Knowles (a pseudonym) v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0146

TOM KNOWLES (A PSEUDONYM) [1]

THE QUEEN

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	ASHLEY, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 and 22 MAY 2015
DATE OF JUDGMENT:	9 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 141
JUDGMENT APPEALED FROM:	DPP v [Knowles] (Unreported, County Court of Victoria, Judge Chettle, 5 December 2013)

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CRIMINAL LAW — Conviction — Application for leave to appeal against conviction —Whether evidence of child complainant impermissibly procured by leading questions during VARE interview — Whether verdict of jury unsafe and unsatisfactory having regard to complainant’s evidence — Application for leave to adduce ‘fresh’ evidence — Whether evidence ‘fresh’ — Conduct of trial counsel — Whether trial unfair or productive of miscarriage of justice — Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Doogue O’Brien George Lawyers
For the Crown	Ms D I Piekusis	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY, REDLICH and PRIEST JJA:

On 25 October 2013, after deliberating for a day, a jury in the County Court found Tom Knowles guilty of three charges involving child sexual offences. On 5 December 2013, the judge imposed a total effective sentence of seven years’ imprisonment and fixed a non-parole period of five years’ imprisonment.

Grounds

Knowles now seeks leave to appeal against conviction; and, if leave is granted, that his appeal be allowed. After protracted discussion with the Court on the first day of hearing, his counsel finalised the grounds of appeal as follows:
1.A substantial miscarriage of justice was caused because that part of the complainant’s evidence that related to count 1 (vaginal penetration) was procured by leading questions and not addressed by directions to the jury.
2.The verdict of the jury was unsafe and unsatisfactory having regard to the evidence of the complainant.
3.A substantial miscarriage of justice occurred because of the failure of applicant’s counsel to adduce evidence from [‘J’] in the trial of the applicant.
PARTICULARS
(a)       Vagina oil;
(b)       Small dildo;
(c)       Abuse by [complainant’s father]:
(i) Similarities between abuse of complainant   and that suffered by J.
4.The evidence of J should be received on appeal and would, if accepted, give rise to a substantial miscarriage of justice.
Circumstances

The Crown case, accepted by the jury, was that on the night of 24 August 2012, whilst the applicant was babysitting the two children of his partner J (respectively, her niece and nephew, because the children’s father was her brother), he entered the niece’s bedroom, she being a child then aged 5 years and 11 months, and, whilst there, digitally penetrated the child’s vagina,[2] digitally penetrated her anus[3] and masturbated to ejaculation in the child’s presence.[4]
[2]Charge 1, sexual penetration of a child under 16 years, s 45(1) Crimes Act1958.
[3]Charge 2, sexual penetration of a child under 16 years, s 45(1) Crimes Act 1958.
[4]Charge 3, indecent act with a child under 16 years, s 47(1) Crimes Act 1958.

The main evidence adduced by the Crown was from the complainant and her parents. Significant evidence was also given of forensic investigations.

The complainant’s evidence in chief, given by way of a recorded VARE interview (‘the interview’), was that the applicant came into her room during the night of 24 August 2012. She was sleeping on a top bunk. The applicant climbed the ladder to where she was sleeping. There, he successively engaged in the conduct the subject of the three charges.

According to the evidence of the parents, the complainant first spoke to her father the following evening, in the course of explaining why she was then tired. She described the penetration of her vagina and anus, and she described in words and by gestures, male masturbation. She showed her parents spots on the fitted sheet of her bed which, later investigations showed, were ejaculate produced by the applicant.

According to the parents’ evidence, they questioned her at length before they were prepared to accept her story. Then they arranged for her to be interviewed by the police. That interview took place on Sunday, 26 August 2012 in the early evening.

The VARE interview

In the course of the interview, there were the following questions and answers:

Q 105So if I asked you if he touched your inside of your vagina, would you know what that means?
AYeah. He touched me where you wee from.
Q 106O.K.
AAnd your, where the baby comes from.
Q 107Where the, O.K. And did his fingers go inside you, did they?
AYes.
Q 108Yeah.
AAnd he wanted to take all the oil off of my vagina inside and put it in his hair.
Q 109Tell me about the oil
AOil. It’s wet. My vagina’s wet because I wee and then some oil, special oil goes over there inside and that’s O.K because it will help your vagina get better.
Q 110So where did the oil come from?
AWhen I wee it comes and the good stuff goes inside of my vagina and it goes back into my hole.

and, later —

Q 186I just need to clarify, I know you said this a couple of times but can you explain to me the difference between the wee and the oil that you said that was on your vagina?
AO.K. The difference, when I wee in the toilet some oil comes in, out, and it goes separate, my vagina, my wee, so it goes on the inside and then it quickly goes …….. and he quickly put his hand in and that’s how he got the oil.

It can be seen that in those answers, the complainant referred to ‘the oil off of my vagina’, of which she said, ‘It will help your vagina get better’.

The applicant’s record of interview

The applicant was interviewed on Monday 27 August 2012. He gave this general account of events:

Q 17Wherever you like. At the very start, is probably the - - -?
AFrom what I can gather has happened so far that I’ve heard of, apparently things took – wrong words to say. I’m not really sure how to say it. Not very good at talking. Well, from that night, from what I can gather, they’ve spun that completely out of control. And what I was doing was, I was having a masturbation in their lounge room. [The complainant] came out and she obviously saw what I was doing. As I was finishing up, trying to clean up, I was, facing their back door. And when I turned around, she asked what I was doing. And I was – said I was just playing with my doodle. And she goes, “Okay”. So I was like, “Get back to bed”, she – and walked her to her bed. She laid on her top bunk. I basically lent on the top bunk, and obviously things took a turn for the worse from there, from what I can gather.
Q 18Tell me about that?
AFrom what I heard, they think that I touched her and they touched me, from what I – yep. That’s basically all I know.
Q 19Okay. So if you can go from the very start. Tell me sort of where you were and who are you talking about and all those things, and what happened - - -?
AOkay, yep.
Q 20And when this all occurred.
ALike, the time as well?
Q 21Yep.
AOkay. Don’t really know the time, but I was sitting in their family room watching TV.
Q 22Yep.
AJust decided to have a masturbation. And just as I was finishing, [the complainant] came out and didn’t really have time to clean up properly. Tried to do the best I could, and after that, cleaned up. She asked what I was – like, do you want me to repeat myself?
Q 23Yep.
AOkay. She asked what I was doing, and I said I was touching my doodle. She asked why. I said, “To make myself feel good. Just don’t worry about it, go back to bed”. I followed her to make sure she did. She climbed up. I climbed one of the ladder rails, leant on the bed with my elbow and my ribs and yeah, waited till she closed her eyes, and then I quietly left.

The applicant stated that he cleaned up the ejaculate by wiping it onto his ‘hoodie’. That is how he explained, in effect, traces of his semen being found on the complainant’s bed and adjacent to her bed. On his account, the semen on his hoodie must have been inadvertently transferred there whilst he was attending to the complainant.

Further according to the applicant’s statement, the complainant had seen some sperm on his hoodie and he had explained it by saying, ‘That’s just white stuff that makes babies’. Thus he gave an account of what he said to the complainant which generally matched her account. But on his version it took place in radically different circumstances to those described by the complainant.

The applicant was asked whether he had babysat the complainant and her younger brother before. He said that he had done so ‘heaps of times’, both by himself and with his girlfriend, J. He stated that on the previous occasions when he had been by himself when babysitting, he had not felt the necessity to masturbate.

It was put to the applicant that, apart from the immediate area at the top of the bunk, there was no reason why his semen would be anywhere else in the bed. The applicant agreed. The question was relevant to the place on the undersheet where the semen traces were found. There was at least very considerable difficulty in reconciling his account with that place.

The applicant said nothing, when interviewed, about a circumstance of which he gave evidence at trial. Whilst he said that he masturbated when in the lounge room, he did not say that he did so whilst watching a pornographic movie.

The applicant was not asked any question to do with the complainant’s statement when interviewed that the applicant had said that he wanted to ‘take all the oil off of my vagina inside and put it in his hair’.

The ‘vagina oil’[5] evidence

[5]In these reasons, we will use the term ‘vagina oil’ consistently, although the complainant’s VARE interview and the evidence of the parents did not always use that precise form of words.

We have set out those passages in the complainant’s interview in which she referred to vagina oil. We have mentioned also, briefly, evidence given by the parents at trial about that matter. It is necessary, however, having regard to the way in which the appeal developed, to say more about the evidence given at trial concerning that matter; and about matters pertaining to that evidence.

The complainant was not cross-examined at all about her attribution to the applicant of what appears to be a statement that ‘he wanted to take all the oil off of my vagina inside and put it in his hair’. That she intended to recount a statement was, we think, confirmed by her saying, immediately thereafter, that the applicant had gone home, ‘quickly put it on’, ‘had a shower’, and ‘he look so handsome’. The fact that this was obviously elaboration does not touch its present significance.

The complainant’s mother gave evidence of a conversation with her daughter on the evening following the incident. She gave no evidence in chief that the complainant had said anything about vagina oil.

Extraordinarily, as it seems to us, the witness was pressed in cross-examination as to whether her daughter had said anything else in the conversation. The witness eventually said:

There was something about vaginal oils that she did say later on. … I don’t remember too much detail. I just remember her saying vagina oil and thinking that was something very weird to say. I’ve never heard her say anything like that. … She mentioned [the applicant] talking about her vagina oil and that – that’s all I can recall, sorry.

This cross-examination led on to a successful application by the Crown to adduce evidence of what the witness had said in a police statement about the matter. The relevant part of the statement, adduced in re-examination, was as follows:

She also said something about [the applicant] touching her inside her vagina with his fingers and trying to remove her vagina oil. I can’t remember what she actually said but I remember the words “vagina oil” because I had never heard of that before.

The child’s father gave evidence of a conversation which he had with his daughter on the evening following the incident. His evidence was, in part, ‘She said that he wanted her vagina oil’. He said that he had not heard his daughter ever mention the term ‘vagina oil’ before.

The witness was not cross-examined about that evidence.

The applicant gave evidence. In examination-in-chief, he said nothing about the particular matter. He was cross-examined as follows:

Have you ever spoken to her about vagina oil?---No. I do know that that is a term that [the mother] has used in the past when [the complainant] had a bad case of thrush.
Well, that was never put. Do you know what I mean when I say put? That was never suggested to [the mother] that she had used that term before, was it?---No.
And [the mother] and [the father] gave evidence that, well [the father] certainly gave evidence that she had never used a term like that?---Well, to be bluntly, I think they’re lying.
Did you tell your barrister that?---No.
Sorry?—Oh yes, I did, that I think they’re lying. Yes.
And did you tell him before they gave evidence?---Yes.
Sorry. So when do you say you have heard the term vagina oil before?

---From [the mother].
In what context?---Um, we’ve – we, um, found out that, um, [the complainant] had a bad case of thrush.
Yes?---That she was constantly scratching down there.
Yes?---Um, I’ve asked, “what’s wrong?” and she said that she had a bad case of thrush. Um, I was like, “Well, have you, um, medicated that?”. And she’s like, “Yes”. And I’ve also told her things of – things that will happen to help the thrush.
You’ve had a conversation with [the complainant] about her thrush?---No, [the mother].
With [the mother]. You have offered advice to [the mother] on how to help with [the complainant’s] thrush?---Yes.
And sorry?---Because - - -
And how does that fit in with the vagina oil comment?---Um, [the mother] said to [the complainant], [the mother] told me that she told [the complainant] that there is a, like an oil base germ in the vagina to help, um, get rid of infections and stuff.
An oil base what, sorry?---An oil base substance. I – I can’t really - - -
It’s not called vagina oil though, is it?---No.
No?---But she – she used that term, vagina oil.
You are saying [the mother] used that term?---Yes.
And when was this?---Ages ago. This was maybe a year before this incident. And other people of – that I know have heard [the mother] explain this as well.
And you told all this to your barrister prior to this court case?---Yes, to the court case, like from, uh, county, from this court here.
Yes?---Uh, yes.

The applicant’s cross-examination being part completed, the prosecution raised the rule in Browne v Dunn[6] with the judge. Although the applicant had given evidence about a number of matters which had not been raised in cross-examination of Crown witnesses, the prosecutor placed particular emphasis on the applicant’s evidence with respect to vagina oil.
[6](1893) 6 R 67 (HL).

The judge observed, in the course of discussion, that —

There was no proposition put to [the mother] that – the vagina oil one is a killer.

Trial counsel for the applicant[7] then made it crystal clear, without saying so, that he had not been given instructions to the effect of the evidence which the applicant had just given.
[7]Who was not counsel on the appeal.

The judge was evidently very concerned that the matter had not been put at least to the complainant’s parents. He observed that:

…when both witnesses said this is what blew their mind away when she said this and never heard of it before … all of this at least should have been put to – I’m not suggesting her maybe, but certainly to the parents.

The judge, to make the position clear from his standpoint, added, a little later on:

The vagina oil point is absolutely red hot central.

After the lunch adjournment, cross-examination of the applicant continued. Relevantly, it was as follows:

You also told your barrister about this conversation about the vagina oil with [the mother]?---Yes.
And the conversation about thrush between you and [the mother]?---And my partner, J. Yes.
And your partner J was also party to that conversation, was she?---Yes.

The applicant asserted that he had told counsel about the particular matter, but said —

When I mentioned these things he didn’t think that they were – um, important enough to – um, mention’.

The next question and answer was this:

‘The vagina oil? -- The vagina oil is a different …’.

It was put directly to the applicant that he was making up some of his evidence — doubtless with respect to this matter — ‘on the spot as you go’. The applicant denied it.

The judge resolved that the parents should be recalled, rather than that a Browne v Dunn direction be given. Before the witnesses were recalled, the judge told the jury that there were a number of topics which it might think were important which had not been the subject of cross-examination by the applicant’s barrister. He stated that the applicant had said he had told his barrister about some of them, but not others. In fairness, he was going to permit the Crown to recall the parents.

The relevant evidence which the mother gave, in the course of further cross-examination, was this:

Did you ever have a conversation with [the applicant] about [the complainant] having thrush?---I don’t believe so. That’s not something I would discuss with another male.
Yes, you don’t believe so or you can or cannot remember whether you did or not?---I can’t exactly recall whether I did or not.
You may have?---There’s a possibility he was present when I spoke to [J].
You’d have conversations with [J] about those types of things?---Yes.
And obviously [the complainant] had thrush at some stage did she?---She’d been – yeah. She’s had thrush on and off for the last 18 months.
Was the term, “Vagina oil”, used in relation to thrush?---No.
Was the term – [the applicant] says that he heard the term, “Vagina oil”, from you?---I didn’t hear the term, “Vagina oil”, until my daughter said it.
Well, I put it to you that you said the words, “Vagina oil”, to [the applicant]?

---No.

Perhaps because the vagina oil remark had been attributed to the mother, and because the mother made certain admissions about other matters when further cross-examined (most particularly, that the complainant had seen she and her husband having intercourse), the father was not in fact recalled.

Vagina oil: the situation at close of evidence

At the conclusion of the applicant’s evidence, his counsel announced that the defence case was closed. Assuming that a conversation did take place in the course of the trial to the effect recounted by J, for a reason or reasons unexplained the applicant’s counsel did not call her. Further, assuming that J had made a statement to the solicitor, S, about the matter before trial, the failure of counsel to cross-examine either the complainant or her mother about any relevant conversation, and his failure to adduce evidence from the applicant as to what he knew of the matter, were unexplained.

This remained the situation after the mother had been recalled to give evidence. No application was made to re-open the defence case.

On the evidence adduced, it was inevitable that the jury would conclude that the complainant had accurately recounted what the applicant had said about vagina oil, and that he had said this when he penetrated her digitally. The remark attributed to him was very distinctive, and the applicant’s explanation, which was disputed by the mother and which was otherwise uncorroborated, was late-given. The complainant’s account was not only very damaging to the applicant with respect to charge 1, but its acceptance may very well have led the jury to conclude that he had engaged in recent invention. Such a conclusion was likely to have had a flow-on impact upon the jury’s consideration of the other charges. The potential significance of the late-emergence of the applicant’s explanation was highlighted by the judge selecting it, in his charge, as the exemplar of inferential reasoning — as put by the prosecutor, that it should be inferred that the explanation was made up on the spot.

Grounds of appeal considered

We turn to consider the grounds of appeal seriatim.

Ground 1

Submissions

Counsel for the applicant submitted that the generally applicable rule that a leading question must not be put in evidence-in-chief without leave of the court[8] is applicable to a police officer asking questions in a VARE interview.[9] The risk of injustice is particularly relevant in that context, where there is no opportunity to object.[10]
[8]Evidence Act 2008, s 37(1).
[9]Martin v The Queen [2013] VSCA 377, [34] (Redlich JA).
[10]The Queen v Knigge (2003) 6 VR 181, 197, [30] (Winneke P). See also The Queen v NRC [1999] 3 VR 537, 540 [7] (Winneke P).

Counsel further submitted that where evidence is procured in a VARE interview by leading questions, the evidence should be excluded or at least made the subject of caution to the jury. Whilst counsel rightly conceded that it is permissible for an interviewing officer to clarify the nature of a complaint, or to summarise evidence already given, he relied upon this passage in the judgment of Redlich JA in Martin v The Queen: [11]

Questions that contain suggestions of new allegations, or which seek to “improve” upon the answers to an allegation, or which seek to establish an allegation already denied, are either likely to be excluded or to be given little probative value so requiring a careful direction to the jury.

[11]Martin v The Queen [2013] VSCA 377, [43] (Redlich JA).

Counsel particularly relied upon two passages in the interview. We will mention both of them although overwhelmingly the focus was upon the second.

The first passage was this. The complainant having said that the applicant had climbed up the ladder to her bunk bed, she was asked — ‘And then what happened?’ She answered, ‘Nothing else’. That answer prompted these questions and answers:

Q 92You said before that he touched you.
ATouched me here first.
Q 93Yeah.
AAnd then in the vagina.
Q 94Take a seat. So tell me about him touching your vagina.
AIt very did, it very hurt and he went ……….. really hard, ………. Really hard and played with my bottom then.

The second passage relied upon by the applicant — we have already noted it — was as follows:

Q 105So if I asked you if he touched your inside of your vagina, would you know what that means?
AYeah. He touched me where you wee from.
Q 106O.K.
AAnd your, where the baby comes from.
Q 107Where the, O.K. And did his fingers go inside you, did they?
AYes.

The principal focus was upon question 107 (‘Q 107’).

Counsel submitted that the only unprompted statement that the complainant had made in relation to penetration, prior to Q 107, was that ‘He touched me … in the vagina’ (‘the Q 93 answer’). Counsel submitted that this was equivocal, and that what the interviewing officer subsequently did, by asking the question, ‘And did his fingers go inside you, did they?’, was an impermissible attempt to seek to improve upon the answer previously given. Accordingly, the evidence should have been excluded, or else appropriate directions ought to have been given to the jury. In the event, the judge’s failure to so direct the jury, or to exclude the evidence, caused a substantial miscarriage of justice, the consequences of which extended to the applicant’s conviction on charges 2 and 3.

Counsel further submitted that in cross-examination the complainant had been asked several times, in an open manner, what had happened when under cross-examination. On none of those occasions had she mentioned penetration. The only evidence pertaining to vaginal penetration arising out of the cross-examination had come in these questions and answers: ‘And did you tell the doctor that [the applicant] put his fingers in your vagina and bum?’ ‘Yes’. That prompted the question, ‘You sure?’, to which the answer was, ‘Yes’.

The gist of this submission, put aside the answer to Q107, was that there was a dearth of direct evidence of vaginal penetration.

It was submitted for the Crown that, by the Q 93 answer, the complainant had introduced the topic of vaginal penetration. Q 107 had jogged her memory about something which had happened and which she had recounted to her mother the day before – that is, that more or less contemporaneously with him penetrating the complainant, the applicant had mentioned wanting to take the oil from her vagina and put it in his hair.

Counsel further submitted that it would be open to this Court to substitute a verdict of indecent assault if it concluded that the conviction for sexual penetration on charge 1 was unsafe. Counsel relied upon s 277(1)(c) of the Criminal Procedure Act 2009. There could be no doubt, counsel submitted, that the jury must have been satisfied that the applicant had touched the complainant’s vagina in circumstances that were indecent.

Counsel submitted also that the evidence given by the complainant as to the other offences had been spontaneous and unequivocal, and that any defect occasioned by Q 107 had not affected the conviction on those other charges.

Orally, counsel contended that Q 107, to which particular objection was taken, was not a leading question because the complainant had already stated, in answer to Q 93, that the applicant had placed his fingers ‘in’ her vagina.

Conclusions

The judge ruled against an application, made at the outset of the trial, to exclude Q 107. In his charge, he did not give a direction that the jury should be cautious in attaching weight to the answer to that question. The starting point is to identify the basis upon which the judge dealt with the matter in that way.

The judge asked counsel why was the evidence inadmissible. Counsel replied — ‘Because it’s unfair, leading questions’. He sought the exclusion of Q 107 and the answer thereto. He submitted that ‘The questions [sic] are improper. Not illegal, but improper’. He referred in that connection to s 138 of the Evidence Act 2008 (‘the Act’).

The judge observed that s 138 involved the exercise of a discretion, and suggested that s 137 of the Act was more pertinent to the applicant’s argument. Thus: ‘What you really say is the questions are leading, it’s unfair to admit it, it’s more a …137’.

The application of s 137 has been held not to involve an exercise of discretion, and the judge was implicitly making that point in his observation to counsel.

The judge concluded that the particular question to which objection was taken was not a leading question. It did not suggest an answer; it simply asked what had happened. His Honour then observed: ‘If it’s not a leading question that’s the end of the ball game, isn’t it?’ Counsel assented.

Thereafter, his Honour referred to the evidence of complaint to the mother, saying — ‘If that’s not an allegation of penetration I’ll go he for tiggy’.

The judge concluded, having regard to his opinion that the question complained of was not leading, that the question was ‘appropriate’; and that if counsel had argument with it, that was a matter to be taken up with the jury.

Counsel sought a ruling ‘in a sense’. He described the issue as ‘a discretionary matter for Your Honour’.

The judge said that he was ruling that he would not exclude the evidence.

Although counsel stated that ‘I’m not taking it across the road’,[12] it was not satisfactory that the judge dealt with the application in a way that does not enable this Court to unequivocally understand the basis of his ruling.
[12]That is, to this Court.

Despite this unsatisfactory state of affairs, it can be safely concluded, we think, that his Honour determined that, for the purposes of s 137 of the Act, the probative value of the answer outweighed the prejudicial effect of the evidence being admitted; for he said –

There’s certainly nothing that would warrant me exercising my discretion to exclude it as being unfair.

It seems improbable, to the contrary, that his Honour considered that s 138 of the Act had any role to play in his analysis. Because he concluded that Q 107 was not in leading form, it must have followed — as the matter was argued — that the evidence which it elicited had not been obtained in consequence of an impropriety. It would have followed that the balancing exercise contemplated by s 138 was not enlivened.

The way in which the argument proceeded below was less than satisfactory. It was pertinent whether Q 107 was a leading question, but that was not the end of it. Indeed, it was not the beginning. The first question was whether, before Q 107 was asked, the complainant had already made, in the course of the interview, an allegation of digital penetration of the vagina. If the answer was ’no’ then Q 107, by enquiring after conduct going beyond upon allegations of ‘touching’, was improper. Whilst, in determining the consequences of any impropriety, the form of Q 107 would require careful consideration, counsel went too far in conceding that, if Q 107 was not a leading question, ‘That’s the end of the ball game’.

Against that unsatisfactory background, it is necessary to consider whether a miscarriage of justice was caused because Q 107 and its answer was not excluded; or because, the question and answer not having been excluded, the jury should have been instructed to be cautious before attaching too much weight to the answer given.

It has been held that a question in leading form may be unobjectionable where a person participating in a VARE interview has already broached the subject-matter of the question.[13] Here, for the reasons which follow, there was at least doubt whether that was the situation.
[13]SLJ v The Queen (2013) 39 VR 514, 521-522 [30]-[33] (Redlich JA). And see, both specifically and more generally, Martin v The Queen [2013] VSCA 377 [34]-[44] (Redlich JA).

In our opinion, the answer to Q 93 was capable of being understood as an assertion of penetration. Such an understanding would be consistent with the answer to the next question (‘Q 94’). Although asked in the form of ‘Touching your vagina’, the complainant’s response was ‘It very did, it very hurt…’. Then there is the video-recording of the interview, which the Crown urged the Court to watch. In our opinion, it does not further advance the question whether an allegation of vaginal penetration was being made. In all, in our opinion, the answer to Q 93 provided a basis - but not a particularly firm basis - upon which to argue the propriety of Q 107.

The dictionary to the Act defines ‘leading question’ as meaning, in part:

A question asked of a witness that:
(a) directly or indirectly suggests a particular answer to the question.

It appears to us that Q 107, though nominally framed in an open-ended way, did in fact indirectly suggest a particular answer. That was so in circumstances where, save for the answer to Q 93, the complainant had said nothing that could indicate that her vagina had been penetrated. A number of questions having been asked which otherwise had failed to elicit any suggestion of penetration, in our view Q 107 may have introduced the fact of penetration, critical to charge 1, in a way which suggested the answer sought.

In those circumstances, we think that the ground should be addressed by assuming, as may have been the case, that evidence elicited in answer to Q 107 was obtained in consequence of impropriety (and arguably in contravention of an Australian law, by reason of s 37 of the Act). By s 138, the evidence was not to be admitted ‘unless the desirability of admitting the evidence outweighed the undesirability of admitting evidence that [had] been obtained in the way in which the evidence was obtained’.

In our opinion, having regard to the circumstances overall, the desirability of admitting the evidence constituted by Q 107 and the answer thereto did outweigh the undesirability of admitting that evidence.

First, the evidence was not only of importance, it followed upon the complainant’s answer to Q 93, which may have alleged penetration.

Second, later in the interview the complainant specifically alleged vaginal penetration. See the answer to Q 186, set out at [8] above.

Third, the answer to Q 107 was consistent with a complaint which had been made to the mother on the day after the incident.

We next consider, in the circumstances which we have described, that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the accused. We are not persuaded that the form of the impugned question and the context in which it was asked gave rise to a danger that the jury would attach more weight to the answer than was warranted, so as to require its exclusion under s 137 of the Act.

That is not, however, quite the end of the matter. We agree with the submission of applicant’s counsel that the direct evidence of vaginal penetration was not strong. In all, there were three answers in the VARE interview which were potentially relevant. One answer was, as we have said, arguably ambiguous. The second answer was in response to a form of leading question. Moreover, the complainant elaborated upon that answer by telling the interviewer that the applicant then went to his house, quickly put the oil on, had a shower, and then looked handsome. On the evidence, none of that happened. Only the third answer was unambiguous and plainly proffered. Other than that, there was some complaint evidence. The medical evidence was non-contributory. The jury may very well have attached considerable importance to the answers in the interview.[14]
[14]Indeed, the judge charged that the jury that, before it could convict, it would have to accept the complainant’s evidence beyond reasonable doubt. He charged also that the jury would have to be satisfied beyond reasonable doubt that the applicant’s evidence was not true.

In those circumstances, in our opinion, the judge should have directed the jury to exercise caution before acting upon the complainant’s answer to Q 107. He did not do so. No exception was taken, for the obvious reason that his Honour had ruled at the outset that the question was appropriate, and that —

…it’s really a question of fact that you can run before the jury.’

Had the judge given a considered and properly reasoned ruling, as was required, it may have become evident to his Honour that some cautionary direction was necessary.

The question is then whether his Honour’s failure to give the particular warning was productive of a substantial miscarriage of justice. Upon the evidence which was adduced, the applicant has not satisfied us that an affirmative answer is reasonably arguable. Both within the VARE interview, and in the parent’s evidence of complaint, there was evidence, aside from the answer to Q 107, which bespoke the applicant’s guilt on charge 1. The answer to Q 186, which interrelated digital penetration with the distinctive remark allegedly made by the applicant at the time, was very damaging. As to charges 2 and 3, there was no flow-on effect to be had from an unsafe verdict on charge 1. Moreover, viewed discretely, the evidence with respect to each of those charges was powerful.

Ground 2
Submissions

Applicant’s counsel submitted that the jury’s verdict was unsafe and unsatisfactory having regard to a number of ‘questionable aspects’ of the complainant’s evidence. He contended that there was evidence that the complainant had ‘an established propensity to lie’; a statement by the complainant, early in the course of the VARE interview that — ‘I’m not actually say it my whole – my whole story’s true’. He submitted that, at the conclusion of the interview, the complainant indicated a consciousness that she was immune from any consequences if she lied. He relied upon the fact that the complainant gave false evidence or was otherwise mistaken about a number of matters. They included the applicant not having previously babysat her by himself, the applicant having ‘got poo on his finger’ when he anally penetrated her, her mis-description of the clothes that the applicant was wearing, a statement that she had first complained to her parents on the Friday night, what was said to be prevarication about whether the applicant had bitten her vagina, whether she was wearing underwear under her pyjamas, and her denial that her mother had explained to her the importance of telling the whole truth.

Orally, counsel submitted that if Q 107 of the VARE interview and its answer was excluded, it provided an additional reason why the conviction was unsafe and unsatisfactory.

Counsel for the Crown submitted that, in substance, the case depended upon whether or not the jury accepted the complainant’s evidence as truthful and accurate. The applicant sought to create a reasonable doubt by giving evidence. The jury was not required to accept that account, which materially varied from what he had said in his record of interview, and which, in a number of other respects, was evidently unsatisfactory.

Conclusions

The question to be decided by an appellate court has been described as follows: [15]

[It] is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.

[15]Libke v The Queen (2007) 230 CLR 559, 596-7 (Hayne J, with whom Gleeson CJ and Heydon J agreed).

The answer to that question is to be determined on consideration of the whole of the evidence, not just part of it. On the other hand, at a practical level an appellate court requires identification of what it was which presented – as the applicant would claim - what has been called a ‘solid obstacle to reaching a conclusion beyond reasonable doubt’.[16]
[16]R v Shah [2007] SASC 68 [4] (Doyle CJ).

It was, of course, the obligation of the Crown to establish guilt; and that obligation was not satisfied simply because the jury might reject the evidence of the accused. An unsafe and unsatisfactory ground need not necessarily fail because it can be confidently concluded that the jury was entitled to reject the accused’s evidence.

In the present case, there was clear evidence that in the past the complainant had told a false story about a serious matter. There were plainly inconsistencies in her sequential account of events on the night in question. There were also demonstrable errors in that account, and more than one instance of false elaboration. Those matters might have persuaded the jury that there was a reasonable doubt of the applicant’s guilt on one or more of the charges. But in our opinion there was nothing, on the evidence adduced, which required the jury to have such a doubt. The complainant’s account, as to core matters, was coherent. Remember also that there was evidence of relevant complaint, made at a time proximate to the incident. Significantly, there was the certain evidence that the applicant’s semen was detected on the sheet of the complainant’s bed, and on hard surfaces close by the bed. The complainant gave an account of how the semen came to be on that part of her sheet where it was found. The jury was entitled to wonder how it could be that the complainant would have known of drops of semen on a particular part of her sheet if, as the applicant claimed, the semen must have smeared on the sheet when he was settling her down. One circumstance which was conspicuously not the subject of cross-examination was how it could be that the complainant described a set of circumstances leading to ejaculation onto her sheet which was coherent, and persuasive. In all, in our opinion, there is absolutely no merit to ground 2. It is not reasonably arguable.

Ground 4

It is next convenient to address ground 4. That ground is concerned with the potential impact of J’s evidence had she been called as a witness. Unlike ground 3, it does not focus upon the conduct of trial counsel in not calling J.

The affidavits

J affirmed two affidavits – the first on 3 July 2014, the latter (which expanded upon the first) on 29 April 2015.[17] They were made in support of an application to adduce fresh evidence before this Court, with a view of demonstrating that a miscarriage of justice had occurred.
[17]In what follows, we will refer to the latter affidavit as ‘the affidavit’ or ‘J’s affidavit’.

The gist of J’s affidavit was that she had relevant evidence to give with respect to a number of matters. They were — (1) that the mother had referred to vagina oil, and its healing effect, when speaking with the complainant before the incident, (2) that there were similarities between the father’s account of what the complainant had told him on the day after the incident and her own experiences of sexual abuse inflicted by him upon her when they were children (the inference which, in substance, she invited should be drawn from this evidence was that the father, who she claimed had an animus against the applicant, had somehow persuaded the complainant to give the account of events which she did, whereas the applicant’s account represented the truth of the matter); (3) that the mother had given the complainant a small dildo some time before the incident on 24 August 2012; (4) that the mother had told her of an occasion when the complainant had apparently taken a marijuana ‘bong’ belonging to her father, and had attempted to light it; (5) that the baby-sitting for 24 August 2012 had been pre-arranged, rather than being the subject of a last-minute request; (6) that when she arrived home on the night of 24 August the applicant had given her an account of events which was broadly consistent with the account which he gave in his record of interview;[18] and (7) as to her willingness to make a statement to the police, a willingness which the investigating police officers had not followed up.
[18]Although the account made no mention of masturbation.

In oral evidence in this Court, J reiterated that she had been willing to make a statement to the police before the applicant’s trial came on. She claimed that she had been unaware at relevant times that she had the ability to make a statement though not invited to do so by the investigating police officers. She also gave evidence – see later in these reasons — of having provided relevant information to two solicitors (‘S’ and ‘CM’) before trial, and of providing counsel and CM with relevant information in the course of the trial; and yet she was not called to give evidence.

J’s affidavit was met with an affidavit in response by AP, the investigating police officer who became involved at the time of the initial complaint and whose involvement continued until trial. His affidavit was directed to the question whether J had ever indicated her willingness to make a statement. He deposed that she had initially agreed to make a statement, but had then not done so. He had spoken with her at the committal hearing about the matter. She had then been hostile to the suggestion that she provide a statement. Orally, he stated that he never believed that she could give relevant evidence, that he would have been happy to take a statement from her for completeness’ sake, and that he had never been asked by the prosecuting authority to obtain a statement from her. He was unable to recall any detail of a conversation with J on the second last day of the applicant’s trial – on which occasion, according to J, he accepted that he had not asked for a statement from her at the time of the committal hearing, as distinct from saying (as he claimed) that he was there if she ever wanted a chat.

Submissions

Applicant’s counsel submitted that the prosecution had failed in its duty to adduce all relevant evidence, whether favourable to the prosecution or not, and that a substantial miscarriage of justice had resulted from such failure. Counsel highlighted evidence which J could have given about - (1) vagina oil, (2) the complainant’s previous observation of sexual intercourse between her parents, and (3), the complainant having been given sex education before 24 October 2012, including a demonstration of male masturbation.

Matters (2) and (3) were not dealt with in J’s affidavit. Nor did she address them in her oral evidence. They were, however, put to the mother when she was recalled. She agreed that she had told the applicant and J that the complainant had seen she and her husband having intercourse ‘maybe two, three times’. She could not recall whether ‘issues of masturbation’ had been discussed between her, her husband, J or the applicant. She denied that she had told the applicant that she had demonstrated male masturbation to the complainant. Finally, the mother admitted having discussed with the complainant what might be described as age-appropriate sex education.

It was not put to the mother when she was recalled for further cross-examination that any conversation about masturbation had taken place in J’s presence.

Applicant’s counsel submitted that the only explanation for the prosecution not calling J could have been that she had no direct evidence to give on any fact in issue. But, he submitted, that was not the case once the applicant had given evidence about the vagina oil conversation at which J had been present, and once the mother had been challenged about matters (2) and (3) mentioned at [93] above.

Counsel further submitted that in any event J’s potential evidence was fresh evidence; and that there had been a miscarriage of justice because it had not been adduced.

Counsel for the Crown submitted that J had been asked to make a statement but did not do so. What she could or could not say was quite unknown to the police or the prosecutor. Some issues which the applicant now sought to ventilate, via the evidence of J, had only arisen during his cross-examination, when he ‘trotted out allegation after allegation which had not been put to relevant witnesses’. Other parts of J’s affidavit were remote to any issue at trial and were scandalous such that they would not be admitted, or else were of little moment. Again, the suggestion that the father had fabricated his evidence (and presumably, somehow coached the complainant into telling a concocted story) out of a desire to harm the applicant, had not been put at trial.

Counsel submitted also that the evidence did not meet the fresh evidence test.

Conclusions

Until the vagina oil issue emerged, we think that the prosecution had no reason to believe that J could have given any relevant information. The facts that she was the applicant’s partner, and that she had arrived home first on the night of 24 October 2012, did not bespeak any likelihood that she had anything relevant to say. Of the first six matters of proposed evidence noted at [90] above, only three of them,[19] on J’s evidence, were raised with a solicitor before the trial. There is nothing to suggest that a solicitor informed the prosecution that J had anything relevant to say, and should be interviewed. Matters (2) and (3) identified at [93] above were not confided to a solicitor before trial, or deposed to in J’s affidavit, or addressed in her oral evidence.
[19](1) The vagina oil conversation, (2) the small dildo and (3) the father’s sexual abuse of the witness (but not his alleged animus against the applicant).

Having regard to the timing and circumstances in which evidence emerged as to the issues on which J may have spoken, the Crown’s obligation to call material witnesses had little scope for operation. The alleged vagina oil conversation only became an issue after the close of the Crown case; that is, in the course of cross-examination of the applicant. Other matters about which J might have been able to speak emerged when the Crown case was re-opened so that matters could be ‘put’ to the mother.[20] This was after the defence case had been closed. Further, when the mother was recalled, defence counsel put to her matters which had not been the subject of any previous evidence. In that setting, there was no failure by the Crown to interview or call J as a witness.
[20]And the father – although, as it turned out, he was not in fact recalled.

We should add, before going further, that we have found it unnecessary to decide whether J’s evidence as to conversations with AP should be accepted. Neither have we found it necessary to pass upon the probability or otherwise of J not having been informed by lawyers with whom, as she said, she raised the question why she had not been asked to make a statement, that she should ask to do so – particularly in light of matters which she said that she had confided to the solicitors S and CM.

Assuming, contrary to our opinion, that the prosecution should have taken a statement and adduced evidence from J, the question which arises is whether any defect in procedure was productive of a miscarriage of justice. The same question arises in the context of the evidence considered apart from the alleged defect. That takes us, initially, to the question whether J’s proposed evidence should be characterised as fresh evidence.

The answer to that question is clear. The evidence upon which the applicant seeks to rely is plainly not fresh evidence as that concept is understood.

Nonetheless, in rare cases, evidence which was available at trial but which was not called may be adduced as demonstrating that there was a miscarriage of justice by reason of its not being adduced at trial. The rare cases in which such evidence is received can generally be described as cases in which[21] —

it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted [the accused]’.

[21]Mickelberg v The Queen (1989) 167 CLR 259, 301 (Toohey and Gaudron JJ) (citations omitted). See also Werden v The Queen [2015] VSCA 72 [68]-[71] (Osborn JA).

Much of the evidence deposed to by J in her affidavit could not possibly meet that test. That is the case in respect of matters (2), (3), (4) and (5) noted at [90] above. We include matter (2) because it is fanciful to believe that the father coached the complainant into telling the story that she did, some 24 hours after the incident, in order to satisfy an animus which he had against the applicant. The improbability of such a scenario is heightened when regard is had, inter alia, to the evidence about the semen on the sheet. How could the father possibly have known of it had not the complainant told him about it? It stretches credulity to breaking point to contemplate, if the complainant’s account to the father had been that the applicant had masturbated to ejaculation in the lounge room in front of the television (as the applicant asserted was the case in his record of interview, and later in evidence) that the father then invented and coached the complainant into making allegations that she had been vaginally and anally penetrated whilst she was lying in bed in circumstances which (as the applicant claimed) happened to explain his semen on the sheet.

Then there is the question of matters (2) and (3) noted at [93] above. About those matters, all that can and need be said is that J has said nothing.

The evidence which J could give about vagina oil cannot be so easily dismissed. As we observed earlier, the evidence which the applicant gave about vagina oil became something with which the prosecution could, and did, belabour him. The evidence given by the complainant about the matter, the applicant’s explanation and the time at which it emerged, and the mother’s denial when recalled, combined to give the issue a particular importance in the trial. The inevitability, as the evidence stood, that the jury would reject the applicant’s explanation directly impacted upon charge 1. Further, it bore upon the applicant’s credibility, and so was capable of impacting upon his denials with respect to charges 2 and 3.

The evidence which J would give with respect to vagina oil, had it been led and accepted, could have assisted the applicant both with respect to charge 1 and his credibility generally. Further, had the evidence been given and accepted, it would have had a generally adverse impact on the credibility of the parents. The effect of J’s evidence, if used to cross-examine the complainant, is unknown.

But despite the potential effect of the evidence as bearing upon the credibility of the applicant and the parents, we do not accept that the jury would have been likely to entertain a reasonable doubt about the applicant’s guilt on either of charges 2 and 3. For reasons which we have explained, the complainant’s account of the applicant masturbating on her bed was impregnable; and this demonstrated that the foundation of his defence was a lie. Charge 3 was thus established beyond any doubt. Further, the complainant’s account of anal penetration was volunteered freely. True it is that it was accompanied by an elaboration which the complainant later abandoned. But we are not persuaded for that reason that J’s evidence would have rendered acquittal on charge 2 likely.

There remains charge 1. We have already referred to the quality and extent of the evidence of the relevant act. The complainant’s own evidence, carefully examined, suggested that at some earlier time someone had told her about the curative effect of vaginal oil. That was plainly conveyed by her answers to Qs 107 and 186.

The applicant was not identified as the author of such information. It seems, indeed, very improbable that he would have been.

The mother said that she did not use the term, and had not previously heard the complainant use it.

Several possibilities arise. The jury might have accepted the evidence of either the applicant or J about the mother’s use of the term vagina oil.[22] If so, that would have impacted adversely on the mother’s evidence; and also, to a lesser extent, upon the father’s evidence. But then the situation would be that the applicant was familiar with the term before the incident. Why, in those circumstances, might not the jury have safely concluded that he did use the term as the complainant alleged?
[22]We use the disjunctive because it was the fact that their evidence as to time and participants in the conversation did not coincide.

On the other hand, the jury might have accepted the mother’s evidence. If it did so, the applicant’s credit would have been impugned; likewise the evidence of J. But the jury might still have concluded, looking carefully at the complainant’s evidence, that she had some prior awareness — deriving from something said by someone, not in the applicant’s presence — of vagina oil and its asserted healing effect. In that hypothetical situation, the applicant would have had no familiarity with the term, and the possibility that he said what was attributed to him would have been non-existent. In those circumstances, there would have been a substantial prospect of acquittal on charge 1.

Having considered those possible conclusions by the jury, it appears us that the effect of J’s foreshadowed evidence with respect to vagina oil, so far as charge 1 is concerned, would have been problematic. On one view, the applicant’s best chance of acquittal on that charge was to be found in the complainant’s evidence, by a line of cross-examination which was not embarked upon.

In the event, we consider that ground 4 is not reasonably arguable.

Ground 3

Because, as will be seen, the question at the heart of ground 3 is whether, in the events which occurred, the applicant has established that there was a substantial miscarriage of justice, our resolution of ground 4 in substance deals with the issue raised by ground 3. Nonetheless, we will examine the ground in full; and in doing so further illuminate the problems inherent in ground 4.

J’s proposed evidence about vagina oil

In her affidavit, J deposed, inter alia, the following:

27.A couple of weeks before the incident the subject of the trial happened, [the father] was out with his friends. [The applicant] and I were in the house with [the mother]. [The mother] was talking about how she was planning to either leave [the father] or kick him out, as she was fed up with not only the stealing money from the family but also the drug abuse and the fact that he was not being a father to his children at all.
28.[The applicant] and I agreed that she was making the right decision for herself and the family as she had given him countless chances to improve and he was just getting worse. I also agreed as I was concerned that [the complainant] was the age that I was when [the father] started sexually abusing me, so I was extremely concerned that he was going to do that to [the complainant], if he had not already started.
29.While we were talking, [the complainant] came out from the hallway into the kitchen/family room scratching her vagina. [The mother] asked her, “is it sore and itchy?”. [The complainant] had thrush at the time. [The complainant] responded “yes”.
30.[The mother] told her that she has to try not to touch it as there are natural oils in the vagina that will help make it better. [The complainant], in a surprised voice, said “Oh ok so my vagina oil will make it all better?” [The mother] then said “Yes, sweetie”.

J was called for cross-examination before this Court. It is only necessary, for present purposes, to refer to some of the cross-examination. Relevantly, she gave evidence that she had spoken with a solicitor named S at the firm of solicitors which was retained before and at the time of trial, and that she had told the solicitor about the vagina oil conversation which she had with the complainant’s mother. This was because the solicitor had asked about the matter, and she had given an explanation. She had said that the conversation when the mother used the term took place in her presence and in the presence of the applicant. She stated that the solicitor seemed to be writing down what she said.

The witness further gave evidence in cross-examination that in the course of the trial, at some point whilst the applicant was giving evidence, his barrister and the solicitor then handling the matter, CM, had come out and asked her about the vagina oil matter. She had not been in court when the applicant gave the particular evidence. She realised that they – that is, the barrister and the solicitor – did not have the notes of her earlier conversation with the solicitor, S. She told them of her conversation with the mother. This was the first time that she had spoken to the solicitor, CM, about that matter.

In answer to questions asked by the Court, the witness confirmed that the conversation to which she referred had taken place a couple of weeks before the incident which was the subject of the charges.

It can be readily appreciated that the evidence which J would have given would have conflicted with the evidence given by the applicant as to when a pertinent conversation took place, as who was then present (because the applicant’s evidence before and after the lunch adjournment was possibly inconsistent), and as to who initiated the conversation which led to the mother’s remark. That would have been so unless there had been more than one conversation in which the term had been used at which the mother, the complainant, J and the applicant had been present – and neither J nor the applicant suggested that such was the case.

J’s proposed evidence about sexual abuse and small dildo

We have summarised the evidence which J would have given about these matters at [90] above. It is unnecessary to expand upon that summary.

Communications with trial counsel and earlier solicitors

Because ground 3 was added, by leave, in the course of the oral argument in this Court, the hearing of the application was adjourned so that trial counsel and the applicant’s former solicitors could be put on notice of the allegation made.

Notification was undertaken in the first instance by the applicant’s solicitors. By affidavit affirmed 12 May 2015, Amelia Ramsay, the solicitor having charge of the matter, deposed that she had emailed trial counsel and the two solicitors[23] notifying them of matters raised in evidence by J, and that the Court had granted leave for the applicant to rely upon ground 3. She deposed that she attached the applicant’s written case, the amended notice of appeal, and J’s affidavit to those emails. Later, she forwarded, by email, a copy of the transcript of the evidence given by J. By that time, she had received an email from trial counsel stating that he would not be responding to any matters raised, and an affidavit from the solicitor, S, stating that she did not wish to make an affidavit. Later, she received an email from CM stating that she did not wish to submit an affidavit.
[23]S and CM.

It has been the practice in this Court for many years, where it is alleged that trial counsel conducted the matter incompetently, for counsel to be put on notice of the allegation, and to be given an opportunity to respond. The method by which notification has been given has varied. In R v Miletic,[24] the Court, it appears, itself notified trial counsel of the relevant ground of appeal, and gave counsel the opportunity of responding; which he did. That was also the course followed in R v Japaljarri.[25] On the other hand, in R v Portelli,[26] R v MNG[27] and R v Brown,[28] it was the applicant’s solicitors on the appeal who put trial counsel on notice of the allegations of incompetence.
[24][1997] 1 VR 593, 595.
[25](2002) 134 A Crim R 261.
[26][2001] VSCA 183.
[27][2002] VSCA 7.
[28](2002) 5 VR 463.

In Brown, Chernov JA said this:[29]

36.In a case such as the present, the relevant questions are: should the applicant’s former trial counsel, whose conduct is impugned, be informed of the allegation and, if so, by whom, and should any response that he or she may make be communicated to the Court hearing the appeal? While no hard and fast rules can or should be laid down on this issue, it seems to me that, ordinarily, the procedure proposed by this Court in MNG would be appropriate. Ultimately, it is essentially a matter for the applicant to decide whether to notify the practitioner against whom the allegation is made and give him or her the opportunity of responding and then to put all the relevant material before the appellate court in proper form. If the applicant chooses not to do so, the Court would be free to draw such inferences as it thinks may be appropriate from the failure to take such action. In particular, it would be reluctant to draw adverse inferences or make adverse findings against counsel who has not been given the opportunity to respond to the allegation of error of judgment or negligence. In an appropriate case, the Court may not continue with the hearing of the appeal until appropriate notice is given to the practitioner whose conduct is impugned.

[29]Ibid, 472 [36].

The passage implies, if it does not state directly, that the failure of an applicant’s present advisers to put trial counsel on notice of an allegation of incompetence may be used to draw an inference unfavourable to the applicant upon that allegation. On the other hand, on the authority of MNG, the failure of counsel to respond to an allegation made against him or her leaves the Court to do ‘the best we can on the material that we have’.[30]
[30][2002] VSCA 7, [32] (J.D. Phillips JA).

All of the decisions just mentioned, with the exception of Brown, pre-dated the decision of the High Court in TKWJ v The Queen.[31] TKWJ does not seem to have been cited in Brown, which is unsurprising at least having regard to the dates of publication of the two decisions.
[31](2002) 212 CLR 124.

TKWJ reinforced earlier decisions which had emphasised that where it is contended on appeal that a trial went wrong because of counsel’s ‘flagrant incompetence’,[32] what must be investigated is whether the process failed so as to result in a miscarriage of justice; rather than upon why – that is, the alleged incompetence of counsel – the process failed. But the importance of TKWJ is that it was stated or agreed in by four of their Honours, with more or less emphasis, that in determining whether the process failed, the subjective reason why counsel took the course complained of – it might be not seeking a particular direction, or making a particular submission, or not adducing particular evidence – was ordinarily irrelevant. The question whether the process failed, in the kind of case now under discussion, was to be resolved by deciding whether the course taken, objectively ascertained, was capable of explanation as having been taken for the purpose of obtaining a forensic advantage (although the fact that a forensic advantage might be objectively perceived did not necessarily mean that there had been no miscarriage of justice). Framing the enquiry that way gave due recognition to the fact that counsel will likely make many forensic decisions in the course of a trial, and an accused is ordinarily bound by the way in which his or her counsel conducted the trial.
[32]A term used by Gleeson CJ, when his Honour was Chief Justice of the New South Wales Supreme Court, in R v Birks (1990) 19 NSWLR 677

Thus, Gleeson CJ said this: [33]
[33]TKWJ v The Queen, (2002) 212 CLR 124,128, [8]. Our emphasis.

8.Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives.

And —[34]

16.It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.
17.Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice.

[34]Ibid, 130-131 [16], [17]. Our emphasis.

Gaudron J, (with whose reasons, and those of Hayne J, Gummow J agreed), said this: [35]
[35]Ibid, 132 [24]-[33]. Citations omitted. Our emphasis.

24.There are two reasons why the question whether an accused was competently represented poses difficulties for an appellate court. First, the conduct of a criminal trial frequently involves defence counsel in making tactical decisions designed to obtain a forensic advantage or, perhaps, to avoid a forensic disadvantage. Those decisions may contribute to a defect or irregularity in the trial. Thus, for example, defence counsel may decide not to seek directions with respect to the need for corroboration lest the directions serve to emphasise the strength of the corroborative evidence with the result that there is a defect in the trial because no such directions are given. The second reason is that, ordinarily, it is not possible to know what was in defence counsel’s brief.
25.Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether “no substantial miscarriage of justice has actually occurred”. In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.
26.The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question “deprived the accused of a chance of acquittal that was fairly open”. The word “fairly” should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
27.One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.
28.As already indicated, if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel’s conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.
29.Even though there is no defect or irregularity in a trial, a question may arise whether there was a miscarriage of justice. Such is the case, for example, when it is argued that a verdict should be set aside because of the discovery of evidence that was not available or, with reasonable diligence, could not have been made available at the trial – “fresh evidence”, as it is usually called. The question may also arise if counsel fails to call evidence that was available or fails to elicit evidence in cross-examination. In that situation, it has been customary to focus on the competence of defence counsel, it being said that there must be “flagrant incompetence”, an “egregious error”, “extreme conduct” or “significant fault”. Thus it was that the argument in the present case was premised on counsel having made a “wrong” decision.
30.Apart from the difficulties involved in an appellate court reviewing the conduct of counsel to determine whether it justifies one or other of the above descriptions or, even, whether it involved error, that is not an exercise that is directly required by s6(1) of the Criminal Appeal Act. Relevantly, the question posed by s 6(1) is whether “on any other ground ... there was a miscarriage of justice”. The words “on any other ground” do not postulate the demonstration of error. Rather, they simply require that “something occurred or did not occur” in the trial.
31.As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referrable to the course taken by defence counsel, it was the result of “flagrant incompetence”, “egregious error” or the like.
32.An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial. As was said by Barwick CJ in relation to fresh evidence in Ratten v The Queen:
“[A trial] will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial.”

33.Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that “when viewed in combination with the evidence given at trial ... the jury would have been likely to entertain a reasonable doubt about the guilt of the accused”.

Hayne J said this: [36]

107.No less importantly, however, it follows from the characteristics of a criminal trial which I have identified that, when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?
108.If there could not be any such explanation, there may have been a miscarriage of justice. It would then be necessary to go on to ask whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led. If, however, there could be a reasonable explanation for not calling the evidence, that will be the end of the matter. It is not to the point then to inquire whether counsel did or did not think about the point, or acted competently or incompetently, even though the conclusion that there could be no reasonable explanation for the course followed at trial would seem to entail the conclusion that counsel did not act competently.
109.To hold that the inquiry is not an objective inquiry of the kind I have described would require an appellate court to apply inquisitorial methods and standards in determining an appeal from what, at trial, has been an accusatorial and adversarial process. It would require the appellate court to examine whether, on all the material available, a jury would have been likely to entertain a doubt. That is a very different process from the process undertaken at trial which is predicated upon the parties choosing the field for debate and (subject to the obligations of the prosecution) the evidence that is to be led. The principles which inform the two processes are so radically different that they cannot be applied at successive stages of the judicial process. If they are to be merged in some way, that must occur throughout the system, not by applying one set of principles at trial and another, contrary, set of principles on appeal.
110.Yet that is what would be done if the question were thought to turn on a factual inquiry into why trial counsel acted, or did not act, in a particular way. It would require the appellate court to decide first whether, in all of the circumstances of the case, counsel had acted wisely, and then whether, if a different course had been taken, the outcome of the trial might, or would likely have been different. And if the court were persuaded that trial counsel had not acted with reasonable skill (as, for example, by not weighing the relevant considerations properly, or even not adverting to what now is thought to have been the relevant question), what is the court to do? Would it be enough to conclude that the case might have been conducted differently and if it had, there might, or even would likely have been a different outcome? That is, is the question at its base whether, on all the material that could have been led at trial, the appellate court concludes that a different outcome was possible or probable?
111.A test of that kind would indeed be undemanding. Trial counsel must often make difficult decisions – both in court and out of court. Often the decision is one about which reasonable minds may differ. It follows that there will be very many trials of which it could be said that the trial could have been conducted differently from the way it was. And even if the further test that then is to be applied is whether it is likely that the result would have been different if further evidence had been led, there will be many cases in which that conclusion would be reached. That fact alone may suggest that a wrong step has been taken in formulating the relevant principles. But when it is recalled that the premise for the debate is an acceptance of the fact that competent counsel, acting reasonably, could have concluded that the evidence in question should not be led, it is obvious that the focus of attention has been shifted away from ensuring that there has been no miscarriage of justice and on to the conduct of counsel.

[36]Ibid, 158-159, [107]-[111]. Citation omitted. Our emphasis in bold.

The gist of TKWJ, as we have said, was that counsel’s explanation is ordinarily a distraction from the objective enquiry which must be undertaken where a question arises whether the course taken at trial could be explicable as a rational forensic choice. It is, however, the case that Gleeson CJ postulated ‘exceptional cases’ in which that might not be so, whilst Gaudron J did not exclude the relevance of the reason why a course was taken.

In Nudd v The Queen, Gleeson CJ said this:[37]

7.The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial.

8.Where it is claimed that a miscarriage of justice of the second kind referred to in Davies and Cody and Ratten has occurred, the appellate court is primarily concerned with what happened at, or in relation to, the trial of the appellant; an investigation of why it happened is ordinarily irrelevant, and often impractical. It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions. Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred.
9.Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v R, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.
…
12.The reluctance of courts of criminal appeal to enter upon an assessment of the performance of trial counsel is well-founded in considerations both of principle and of pragmatism. That reluctance is reflected in the way in which courts respond to an argument that there has been a miscarriage of justice arising from the incompetence of counsel. Such arguments are becoming increasingly common. Nowadays, when most criminal trials and appeals are funded by legal aid, appellants are often represented by counsel who did not appear at the trial. By hypothesis, trial counsel lost; an appellant supported by legal aid will often want new counsel to conduct the appeal. The client may well be dissatisfied with the performance of trial counsel. Appeal counsel will have his or her own ideas about the way the defence case should have been conducted. Inevitably, in some cases, trial counsel will be blamed for failure. Such blame is pointless unless it can be related to a legal rubric of relevance to the jurisdiction being exercised by the court of criminal appeal. The relevant rubric is miscarriage of justice.

[37](2006) 225 ALR 161, 164-165, 166 [7]-[9], [12]. Citations omitted.

There again, the Chief Justice left open the possibility that in some cases an investigation of the subjective reason why counsel acted as he or she did might be pertinent. Ordinarily, however, that would not be so.

In the same case, Gummow and Hayne JJ, in a joint judgment, observed that to describe counsel’s conduct of a trial as ‘incompetent’ (with or without some emphatic term such as ‘flagrantly’) must not be permitted to distract attention from the real question, that is, whether in all the circumstances there had been a miscarriage of justice.[38]
[38]Ibid, 170 [24].

Callinan and Heydon JJ said this: [39]

157.In TKWJ v R, Gaudron J with whom Gummow J agreed, pointed out that the inquiry of an appellate court in a case of this kind was an objective one, and whether, so viewed, the course taken by counsel was capable of explanation. Hayne J, with whom Gummow J also agreed, too said that an objective assessment of the conduct of the case is required.
158.In this case, on any assessment, whether subjective or objective, counsel’s conduct was incompetent to a serious degree. So too, on either a subjective or an objective assessment, some at least of counsel’s conduct cannot be rationally justified or explained, although perhaps it can be said that the overstatement of the matters required to be proved by the prosecution may have contributed to the appellant’s counsel’s further and significantly greater overstatement of them. That is not however the end of the matter. Was the appellant’s trial a fair one in all of the circumstances? Did justice miscarry to the extent that the appellant was deprived by his counsel’s conduct of a chance of an acquittal? In answering these questions, we keep in mind that the more apparently serious the offence, the greater the need there generally will be for punctiliousness in all respects in the conduct of the trial.

[39]Ibid, 199-200 [157]-[158].

The general principles to which we have referred were briefly restated in the joint judgment in Patel v The Queen.[40]
[40](2012) 247 CLR 531, 562-563 [114] (French CJ, Hayne, Kiefel and Bell JJ). There, the Crown – not the appellant — attempted to rely upon the course adopted by trial counsel.

We should mention also the discussion of authorities by Maxwell P in James v The Queen,[41] and the observations of the Court (Maxwell P, Weinberg and Santamaria JJA) in Bass v The Queen.[42] In Bass, we note, appellant’s counsel volunteered an affidavit in which he sought to explain the course taken at trial as involving rational forensic decisions. The affidavit demonstrated the contrary. Such a conclusion was in any event inevitable upon an objective enquiry.
[41](2013) 39 VR 149, 152-6 [4]-[14].
[42][2014] VSCA 350, [113]-[121].

Recently, in Lyndon v The Queen,[43] Basten JA, in the New South Wales Court of Criminal Appeal, said this with respect to the admissibility of counsel’s explanation for a course adopted at trial:[44]
[43][2014] NSWCCA 112, [54]-[56].
[44]Ibid [54]-[56]. The other members of the Court concurred.

54.Counsel’s affidavit acknowledged that he was aware that the applicant suffered a serious back problem prior to trial, that he had discussed with his solicitor the possibility of obtaining medical evidence and concluded that it was not readily available. He said that he did not consider engaging a suitable expert to provide medical evidence at trial as he believed that the jury would have realised from the applicant’s appearance that he was physically incapacitated. Finally, he stated that he “did not make a deliberate forensic decision that it was in the appellant’s best interests to not call evidence of this kind at the trial.“ Such statements are intended to deflect the criticism that an appeal is brought on a basis deliberately eschewed at trial.
55.The admissibility of such evidence may be doubted: as stated by Gaudron J (Gummow and Hayne JJ agreeing) in TKWJ v R [2002] HCA 46; 212 CLR 124 at [27] in considering whether decisions taken by counsel might contribute to a miscarriage of justice:
“One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.”

56.On this authority, counsel’s affidavit was inadmissible, because irrelevant. To the extent that it might be considered relevant, it confirmed that which could readily be identified from a general understanding of the case, namely that medical evidence was considered but not called on an entirely rational basis, namely that it was unnecessary.

To say simply that the affidavit was ‘inadmissible, as irrelevant’ may go too far. Indeed, Basten JA had observed, shortly before, that ‘(t)he admissibility of such evidence may be doubted’. Consistent with the ‘exceptional cases’ concept, counsel’s explanation of the course followed, in a particular case, might inform the answer to the objective enquiry whether the impugned decision was capable of rational explanation.[45]
[45]It is outside the needs of the present matter to contemplate the circumstances in which counsel’s explanation why he or she acted in a particular way might be receivable. But perhaps that might be so if – it would likely be a rare case - counsel was to depose that evidence was not adduced, or a submission was not made, or a direction not sought, because it was simply overlooked; that is, that the omission was not a forensic choice. Such evidence would not of itself demonstrate that that there had been a miscarriage of justice, but it could at least remove from consideration the possibility that the omission was deliberate. There was, we add, an aspect of counsel’s affidavit in Lyndon which had the flavour just mentioned. But it did not sit easily with counsel’s description of what had in fact led to particular investigations not being conducted, or evidence adduced.

Because TKWJ shows that, ordinarily, counsel’s explanation for a course adopted at trial will not assist determination whether the trial was thereby rendered unfair, whether a miscarriage of justice occurred, this question may be asked: when it is alleged that a trial was unfair, that a miscarriage of justice occurred, by reason of the course adopted by trial counsel, should this Court continue to give counsel the opportunity of explaining why that course was adopted?

The answer which we would give to that question is ‘yes’. That is partly because an answer which counsel gives might, in some limited circumstances, bear upon determination of the answer to the key question, and partly because the interests of fairness dictate that counsel should have the opportunity of answering an allegation that he or she followed a course which had no forensic benefit and which seriously disadvantaged the client. It is a serious matter to be accused of professional incompetence. We would emphasise, however, that counsel should feel under no obligation to explain why a particular course was adopted. There may be many reasons why counsel would be reticent about doing so. There is no question of an inference adverse to counsel being drawn in the event that he or she does not respond to an opportunity to explain the course which was adopted.

There is a further question. It relates to the procedure which Chernov JA suggested should be followed in Brown. We respectfully doubt that it is now appropriate. It contemplates that an applicant’s failure to advise trial counsel of an allegation of incompetence may lead to this Court to draw an inference unfavourable to the applicant. The question for this Court’s determination being (at least ordinarily) one to be answered on objective examination, and counsel’s explanation, if any, being unlikely to illuminate the point, we doubt that there is room – or at very least, much room - for the kind of inference which Brown appears to contemplate. It would, we think, be better overall if the Court, with its authority, assumed the burden of informing trial counsel of an allegation of incompetence, and invited such response as counsel might choose to give.

Having regard to the possibility that the Court might conclude that the applicant had suffered a substantial miscarriage of justice because evidence was not adduced from J – which would potentially impugn the conduct of the lawyers at trial - the Registry enquired of trial counsel and the two solicitors (after Ms Ramsay’s affidavit had been filed) whether they wished to provide affidavits, or make submissions to the Court, on the resumed hearing of the appeal. It was made clear that there was no obligation to respond, and that no adverse inference would be drawn in the event that no response was provided. Counsel and the solicitors chose not to respond.

Submissions

Counsel for the applicant submitted that the failures of trial counsel were so significant that they could not be explained as legitimate forensic, or tactical decisions. For whatever reason they were made, they contributed to a substantial miscarriage of justice. The evidence of J was relevant and admissible. Absent any response by trial counsel or the solicitors, her evidence as to what she had told them was uncontradicted and plausible. She had been the first person to see the applicant after the alleged incident. The complainant’s allegations had been disclosed to her by the parents. She was the partner of the applicant and the aunt of the complainant. The matters about which she had informed the solicitors were significant and were relevant to cross-examination not only of the complainant, but also her parents.

In respect of that last matter, counsel emphasised that it was the evidence which J would have given about the vagina oil which was the most important. The phrase, and its use by the complainant, gave the child’s evidence a degree of verisimilitude having regard to her age and the unlikely prospect of a child of that age having that vocabulary. Part of the reason for its significance was the testimony of both parents that they had never heard her use the expression before. Further, the topic became pronounced during the trial after the applicant gave his evidence. It led to the recall of the complainant’s mother. The evidence that J would have given would have both contradicted the evidence of the complainant’s parents, and corroborated the applicant’s evidence that there was an explanation consistent with innocence for the complainant’s use of the term vagina oil.

So far as the evidence of J about her abuse at the hands of her brother and similarities with the account purportedly given by the complainant to the father was concerned, counsel submitted that, at the very least, it raised the possibility of contamination or fabrication of the complainant’s account. It was notable, counsel submitted, that it had been the father to whom the complainant was said to have first given an account of the applicant’s offending.

Although the particulars to ground 3 refer to the third matter noted at [90] above, counsel made no submission in that connection. We will say no more about the matter.

For the Crown, counsel submitted that it was a real possibility that applicant’s trial counsel had made judgments about the witness and her credibility. She was not independent. Her account contradicted the evidence of the applicant in more than one way. The applicant had given evidence of raising matters with trial counsel which the latter had decided were not important enough to mention. The applicant was simply trying to re-run the defence case.

Conclusions

Let it be assumed that J did give instructions to the solicitor, S, to the effect that the mother had used the term vagina oil before the incident and in the presence of the complainant. Let it be assumed also that J informed trial counsel and the solicitor, CM, to like effect in the course of the trial.

As we have already observed, had J been called, and had she given evidence in accordance with her affidavit and her oral evidence before this Court, it would have provided an explanation for the complainant using the language which she did – that is, other than that it was the language used by the applicant – and, if accepted, it would have impinged upon the credibility of the mother and the father.

On the other hand, upon the assumptions which we have made, viewed objectively counsel had to make a forensic choice whether or not to call J. In that connection, the following matters were in point:

(1)The applicant’s account of the circumstances in which the mother had referred to vagina oil, and the time when the relevant conversation had taken place, and as to the person who had instigated the particular conversation, differed significantly from the account which J would have given. It could not be said with any confidence, in those circumstances, that the jury would have been persuaded to the accuracy of either account. We add – see [123] above – that there would not have been a sound basis for the jury concluding that there had been two conversations.
(2)If the jury had accepted the applicant’s account of the circumstances, the complainant would have been aged under five when the conversation occurred. In those circumstances, the jury might well have reasoned that the applicant, but not the complainant, was likely to have remembered the term, and so used it at the time of the incident.
(3)J’s evidence, though not by any means identical with the evidence given by the applicant, would have tended to reinforce a conclusion that the applicant was familiar with the term vagina oil, so explaining its use by the applicant at the time of the incident.

In those circumstances, we are not persuaded, objectively viewed and on the assumptions which we have made, that the choice of counsel not to call J rendered the trial unfair, or was productive of a miscarriage of justice.

We add this. If the jury had accepted the mother’s evidence, in which circumstances the pertinent evidence of both J and the applicant would have been rejected, the jury might nonetheless have concluded that someone, at some time before the incident, had used the term vagina oil when speaking to the complainant. Although, in those circumstances , the jury would probably have concluded that the applicant had not used the term at the time of the incident, it would still have been well open to the jury to have been satisfied to the criminal standard that the applicant had digitally penetrated the complainant’s vagina. The applicant’s credibility would have been badly damaged by his unsuccessful attempt to fix the mother with the use of the term.

As we have mentioned, under cover of ground 3 applicant’s counsel also relied upon the failure of trial counsel to adduce evidence from J with respect to her abuse at the hands of her brother; and of the similarities between the abuse inflicted upon her and the initial account given by the father of what the complainant told him about the applicant’s behaviour.

Let it be assumed that counsel’s instructions, at the outset of the trial, included J’s account with respect to the matters just mentioned. What counsel did not know, in those circumstances, was the supposed explanation why the complainant’s father might have coached the complainant into giving the account which she did. That explanation, according to J, was that the father had an animus against the applicant. This was not a matter about which J, on her account, had informed the solicitors before trial.

In those assumed circumstances, counsel would have been faced with a decision whether to adduce the evidence and invite the jury to infer that, for reasons unexplained, the father had coached the complainant into giving an account of abuse at the hands of the applicant which was a replication of things allegedly done by the father to J. We do not accept, objectively viewed, that a choice not to seek to adduce that evidence rendered the trial unfair or was productive of a miscarriage of justice.

In our opinion, ground 3 is not reasonably arguable.

Order

In our opinion, the application for leave to appeal against conviction should be refused.

———

[2015] VSCA 141

9 June 2015