz that he had pulled the blanket off the complainant. Pausing there, the text of the Annexure E email on its face suggests that (contrary to the applicant’s account) this was indeed a record of instructions taken by Mr Enright over the telephone call with the applicant (and that is consistent with Mr Enright’s oral evidence that he had not read Annexures A-D or the transferred file – matters that counsel for the applicant points to as not compliant with the obligation to take a proper proof of evidence). Moreover, this is consistent with Mr Enright’s account that he was directed to take a proof of evidence from the applicant by his managing solicitor, Mr Wozniak. The suggestion that the only instructions taken in this (one hour) conference call were as to the amount and kind of alcohol consumed on the day of the offence is not tenable.

80. Mr Enright swore an affidavit on 14 June 2023. He did not have access to his physical file at the time of his affidavit (as he is no longer employed by Smythe Wozniak Legal). Mr Enright did not recall having access to Annexures A-D in the applicant’s affidavit (the only record before this Court of the original instructions) but did produce Annexure E (to the applicant’s affidavit) and believed it was accurate. Mr Enright did not recall having any face to face or video conferences with the applicant in preparation of the trial (at [10]); he considered that the applicant’s affidavit at [39] accurately described the verbal exchange of the telephone call transcribed in his file note (that telephone call seeming to be in response to a request by his managing solicitor to take fresh instructions from the applicant with respect to the brief for the trial) being Annexure E.

81. Mr Enright recalled having a telephone conference with the applicant leading up to the trial for the purpose of obtaining instructions on a pre-trial application to exclude the applicant’s electronic record of interview with police, including as to what kinds and quantities of alcohol he had consumed (at [14]). He recalled having a telephone conference with the applicant in preparation of the trial to take instructions but did not recall if Mr Phillips was present. This seems to be the conference the subject of the email at Annexure E to the applicant’s affidavit.

82. He also recalled a number of conferences with the applicant during the trial, with Mr Martin and the interpreter, and recalled taking handwritten notes during the conferences but did not have access to those notes.

83. Mr Enright accepted, in cross-examination in this Court, by reference to the previous lawyers’ notes (Annexures A-D) that the applicant had given them instructions at least that there was a pattern or an established sexual practice with the applicant’s wife (see T 45.44-46.04, 17 July 2023).

84. As to Mr Martin, the applicant has deposed (at [41]) that he never had a conference with Mr Martin who only became his barrister on the first day of the trial as far as he knows (again this is clearly referring to pre-trial conferences only). (Mr Martin accepts that there was no conference with the applicant before 9 March 2021.) The applicant says that the only conversations he had with Mr Martin were the first day of his trial when he came down and told him that he was his barrister and that Mr Enright was running late. The applicant then adds that “[s]ometimes Jonathan Martin would come down to the cells at lunch for 5 minutes for a brief visit, but nothing significant was ever asked in those visits”.

85. Mr Martin deposes (at [7]-[8] of his affidavit) that he had access to Annexure E (the email from Mr Enright to Mr Phillips) prior to the commencement of the trial on 8 March 2021 (and had access to Annexures A-D by the afternoon of 17 March 2021, that being the time at which he commenced cross-examination of the prosecution witnesses). Mr Martin gave evidence that he received Annexures A-D as part of the previous brief and says that he did read those documents in preparation for the trial (T 67.19-68.01, 17 July 2023); and he accepted that there were references in those documents that expressed a pre-established sexual practice or routine (see T 68.38-69.20, 17 July 2023).

86. Mr Martin has confirmed that he did not have any conferences (via AVL telephone or in person) with the applicant prior to 8 March 2021, the date the trial was listed for hearing (at [9]) and says that his first conference of any significance with the applicant was in the cells at the Downing Centre at 10.35am on 9 March 2021 (at [10]).

87. Mr Martin was adamant that he had taken a proof of evidence albeit in various notes (T 69.30-43, 17 July 2023) not collated in a single document. Mr Martin also deposed that he had a number of general discussions with the previous barrister, Mr Phillips, both prior to and during the trial, about issues in the case, particularly as to the admissibility of the ERISP and also as to whether an application should be made to sever counts 3 and 4 from counts 1 and 2 (see at [12]-[14], [22] of his affidavit).

Advice given as to the matter

88. Ms Eljiz deposed at [9] that both she and Mr Porter advised the applicant that he would most likely have to give evidence as his version of events contradicted that of the alleged victims (presumably referring to both of the sisters) and was also inconsistent with the accounts of the police.

89. At [41] (the second of the two paragraphs so numbered in his affidavit) the applicant refers to being told by Ms Eljiz and Mr Porter that they were going to try to make sure the ERISP would not go to the jury and they thought they would probably be successful but also they told him that if it was admitted into the trial then he might need to give evidence. The applicant also deposes at [42] that he thought the barrister at trial would defend him by telling the jury that the applicant thought it was his wife in the bed (because that is what he had told Ms Eljiz and Mr Porter).

90. The applicant deposes at [44] that when the matter went to trial Mr Enright came to the cells and asked him if he wanted to give evidence; that he (the applicant) asked whether he should and that he was told that Mr Enright could not advise him and that he had to make the decision (this is consistent with Mr Enright’s stated general practice to advise clients as to it being their right and their decision whether to give evidence (see T 47.40-48.03, 17 July 2023) but Mr Enright also maintains that there were a number of discussions from the very start of the trial as to the decision the applicant would make as to giving evidence). The applicant deposes that if he had realised how important it was that he give evidence and explain what he meant in the ERISP he would have done so (at [44]-[45]).

91. Mr Martin has deposed that, at the 9 March conference, he discussed the most pertinent aspects of the applicant’s ERISP (at [10]). An interpreter was present. Mr Martin says that he advised that the prospects of an acquittal on all counts were not good or favourable; and that he said:

There is a problem even if your interview is excluded because you were heavily intoxicated at the time of the incident and you were still intoxicated during the interview. The prosecution will put to you that you are denying the accusations of sexual touching and commit sexual act because you have no memory of the events in the bedroom and argue this before the jury in their closing address.

92. Mr Martin has deposed that he discussed in detail with the applicant the risks involved in not giving evidence in his trial (see at [11]) saying that if he did not give evidence the jury would be left only with the complainant’s evidence and it was likely that if the jury found she was not lying and she was not delusional then they would not have a reasonable doubt as to his guilt.

93. Mr Martin has deposed that on multiple occasions throughout the trial he and Mr Enright had conversations with the applicant in the presence of each other and the Spanish interpreter that they could not tell the applicant whether or not to give evidence and that he must make the decision.

94. Mr Martin says he also discussed the need to sever counts 3 and 4 because if those counts were not severed from counts 1 and 2, the evidence of his phone call to the complainant’s mother would be heard by the jury and used by the Crown as evidence of consciousness of guilt (at [12]).

95. Mr Enright swore a second affidavit on 13 July 2023, referring to advice given to the applicant at the beginning of the trial about his decision to give evidence during one of the pre-trial applications to exclude the applicant’s ERISP; and said that a Spanish interpreter had assisted during that evidence (at [3]-[4]). He also referred to other conferences with the applicant during the trial about his decision to give evidence (again where the applicant was assisted by the interpreter). Mr Enright recalled that at one of the conferences the applicant said words to the effect (at [8]):

I am afraid to give evidence to the jury because the prosecutor might try to trick me like she did when I gave evidence at the start of the trial when there was no jury. [This was a reference to evidence given on the voir dire.]

96. Mr Enright recalled the advice given to the applicant about giving evidence at the trial (during a conversation in which the interpreter was present) was that the court case against him was strong, particularly because his ERISP was played to the jury and did not assist him; and that he should consider giving evidence to explain some of his answers given in his ERISP; but that it was his decision to make and his legal team could not make this decision for him (at [10]).

Course of the trial

97. It is relevant to set out the course of the trial with some precision in order to put into context the conferences that were held with the applicant and the advice given in those conferences.

98. On 8 March 2021, the matter was before Yehia SC DCJ (as her Honour then was). On that occasion, Mr Martin informed her Honour that the trial was not ready to proceed (see T 1.29-35, 8 March 2021); that there were two pre-trial applications – one, an application to exclude the ERISP, and the other an application to sever counts 3 and 4 (the administration of justice counts) from counts 1 and 2; and that Mr Martin had not yet seen the body-worn footage of the applicant’s arrest or the video of the ERISP (see T 1.39-43, 8 March 2021). The matter was mentioned again the following day (9 March 2021), which is the date of the first conference that Mr Martin held with the applicant.

9 March 2021

99. At that 9 March 2021 conference, Mr Martin says that the applicant provided instructions as to the factual circumstances and events in relation to counts 1 and 2; and that they then discussed the Crown’s offer of pleas of guilty to counts 1 and 2 and rolling up counts 3 and 4 into one count of act with intent to influence a witness (and putting this on a Form 1) (see at [12]-[14] of his affidavit).

100. Annexed to Mr Martin’s affidavit (marked A) is a copy of Mr Martin’s seven-page handwritten notes of this conference. Those notes include the applicant being asked “is the issue can’t agree to indecent assault because you can’t remember” to which he notes the answer as being “No No” and that the applicant said that “… I went in looking for my wife in the bedroom. Instead of my wife her under the blankets was [the complainant]. I did not do anything. Also if she is alleging she had her phone in hand in bedroom if she is alleging why didn’t she take photo” (to which Mr Martin’s note indicates he pointed out that on the complainant’s evidence what she was doing was texting “Help!”). Mr Martin’s notes record that he pressed whether it was that the applicant did remember enough that it was mistaken identity and he thought it was his wife under the blankets or that he could not accept the complainant’s version because he did not remember.

101. Mr Martin records the applicant’s response as being “[i]n my memories I didn’t do it. She said I was mast[urbating]. I went in there looking … She had no right or permission [to be in my bed]…” and again referred to his wife. Mr Martin asked was it that he was just looking for his wife only or that he thought it was his wife only under the blankets and he was masturbating. (It is evident from this that Mr Martin was endeavouring to understand – and test – his client’s instructions as to the critical events in relation to count 2). Mr Martin’s notes record that the applicant said “I would say I was expecting the person under the blankets to be my wife. I have never tried to masturbate in front of [the complainant]”; “my intention not to masturbate in front of [the complainant]”.

102. Questioned again as to “was it to mast[urbate] thinking wife under covers?” to which the answer was “I did not go there with intention”; “party and alcohol, we (he and wife) would normally have sex. I did not masturbate”.

103. When asked if he remembered the whole time in the bedroom or did not remember all of it and cannot agree he masturbated, the answer was “What I remember something so quick I don’t think it lasted in 30 sec[onds]; I don’t think all the things alleged”.

104. The note then records a third option of accepting a plea of convenience and the response was that he was not going to plead guilty (“never”).

105. The conference notes then continue to deal with the applicant’s complaints about the complainant; issues going to authority; history of any arguments or domestic violence; and the offence of perverting the course of justice.

106. Mr Martin has deposed that he explained that he and Mr Enright gave the applicant time to consider the offer and then visited him again with the interpreter at 11.30am when the applicant instructed them to reject the Crown’s offer (see Annexure B).

10 March 2021 – commencement of voir dire

107. On 10 March 2021, the matter came before Zahra SC DCJ. The pre-trial issues were raised; the indictment presented and the applicant was arraigned before his Honour. The applicant pleaded not guilty to each charge.

108. The trial judge then commenced a hearing on the voir dire as to the application to exclude the ERISP. Sergeant Drummond and Sergeant Grassi gave evidence and then Detective Senior Constable Zoras’ evidence commenced with the playing of the ERISP.

11 March 2021

109. The viewing of the ERISP continued on 11 March 2021 and Detective Senior Constable Zoras was cross-examined. There were then some submissions made in relation to the application to sever counts 3 and 4 (as the expert witness to be called for the defence on the application to exclude the ERISP, Professor Weatherby, was not available that day to give evidence). Although the transcript records the matter being adjourned then to 12 March 2021, the next day on which there was transcript of the trial was Monday 15 March 2021 (see T 94.36, 11 March 2021; T 95, 15 March 2021).

110. Mr Martin has deposed at [16] that on 11 March 2021, the applicant raised with him for the first time (in a conference from the dock) that he was not permitted by investigating police to make a phone call to seek legal advice before his ERISP (see Annexure C to Mr Martin’s affidavit). This conference was in the presence of Mr Enright and a Spanish interpreter.

15 March 2021

111. When the hearing of the pre-trial applications resumed on 15 March 2021, submissions on the severance application continued before Professor Weatherby, an expert pharmacologist, was called. Professor Weatherby gave evidence as to the effects of sustained alcohol intake and memory. Professor Weatherby’s report dated 18 February 2021 was tendered as VD1. On the voir dire, Professor Weatherby gave evidence in essence as to the possible effect of alcohol consumption on memory loss (anterograde amnesia) (see T 103.40-104.16, 15 March 2021). The effect of Professor Weatherby’s evidence was that: loss of memory caused by intoxication can occur from low levels of alcohol ingestion; and, based on the applicant’s self-report of the volume of alcohol consumed, the applicant may have been suffering anterograde amnesia due to alcohol intoxication at the time of the interview. After Professor Weatherby had reviewed the video footage, this conclusion was further based on the applicant not being able to remember certain things and appearing confused during the ERISP (see, for example, T 112.37ff, 15 March 2021).

112. There followed submissions on the application to exclude the ERISP. In essence the challenge to its admissibility (invoking ss 88, 90 and 138 of the Evidence Act 1995 (NSW) (Evidence Act)) was based on: alleged contraventions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) in not complying with provisions relating to vulnerable suspects (in that the applicant expressed to interviewing police officers that he wished to exercise various rights including the right to silence and requiring an interpreter); and the unfairness of the interviewing due to the applicant’s level of intoxication and inability to understand and properly to express himself in English.

113. The trial judge (at T 140.17-21, 15 March 2021) pointed to the difficulty as to the lack of evidence going to the relevant issues on the exclusion of the ERISP application as to whether the applicant was denied a lawyer or denied an opportunity to sober up; following which defence counsel (Mr Martin) suggested that instructions might be necessary as to whether the applicant wished to give evidence on the application (at 141.10-13, 15 March 2021). There was then a luncheon adjournment taken.

114. Mr Martin deposes at [17] to a conference on 15 March 2021 in the Downing Centre cells with the applicant, attended by Mr Enright and a Spanish interpreter, which he said dealt overwhelmingly with the ERISP and instructions on what evidence the applicant would give should he choose to do so regarding what he was in fact saying in that interview and why he gave certain answers. This conference clearly occurred during the luncheon adjournment. Mr Martin says that the applicant again raised the issue about not being allowed a phone call to seek legal advice prior to his ERISP; and Mr Martin deposes at [20] that Mr Enright told the applicant that he did not have to give evidence (and that a negative inference could not be drawn from not giving evidence); that they could not tell him whether to give evidence or not but that he suggested the applicant did give evidence, although he had told him the risks of that. Mr Martin deposes that Mr Enright said that the only way for the applicant to explain that he needed an interpreter would be if he gave evidence from the witness box (see p 9 Annexure C to Mr Martin’s affidavit).

115. Mr Martin’s notes of the 15 March 2021 conference (some of which are not in Mr Martin’s handwriting) suggest that the focus of the discussion on that occasion was as to whether to give evidence in order to exclude the ERISP but Mr Martin’s oral evidence was that he also had in mind the question whether the applicant would give evidence in the trial itself.

116. When the matter resumed after the luncheon adjournment, Mr Martin made an application (not opposed by the Crown) to re-open the defence case to adduce evidence from the applicant on the voir dire. The applicant then proceeded to give evidence (with the assistance of an interpreter) and was cross-examined.

117. The applicant gave evidence on the voir dire to the effect that: he answered “yes” to pre-interview questions as an acknowledgment of what was said to him, rather than an acceptance of the contents of the questions (T 144.04-12, 15 March 2021); he did not remember reading out part of the Part 9 LEPRA rights; he signed the rights acknowledgment as Sergeant Grassi told him it was routine (T 147.01-15, 15 March 2021); and he had difficulties speaking English, having not learned to speak English and relying on his wife who did speak English (see T 151.09-15, 15 March 2021).

118. Submissions were made as to the pre-trial applications on 15 and 16 March 2021. Professor Weatherby was recalled (after having had an opportunity to view the video footage of the ERISP and of the arrest) and gave some evidence as to his observations having viewed the videos of the interviews with the police (see T 172ff, 16 March 2021).

16 March 2021

119. His Honour ruled on 16 March 2021 on the application to sever counts 3 and 4 and the application in relation to the said duplicity of those counts, declining both applications (T 169.15-25, 16 March 2021). His Honour also indicated that he would allow the redacted ERISP into evidence (excluding portions that his Honour considered it possible were reconstructed memory) (T 175.37-46, 16 March 2021). There is no contention of error as to those decisions. However, the applicant submits that the contents of the ERISP and the circumstances of the applicant’s participation in the interview are relevant to the sole appeal ground here raised.

120. Mr Martin has deposed (at [22]) that, after the applicant gave evidence on the application to exclude the ERISP and the trial judge decided partially to admit the ERISP into evidence, consideration was given to seeking to appeal the admission of the ERISP but that, after advice on this issue, Mr Wozniak instructed him not to file or pursue a s 5F appeal under the Criminal Appeal Act. As noted, on the present application, counsel for the applicant submitted more than once that the trial judge was correct in his dismissal of the pre-trial applications and that there is no challenge to those decisions.

17 March 2021

121. The trial proper, so to speak, commenced on 17 March 2021. The applicant was formally indicted and arraigned in the presence of the jury (pleading not guilty to each charge) and the jury was empanelled on that date.

Crown Opening (T 13.33ff, 17 March 2021)

122. The Crown opened the case against the applicant with the complainant’s account given in her emergency 000 call to the police: “My stepdad, he was drinking, and he was masturbating next to me, and he’d gone into the bathroom with my mum. He doesn’t want to let me go out” (T 13.33, 17 March 2021); this being the conduct relied on for the count 2 offence.

123. The prosecutor then described the family relationships and the night of the offence, before recounting the allegation in count 2, and then the allegation in count 1 (the act of trying to pull down the complainant’s pants) (see T 14.15ff, 17 March 2021). After explaining the attempt by the complainant to text and call her friend, “A”, and how the complainant left the room when her boyfriend knocked on the door, the Crown explained the making of the contemporaneous complaints to the complainant’s boyfriend and mother; and the altercation in the bathroom before the making of the 000 call, attendance by the police and arrest of the applicant.

124. The Crown then addressed the elements of the offences and the issues the Crown needed to prove in relation to counts 1 and 2 before addressing counts 3 and 4. In the course of addressing the elements of the offence in count 2, the Crown said (at T 16.33-40, 17 March 2021):

The second [element] is that this act of masturbation was carried out towards [the complainant]. Now, I anticipate she will give evidence that the accused was facing her with his body and that he was only centimetres away from her. If you’re satisfied of that, then you can be satisfied the act was directed towards her. Again, you also need to be satisfied that this act was intentional and the Crown will be submitting something as specific as masturbating while facing her could not have been anything but deliberate, it could not have been accidental or careless.

125. The Crown suggested that the statements the subject of counts 3 and 4 were capable of being of use to help the jury determine whether counts 1 and 2 occurred (T.17.45ff, 17 March 2021).

126. In relation to the applicant’s ERISP, the Crown said (at 18.32-37, 17 March 2021):

…and finally you’ll hear from police officers involved in this investigation including the detective who is the lead officer in this case, who conducted and recorded an interview with the accused once he was arrested back in May 2019; you’ll watch this interview and you will note that during the course of this interview the accused admits to some of this conduct from the allegations from May 2019.

Defence Opening (T 21; 17 March 2021)

127. The applicant’s counsel in opening described the central issue as being proof beyond a reasonable doubt and emphasised the burden on the Crown. The applicant’s counsel noted the agreed facts (which went to the family relationships) (T 21.22, 17 March 2021) and raised the question whether the complainant was honest, truthful, accurate or reliable (T 21.38ff, 17 March 2021). There was no reference to any case of mistaken identity in relation to count 2.

128. In opening, the applicant’s counsel said this as to the applicant’s ERISP (21.30, 17 March 2021):

One of the most important things that you must remember in this trial and keep in mind all through the trial is that [the accused] does not have to prove what he says happened in the counts before the Court. He does not have to prove anything in this trial. Do not lose sight of that fact as members of the jury. The fact that [he] has stated in his interview that things happened does not mean that the onus shifts to him to prove any of the things that he describes in his interview to any standard.

Complainant’s evidence

129. The complainant commenced her evidence at 2.32pm on 17 March 2021.

130. As noted above, the complainant’s evidence as to the making of complaints to her boyfriend and her mother about the applicant’s conduct was corroborated by those witnesses; as was her evidence that the applicant had tried to prevent her and her mother from leaving the bathroom. Apart from the 000 call, there was a recording from one of the police officer’s bodycam video in which the complainant again made the allegation that the applicant was masturbating in front of her and trying to get her pants off. The Crown therefore says that there were immediate and consistent complaints made by the complainant to her mother, her boyfriend, the 000 operator and police.

131. There was in evidence before the jury the complainant’s written statement to police on 26 May 2019 (marked as MFI 4) and, as noted above, a transcript of her recorded interview with police on the same day. The recording was played to the jury and the transcript of the interview was marked as MFI 3.

132. Following the playing of the recorded interview, the complainant was asked further questions in chief by the Crown. Also tendered was a bundle of photographs of the apartment and bedrooms taken by police (see Tab 7 to Ex A).

133. Cross-examination of the complainant commenced after the morning tea adjournment on 18 March 2021 (see from T 41.09, 18 March 2021). The cross-examination explored: whether the applicant was in a position of authority with regard to the complainant (her evidence being that the applicant did not exercise any authority over her at all (T 42.5, 18 March 2021); and the complainant agreeing with the proposition that it was accurate to describe the applicant as “merely [her] mother’s husband who lived with [her] in the same apartment” (T 42.7-10, 18 March 2021)); the position of the girls in the applicant’s bedroom (the complainant could not remember whether there were blankets on top of both girls (T 53.29-31, 18 March 2021)), the available lighting (the complainant said there was a lamp in the bedroom giving off sufficient light to see (T 53.33-42, 18 March 2021)); whether the complainant had difficulties with her vision and whether she was wearing glasses (T 53.44-54.38, 18 March 2021); differences in the complaints (for example, the complainant not mentioning the applicant trying to pull down her pants in the 000 call (T 59.07-29, 18 March 2021)); whether she could describe anything about the applicant’s penis and how it appeared (the complainant said “No, I didn’t see it clearly, no” (T 55.8, 18 March 2021)); and as to the sleeping arrangements in her house (the complainant agreeing that she did not usually sleep in her parents’ bed (T 64.35, 18 March 2021)). The complainant was also cross-examined about her version of what had happened in the bedroom and in the bathroom.

185. It is noted that Gageler J’s description of the test (to which Beech-Jones CJ at CL referred in the passage above) was analysed and adopted by N Adams J in Tomlinson, at [120]-[139] and Beech-Jones CJ at CL in AK v R at [3]-[4]. Reference is also made to BQ v R [2023] NSWCCA 34 at [241] (Davies and McNaughton JJ, R A Hulme AJ); Saunders at [92]-[93] (Simpson AJA, with whom Hamill and Ierace JJ agreed); Davis v R [2017] NSWCCA 257 (Davis v R) at [59] (Price J, with whom Hoeben CJ at CL and Schmidt J agreed).

186. Addressing the arguments raised by the applicant to the effect that he had a positive defence of mistaken identity available and was deprived of an opportunity of an acquittal (see the applicant’s written submissions at [6]), the Crown says the following.

187. First, as to the complaint that the applicant was not advised as to the importance of giving evidence and the possible detriment of not giving evidence in his case, and that his trial lawyers did not sufficiently take instructions from the applicant, the Crown submits that the evidence does not establish this.

188. Second, as to the argument that the defence case based on the applicant’s instructions was not put to witnesses during the trial by defence counsel, the Crown notes that the construction of a defence case does not require every defence fact or hypothesis to be put to every witness. The Crown says that the issue as to the sleeping arrangements was put to the complainant and nothing more needed to be done to shore up an uncontroversial fact, which was consistent with the description of sleeping arrangements of the complainant and the applicant in evidence in the trial (and it is noted that there was no dispute that the complainant was asleep on the applicant’s bed at the time of the incident). The Crown contends that questioning as to the possibility of mistaken identity was not a matter on which the complainant, or the other witnesses, could reasonably answer questions. It is noted that questions that sought to elicit information concerning the applicant’s state of mind would have been inadmissible; and any answer to such questions would be entirely speculative. The Crown says that no factual scenario is demonstrated which would objectively reveal the mistake of identity in the mind of the applicant contended for (for example, evidence to suggest that the applicant made some such exculpatory comment about mistake at the time). The Crown says that there was no meaningful forensic advantage in asking the witnesses to speculate; and that an obverse risk existed in that if a negative answer was given it would be prejudicial, even if it was not particularly relevant (referring, by way of example, to La Rocca v R [2021] NSWCCA 116 at [130]-[135] per Adamson J, as her Honour then was).

189. The Crown points out that there was cross-examination as to objective matters that could impact in the use of mistaken identity (such as cross-examination regarding the poor lighting and that the complainant was under the covers at the time). The Crown says that there was no obligation to put the possibility of mistaken identity directly to witnesses and there were discernible objective reasons not to do so. It is submitted that no practical injustice or miscarriage is established.

190. As to the complaint that the so-called “established sexual practice” was not put to the complainant’s wife in cross-examination, the Crown says that there are observable objective reasons which explain this course: that the topic in its essence is one which can be expected to be deeply embarrassing; and that such a line of questioning would be extremely risky, of marginal relevance, and, if denied, highly prejudicial to the interests of the applicant. Additionally, it is noted that the complainant’s mother had generally supported her daughter in making the allegations against the applicant, which the Crown suggests made the prospect of negative answers even more likely. The Crown says that it was entirely sensible for the proposition not to be put, or the topic not to be explored in the hearing.

191. Third, as to the applicant’s complaint that he did not give evidence in his trial despite wanting to do so, the Crown points to the evidence of Mr Martin (as to the advice given in relation to this issue) and the Crown argues that it is apparent in any event that, on the face of the record, calling the applicant at trial was problematic. It is said that a series of cross-examination topics would have repeated and emphasised parts of the evidence which were already prejudicial, beyond the mere allegations. The Crown submits that at least the following topics would have been problematic: the clear admissions in the ERISP to the acts and the wrongfulness of them; the applicant saying in answer to a question from his wife about what he had done (“So what, what are you going to do about it?”); and the applicant’s conduct in preventing the complainant and his wife from leaving the bathroom.

192. The Crown submits that, although there may have been some forensic value in the applicant giving evidence that he was mistaken about the identity of the person in the bed which his trial counsel had raised by inference, the prejudice which could have arisen from cross-examination is likely to have outweighed any advantage. It is submitted that the decision not to call him was objectively rational and, at least, it was rationally open; and that no practical injustice arises.

193. Fourth, as to the complaint that defence counsel did not close to the jury on the instructions given to him and only “touched upon” the mistaken identity defence, the Crown argues that defence counsel squarely raised the mistaken identity issue by inference: by making submissions in closing concerning the ERISP, including whether they had asked who was under the covers; and that the defence counsel invited the jury to infer mistake because the acts occurred in the applicant’s bedroom where he and his wife slept. The Crown says that the applicant’s own interview was unclear about whether he knew where his wife was and the question of who was under the covers was not put to him; and that the interview did not establish that he knew it was the complainant before she told him to stop. It is noted that defence counsel suggested the jury could not be satisfied that the applicant knew it was the complainant, saying (at T 260.22-31, 24 March 2021):

So, all of it points to the fact that the Crown have not negated as a reasonable possibility, they haven’t negated this possibility, which is reasonable, that the accused didn’t know that the person in the bed under the covers was [the complainant] until she woke up and told him to stop. Now if that’s the case he can’t be deliberately directing his actions towards the complainant, and that’s a key and central aspect of this case. And it’s not enough that you suspect something, it’s not enough that you believe or have grave suspicions about it, you have to be satisfied that he knew and deliberately directed this conduct to someone he knew was [the complainant] at the time.

194. While the Crown accepts that the applicant did not rely on his own evidence to mount a positive case for mistake, it is submitted that a case was reasonably made by inference and was put to the jury in the closing address by defence counsel.

195. Insofar as the applicant asserts that the trial judge expressed confusion as to the nature of the defence (see the applicant’s written submissions at [38]-[39]), and the trial judge during the defence closing address interrupted submissions for purposes of ensuring accuracy, the Crown notes that it was towards the end of the trial, the cases had closed, and the jury was simply to be directed as to the legal bases to return verdicts one way or the other.

196. The Crown submits that the positive defence that the applicant asserts on appeal should have been explicitly run at trial strains credulity; it is submitted that this defence is redolent of dissembling and blaming others (see the Crown’s submissions at [95]).

197. Finally, it is submitted that should the applicant’s appeal succeed, an order setting aside the conviction in count 2 would be made (under s 6(1) of the Criminal Appeal Act). The Crown contends a remittal order ought to be made, and the discretion as re-prosecution should remain with the statutory holder of power (being the Director of Public Prosecution) (referring to the considerations relating to remittal are described in Gilham v R [2012] NSWCCA 131; (2012) 223 A Crim R 22 (Gilham) at [648]-[660] per McClellan CJ at CL, affirmed in WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 at [93] per Beech-Jones J, as his Honour then was, with whom Payne JA and N Adams J agreed). The Crown submits that the following factors militate in favour of remittal: it was only the first trial listing; the evidence was cogent; the offence subject of appeal consisted of sexual offending against a child; the complaint on appeal is not about the evidence or directions, but about the conduct of the trial; the interest of the public in properly prosecuting offenders, particularly in this class of crime; the public interest in decisions about prosecution being left to executive government (a discretion held by the Director of Public Prosecution). It is accepted that, against those factors, is the fact that the sentence of the applicant will have expired before retrial; and the imposition of the stress of a retrial on the applicant.

198. Further, the Crown says that, on possible resentence, if a conviction is set aside, a consequential order relating to counts 3 and 4 is required. It is noted that the sentence imposed on count 2 is an indicative part of an aggregate sentence (the others being counts 3 and 4). It is noted that this Court holds a power to resentence or remit related matters for resentence by the District Court (see s 7(1) of the Criminal Appeal Act; AW v R [2023] NSWCCA 92 (AW v R) per Mitchelmore JA at [64]-[67] (with whom Davies and Hamill JJ agreed)); and that the question of resentence or remittal is very much case dependent (see AW v R at [66]).

199. In this matter, the Crown says that the differing nature of the offences and the relevance of the finality of the convictions to any later trial, suggests that there should be a resentencing if the appeal were to be upheld. The Crown submits that on any resentence, the material below and the reasons of the sentencing judge are adopted as suitable, including the starting date for sentence; and that the indicative sentences to be imposed on counts 3 and 4 should not exceed those imposed below (as an aspect of the ceiling principle).

Determination

200. Where incompetence of trial counsel is alleged, the question is whether what did or did not occur at trial occasioned a miscarriage of justice (see Nudd at [12] per Gleeson CJ; TKWJ at [79] per McHugh J; Ali v R [2005] HCA 8; (2005) 79 ALJR 662 at [18] per Hayne J).

201. As a general rule, a party is bound by the conduct of his or her legal representatives (R v Birks (1990) 19 NSWLR 677 (Birks) per Gleeson CJ at 683). In the present case, there was a clear forensic choice made by the applicant in the conference with Mr Martin that occurred in the court room dock on 23 March 2023 (as he accepted in effect in cross-examination in this Court – see at T 32.21-23, 17 July 2023), the applicant accepting that he had been asked to make a decision as to whether to give evidence and understanding that he could give evidence up until the end of the trial (T 32.40-44, 17 July 2023; the applicant having been shown Annexure F to Mr Martin’s affidavit). It cannot be said that this was the product of some irrational decision or incompetent advice. There were, as the Crown notes, obvious risks in the applicant giving evidence before the jury and the evidence of Mr Enright suggests that the applicant was not willing to expose himself again to cross-examination by the Crown after his experience on the voir dire. What here appears to be the case is that, having seen the outcome, the applicant regrets the decision that he made at the time.

202. This is not to my mind a situation where there can be said to have been “flagrant incompetence” of counsel or instructing solicitors. Mr Enright took a proof of evidence from the applicant. True it is that he did not have access to, or read, the previous solicitors’ notes of the instructions that the applicant had given them; but it cannot be said that he did not attempt to obtain instructions from the very source (albeit in the 22 January 2021 telephone conference) and the inconsistencies with the ERISP emerge clearly enough from his note of those instructions. I accept Mr Martin’s evidence that he did read the notes (and indeed gave consideration as to how the issue of the alleged sexual practice could properly be explored in cross-examination of the complainant’s wife and in determining whether the applicant would be advised to give evidence). This is not a situation where there has been such a failure to ascertain instructions such as to amount to flagrant incompetence, or otherwise giving rise to a miscarriage of justice (see TKWJ at [80]-[81] per McHugh J; Nudd at [16] per Gleeson CJ; [24]-[25] per Gummow and Hayne JJ). As to the advice whether or not to give evidence, it is to my mind an overstatement to suggest that the applicant should have been told that, without giving evidence himself, it was inevitable that his defence would fail. It is important to remember that at this stage of the trial the applicant was also facing count 1 on the indictment (the touching offence).

203. The invidious forensic position that the applicant was in is demonstrated by the evidence that Mr Martin gave in this Court in re-examination (see T 70.33-71.30, 17 July 2023):

Q.   But Mr Martin, there’s indications from the applicant that he had a view about his end of the relationship with his wife?

A.   Yes.

Q.   It’s been put to you that you didn’t actually put that to his wife in the trial?

A.   Yes.

Q.   And that accords with the trial transcript?

A.   Yes.

Q.   Did you think about putting that to his wife?

A.   I did think about how to raise that issue. The difficulty was, his personal expectations or thoughts are something that only he could give evidence of, where his wife was in a bathroom being quite physically ill, and I think some of the evidence was that she’d locked herself in that bathroom. My view was that there were aspects of his evidence or aspects of his case that only he could give evidence about. Otherwise you’d be putting - asking witnesses to go into his mind about what he was thinking or expecting, and that was one of difficulties, where there had been - in amongst the difficulty that he had admitted to masturbating in the ERISP and the difficulty of trying to put a contradictory position to his ERISP to a witness.

GARLING J   So there would also be this difficulty wouldn’t there? I invite your attention to page 21 of the evidence bundle and go to the last paragraph which is applicant’s account given to his former lawyers which came through in due course. “I was not impressed to find the complainant in my room and gave her a nasty look when she saw me undressed. [She] softly said ‘stop touching yourself’”. So plainly there was in his mind a comment which could only have referred to him masturbating?

A.   Yes and that caused me a great deal of difficulty running a case that he didn’t masturbate at all where there--

GARLING J   Well, it would [be] contrary to your instructions?

A.   Yes.

GARLING J   Contrary to what he told the police, is that right?

A.   Yes, your Honour.

GARLING J   It’s a very hard thing to put to a witness?

A.   Yes and I struggled and grappled with it and had great difficulty with it as to I did give it considerable thought and it was really a sort of a catch 22 situation where I felt a duty to not put a contradictory case or try and mislead. I was concerned about running a misleading case or putting a contradictory case and the ramifications that might happen if you put a proposition to a witness yet there is different material for example in the ERISP. I thought that they prejudice him.

204. In Birks, Gleeson CJ said (at 686) that:

The failure to deal with the matter was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better. This was not a matter of taking a calculated risk. The barrister simply did not know what to do, and so, until it was too late, he did nothing.

205. Counsel’s conduct is to be examined objectively, from the record of the trial (see Nudd per Gleeson CJ at [9]), and the relevant standard is whether the conduct was “incapable of rational explanation on forensic grounds” (Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 at [415] per Bathurst CJ, R A Hulme and Beech-Jones JJ; citing Nudd at [16] per Gleeson CJ; Hanna at [17] per Basten JA).

206. In light of the passage above, it cannot in my opinion be said that there was incompetence of counsel in the decision that the defence counsel here made, which was not to explore the so-called “established sexual practice” line of questioning. When it comes down to it, that so-called practice was evidenced by nothing other than the instructions that the applicant’s wife was often “playful” after drinking or would demand sex (and was “unforgiving” if he was unable to perform). There is nothing to support the conclusion that this was a bilateral practice (as opposed to the applicant’s perception of the situation) and nothing to suggest it was more than an assumption on his part. There was certainly nothing to suggest that the practice encompassed masturbation in advance of such sexual practices.

207. As made clear in Birks, it is insufficient for an applicant “simply [to] point to some failing, even a gross failing, of the legal representative who appeared”; rather, what must be demonstrated is that what did or did not occur affected the outcome of the trial (see Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429 at [155] per Bathurst CJ, Bell P, as his Honour then was, and Johnson J; citing Davis v R at [59] per Price J, with Hoeben CJ at CL and Schmidt J agreeing). Ultimately, there is nothing to support the conclusion that if the complainant’s mother had been asked questions of the kind that the applicant now suggests she should have been asked, the outcome would have been different.

208. The position was always the case that if the applicant was to contest the allegations made against him other than by impugning the credit or reliability of the complainant, then he had to give evidence because the accounts of the complainant’s mother and boyfriend corroborated the complainant’s evidence; and, apart from the lack of reference to the touching, so did the 000 call made at the time. A mistaken identity defence of the kind here suggested would have had the difficulty of inconsistency with the account given not only in the ERISP (and in the face of inconsistent instructions as to whether or not the applicant was in fact masturbating at the time this would have been a difficult path to tread).

209. Further, the reliance placed on the attempts by the trial judge accurately to encapsulate the applicant’s defence in the summing up do not assist the applicant to establish incompetence of counsel of the kind alleged (see Nguyen v R [2022] NSWCCA 126 at [64] per Beech-Jones CJ at CL, with whom R A Hulme and Adamson JJ agreed). In large part, they seem to reflect the difficulty with which the applicant’s positive defence of mistaken identity would have been faced.

210. The ground of appeal is not established, and no practical injustice has here been demonstrated. Leave to appeal should be granted and the appeal dismissed.

211. GARLING J: The comprehensive, thorough and detailed recounting of the applicant’s instructions and the course of the trial in the judgment of Ward A‑CJ, for which I express my gratitude, means that I can be succinct in these reasons.

205. I agree with Ward A-CJ that leave to appeal should be granted and that the appeal ought to be dismissed. The applicant has no justifiable basis to complain about the conduct of his trial by his lawyers. No miscarriage of justice has been established with respect to his conviction on Count 2.

206. Before this Court, the applicant advanced a case on Count 2 which was simply unbelievable, and which was inconsistent with previous instructions which he had given.

207. The Crown case on Count 2, in brief, was that whilst the complainant and his sister were asleep in the bed of the applicant and his wife, the applicant entered the bedroom after many hours of drinking alcohol, stood next to the bed, dropped his trousers down to his thighs and commenced masturbating whilst his penis was visible to the complainant. The complainant told the applicant to stop, which he did, although the length of time after the request until he stopped is not clear.

208. The complainant left the room and made an immediate complaint to her boyfriend and then her mother. The applicant was asked to explain himself and did not deny any detail recounted as to what happened. Rather, he was concerned to know what the complainant and the mother were going to do about it.

209. The applicant told police in a recorded interview that he had attempted to masturbate next to the complainant, but not “in front” of her. He could not give any explanation to police for his conduct, nor did he attempt to justify it.

210. At the time of his conduct, the applicant’s wife, who was also significantly inebriated, was in a bathroom in the apartment being sick. The applicant told police that prior to his conduct he had looked for his wife, and that she was in the bathroom, which was not the bathroom which was an ensuite to their bedroom.

211. The applicant agreed with police that what he had done was “very bad” and was “not normal”. He did not suggest to police that he was acting in the mistaken belief that his wife was already in their marital bed expecting to have sexual relations with him, nor that he was preparing himself for such an encounter.

212. In his affidavit filed in this Court in support of this application, the applicant gave an entirely different account of what had occurred. He said that he had not removed any of his clothes, that his penis was at all times within his pants, and that he touched his penis from the outside of his pants. He said that the complainant then sat up, left the bed and the room. This account was wholly inconsistent with the complainant’s account and the account which the applicant had given to the police.

213. In this Court, senior counsel for the applicant argued that his conduct was undertaken to prepare himself for engaging in sexual relations with his wife whom he expected to be in bed or else would shortly come to bed. His case was that he did not expect the complainant to be in the bed.

214. When giving instructions to his first set of lawyers, the applicant deposes that he gave an account similar to that set out in his affidavit in this Court. However, the notes of Ms Eljiz, his first solicitor, record that the applicant told her that, in the context that he thought the person in the bed was his wife, he started undressing and attempted to masturbate in order to achieve an erection. His assumption about the presence of his wife was based on the fact that he could not find her elsewhere in the apartment.

215. In further instructions to his initial team of lawyers, the applicant maintained that he only touched himself through his clothes and so it was impossible for the complainant to have seen his penis.

216. The instructions which were given to his second legal team are recorded at [77] above. I note that this version of events, namely, before anything at all untoward occurred, he pulled the blanket from the bed and discovered that his wife was not in it, but that the complainant was, had not been previously given, either contemporaneously, or else to his first set of lawyers. In his affidavit in this Court, the applicant denied giving such instructions to his second set of lawyers, notwithstanding the existence of a contemporaneous note taken by Mr Enright confirming those instructions.

217. He also gave another version to trial counsel that he went into the bedroom looking for his wife, but instead finding the complainant. He said “I did not do anything” and, later when pressed by trial counsel, his instructions were “I did not masturbate”. The content of the applicant’s affidavit in this Court is inconsistent with those instructions.

218. As noted in Ward A-CJ’s judgment, the applicant, having received advice, and having had the opportunity of considering that advice, made an election not to give evidence during the trial.

219. As it seems to me, in summary, the position is this:

1. the applicant was confronted with the evidence of the complainant which clearly established the necessary facts to prove Count 2. That evidence was corroborated by immediate complaint to the complainant’s mother and boyfriend;

2. the applicant at first did not deny or seek to excuse his conduct when confronted by the complainant and her mother, and within a few hours, had told police investigators in a formal interview that he had attempted to masturbate, and that what he had done was not normal and was very bad. He did not give any rational explanation as to how this had occurred; and

3. the applicant gave conflicting instructions to his various lawyers, ranging from:

1. that he did undress and commence to masturbate, but thought that his wife was in bed expecting him;

2. that he removed the blanket and found that the complainant was in the bed, and that she then left and nothing happened; and

3. that he had not undressed at all, or exposed his penis in any way, but touched himself through his clothes.

227. On all the versions, the applicant was well intoxicated on the evening. The intoxication, he accepted, had affected the accuracy of his memory.

228. In this Court, the applicant deposed to a version that he had remained fully clothed and had only touched his penis from outside his clothing. This version had clear inconsistencies with the other versions he had given.

229. If the applicant wanted the jury to consider the version of facts which he now advances, it was necessary for him to give evidence about that version. He was specifically advised about this necessity by his counsel. He chose, after a period of consideration, not to give evidence before the jury. Unsurprisingly, he was convicted of Count 2.

230. The applicant in my view is now seeking, in circumstances where he has been convicted after a properly conducted trial, to advance a case theory which was not, and could not be, advanced at trial because of his considered choice not to give evidence.

231. The version now sought to be advanced is inconsistent with earlier versions given to police and his lawyers. It is inconsistent with his conduct when he was confronted by the complainant and her mother (his wife) with her account of what occurred which he did not deny. The applicant provides no acceptable explanation for these conflicting versions.

232. The applicant had a fair trial, and his counsel conducted the case on the basis of his instructions. The applicant has not demonstrated any miscarriage of justice.

233. For these reasons, I agree with the orders proposed by Ward A-CJ.

234. WILSON J: The difficulty faced by the applicant in the conduct of his trial was one of his own making; nothing in the record of the trial or the evidence placed before this Court establishes that fault lay with his lawyers.

235. The applicant gave differing accounts of the relevant events with significantly contradictory detail. Some of his instructions to his legal representatives were even internally contradictory, an example being the instructions the applicant gave to Ms Eljiz, extracted in the judgment of Ward ACJ at [66]. On that occasion the applicant told his lawyer that he “did not at any time masturbate”, that he started undressing and was “trying to get an erection”, and that he “did touch” himself. He gave accounts of his penis being exposed; and also fully covered by his clothing; and of knowing that his wife was in the bathroom, and believing that she was in their bed. The explanation for those contradictions advanced from the Bar Table – that they were explained by the applicant’s poor English language skills – is not persuasive in circumstances where both police officers and the applicant’s lawyers experienced no difficulty in communicating with him in English.

236. The applicant’s legal representatives at trial were constrained to present his case in accordance with his instructions, leading to the difficulty trial counsel referred to in evidence to this Court (set out at [203] of the judgment of Ward ACJ).

237. As Ward ACJ concluded, there was no miscarriage of justice. I agree with the orders the Presiding Judge proposes, for the reasons her Honour has given.

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Decision last updated: 01 September 2023