McCarthy v Regina
[2008] NSWCCA 320
•18 December 2008
New South Wales
Court of Criminal Appeal
CITATION: McCarthy v Regina [2008] NSWCCA 320 HEARING DATE(S): 16 September 2008
JUDGMENT DATE:
18 December 2008JUDGMENT OF: Giles JA at 1; Rothman J at 138; Price J at 139 DECISION: Time for appealing be extended to 17 August 2006. Appeal dismissed. CATCHWORDS: Criminal law - sexual offences - appeal against conviction - unrepresented appellant - numerous complaints - including that legal representation deficient - and that verdicts unreasonable and could not be supported having regard to the evidence - substance of complaints distilled from grounds, submissions and other materials - legal representatives made rational decisions - no miscarriage of justice - open to jury to be satisfied beyond reasonable doubt - audio tapes of complainant's police interview tendered - jury retired with tapes and transcript - contrary to preferred procedure - in the circumstances, no miscarriage of justice. CASES CITED: Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1;
M v The Queen [1994] HCA 63; (1994) 181 CLR 487;
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606;
R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628;
Rudd v The Queen [2006] HCA 9; (2006) 225 ALR 161;
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124;
Wilson v R [2006] NSWCCA 217.PARTIES: Rodney Raymond McCarthy - Appellant
The Crown - RespondentFILE NUMBER(S): CCA 2005/4253 COUNSEL: Appellant in person
N F Noman - CrownSOLICITORS: S Kavanagh - Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 04/51/0127 LOWER COURT JUDICIAL OFFICER: Black DCJ LOWER COURT DATE OF DECISION: 23 March 2005 (Sentence)
CCA 2005/4253
DC 04/51/0127Thursday 18 December 2008GILES JA
ROTHMAN J
PRICE J
1 GILES JA: In March 2005 the appellant stood trial before Black DCJ and a jury on an indictment charging seven counts of sexual intercourse with CD, a child then aged 14 years (Crimes Act, 1900, s 66C(3)). The sexual acts were alleged to have taken place on dates or between dates in the overall period 11 August 2003 to 26 September 2003.
2 The jury returned verdicts of guilty on all counts. The appellant was sentenced to concurrent terms of imprisonment for 4 years commencing on 24 October 2005 with non-parole periods of 3 years.
3 The appellant appealed against conviction. He brought and prosecuted the appeal without legal representation.
4 The notice of appeal was filed on 17 August 2006, some seventeen months after the appellant was convicted and sentenced, and an extension of time is required. When invited to explain the delay, the appellant said that he had not been able to get legal representation and was out of his depth, that he wanted to present things to the Court with proof, and that he had done his best; it is not clear, but he may have meant also that his time was taken up in defending charges of some drug offences. This was not a satisfactory explanation for the delay. However, the Crown made no submission against, or even about, an extension of time. The appellant’s difficulties in proceeding unrepresented were evident, and it may be accepted that they contributed to the delay. In the particular circumstances, an extension of time should be granted.
5 The appellant did not formulate grounds of appeal in the conventional manner. He filed as grounds of appeal a document listing 25 points, another listing 28 points (“the 28 point document”), and as submissions a further document with seventeen paragraphs broadly concerning the same points which could be taken as grounds of appeal. The nature of his complaints can be seen from the 28 point document -
“1. Supreme Court appeal matter on conviction only.
2. Credibility of evidence of principle [sic; and elsewhere] witness.
3. Inconsistency of witness in cross and statements.
4. Contradictory of principle witness statement and cross-examination uncreditable witness.
5. Self admissions of principle witness lying in statements and cross-examinations.
6. Certificates issued to crown witness to avoid charges of perjury and later charges in relation to statements and evidence given.
7. Inducement by police to crown witness for favourable evidence ‘change these statements’.
8. Evidence not corroborated by crown witness as stated to jury by crown ‘misleading’.
9. Burden of proof and testing of evidence by crown not achieved.
10. Misleading of jurors in evidence by crown stating untrue facts knowingly and irrelevant facts.
11. Weight of hearsay and circumstantial evidence.
12. Precedents on un-credibility [sic] and inconsistency of crown witness.
13. Weight of signed supreme court affidavit by principle witness (stating case is not true) being the first statement, before police statement some near four months on any charges.
14. Coercion of principle witness to give evidence.
15. Principle witness giving multiple inconsistent statements with admissions of lying about facts.
16. Ulterior motives for principle witness to give false evidence ‘protect boyfriend – cohoused (?) – money’.
17. Evidence coerced from prosecution witness for favourable evidence and favour from police in relation to charges.
18. Admissibility of evidence (prejudicial to defence).
19. Weight of evidence prejudicial/probative value.
20. Editing of evidence ‘statements – letters – etc’ prejudicial to defence favourable to crown case ‘misleading’ and painting facts.
21. Admission of evidence irrelevant to case ‘no weight/probative value’.
22. Leading interviewing detective not giving evidence in cross-examination.
23. Misrepresentation of assisting legal aid solicitor.
24. Legal representation not acting as instructed.
25. Perjury of prosecution’s witness in cross.
26. Police coercion of prosecution witness.
28. Police misconduct on duty.”27. Withholding evidence favourable to defence case.
6 A further document of four pages as submissions concluded with the statement of an intention to “lead evidence to the court of some 157 pages in support of my submissions plus provide evidence this case is fictitious”. In fulfilment of the intention, the appellant filed a document of 167 pages containing commentaries on a transcript of the audio tapes of the police interview with CD (the complete interview, not the edited interview in evidence at the trial), on CD’s oral evidence and on the Crown Prosecutor’s address to the jury, and an affidavit sworn by the appellant annexing over 600 pages of documentary material. The appellant sought to tender further documentary material, and to call oral evidence, at the hearing of the appeal.
7 The Crown contended that most of the affidavit material was not relevant, but was content that it be admitted with its objection being noted. The Court ruled on the other evidence on which the appellant wished to rely: the time this occupied showed that the Crown had taken a sound practical stance. The Crown briefly cross-examined the appellant.
8 The grounds of appeal included complaint that the appellant’s legal representation at the trial had been deficient. The appellant said that his grievance was only as to the solicitor, Mr David Imlah, not as to his counsel because counsel “was not properly informed”. After waiver of privilege, the Crown read an affidavit of Mr Imlah and Mr Imlah was cross-examined by the appellant.
9 I have sought to distil from the points in the grounds of appeal and the voluminous written and oral submissions and other materials before the Court the substance of the appellant’s complaints, and have addressed them in such detail as is appropriate.
Overview
10 A community youth service called Community Connections provided accommodation in premises in a country town for young people who were homeless or at risk of becoming homeless. There were two units in the premises. JN, aged 16, had lived in one of the units since April 2003 and NC, aged 19, began living in the unit in early August 2003. CD was JN’s girlfriend. She lived with her mother, but regularly stayed overnight in the unit.
11 On 11 August 2003 AE, aged 16, began living in the other unit. The appellant, aged 35, was AE’s boyfriend. On the appellant’s case he lived with his mother and visited AE frequently, but CD said that the appellant sometimes stayed at AE’s unit and JN said that the appellant moved into AE’s unit.
12 The three occupants of the units and CD and the appellant were often together in various combinations. Their gatherings included occasions of smoking cannabis and drinking alcohol.
13 On the Crown case, on one such occasion a few weeks after AE moved into the premises she, the appellant, JN and CD were together in AE’s unit, and there was discussion about sex and sexual activity which, omitting the detail, developed to a “foursome” in the course of which the appellant performed cunnilingus on CD (count 1) and then digitally penetrated her vagina (count 2). Still on the Crown case, some time between 20 and 24 September 2003 the appellant and CD walked to a nearby lookout where they had penile/vaginal intercourse (count 3), and on separate occasions on 24 September, 25 September and the morning of 26 September 2003 they had penile/vaginal intercourse (count 4), CD performed fellatio on the appellant (count 5), they had penile/vaginal intercourse (count 6), and CD performed fellatio on the appellant (count 7), in the bedroom or lounge room of AE’s unit.
14 On 25 September 2003 JN and NC went to Community Connections and told them “what was happening in the house”. They gave statements to the police. The statements were not in evidence: this generic description comes from JN’s evidence. The statements were before the Court on appeal. They were principally concerned with supply of prescription drugs by the appellant to the occupants of the units and in JN’s case also with the foursome.
15 On 26 September 2003 the appellant was arrested for drug offences. Following his arrest the police and a DOCS officer spoke to CD and AE, but they refused to be interviewed and CD was uncooperative and argumentative.
16 The appellant was interviewed in relation to the drug offences. At the end of the interview he was asked whether he had engaged in sexual acts with AE, JN and CD, and denied that he had.
17 The appellant was refused bail on the drug matters. While in prison he wrote several letters to CD which the Crown said supported, though non-specifically, that there had been a sexual relationship between the appellant and CD.
18 On 8 December 2003 CD signed at the local Legal Aid office an affidavit in which she said that she had seen statements of JN, NC and the appellant and had not taken part in or observed sexual acts referred to in those statements. In her evidence at the trial she said that she went to the Legal Aid office at the request of the appellant through AE, that she had not seen the appellant’s statement, that the affidavit was not true, and that she went to the Legal Aid office and signed the affidavit because she was in love with the appellant and would do anything for him.
19 On 30 December 2003 CD went to the police and gave a detailed interview complaining of the sexual acts the subject of the charges. When asked in cross-examination what had changed she said that AE had left, there was no one constantly telling her that the appellant was “so great”, and “so I finally came out of being brain washed and I finally realised the truth”. CD’s change of attitude, and exploring the reason(s) for it, was understandably prominent in the defence case.
20 The appellant was interviewed by the police on 2 March 2004. He denied the offences.
The trial
21 A trial commenced on 8 March 2005. Black DCJ ruled on the admissibility of certain evidence and a jury was empanelled, but it was discovered that there was an irregularity in the empanelment and the jury was discharged. A fresh jury was empanelled on 12 March 2005, and the parties agreed to be bound by the earlier rulings.
22 One ruling was concerned with evidence, to be given by CD, JN and NC, that the appellant provided prescription drugs (valium and prothiaden) to the occupants of the units. As I have said, the statements of JN and NC had been principally concerned with the supply of drugs to the occupants, and CD’s interview had included reference to it. The appellant had been charged with the summary offences of supply of restricted substances. The Crown proposed to lead evidence of smoking cannabis, drinking alcohol and taking the drugs supplied by the appellant “to put the relationship between the parties in some proper context”. The defence did not object to evidence of smoking cannabis and drinking alcohol, but objected to the further evidence, and the trial judge ruled against its admission. As one result, there was editing of the tapes of CD’s interview and of the interviews with the appellant, in addition to other editing of the tapes of the interviews on which the prosecution and defence agreed. When JN gave evidence the Crown did not elicit evidence of the drug-taking.
23 The other ruling was concerned with the letters written by the appellant to CD while in prison, to which the defence objected principally because on their face they were written while the appellant was in prison. The trial judge ruled in favour of their admission, while noting that it was agreed that there was to be editing. From what the Crown Prosecutor said, this was to be to remove their disclosure that the appellant “has spent a substantial part of his recent history in gaol”.
24 The trial ran to 23 March 2005. Evidence in the Crown case was given by CD and JN, by investigating police officers Detective Senior Constables Manitta and Williams, by CD’s mother, and by an officer of Community Connections. The jury was informed by agreement that NC could not give evidence by reason of a serious medical condition unconnected with the trial. The appellant gave evidence, and called evidence in his case from his mother and from the operator of a video store.
25 The evidence was lengthy, and the following is a less than full account but a sufficient framework for consideration of the appellant’s complaints.
26 CD initially gave evidence via CCTV (see Evidence (Children) Act, 1997(since repealed), s 18). She gave evidence of the interview with the police on 30 December 2003, and the edited audio tapes of the interview were played to the jury. Copies of a transcript were provided to the jurors. The tapes were in due course tendered and became an exhibit.
27 CD then gave further evidence in chief in the courtroom.
28 She identified and added some explanation of sketch plans of rooms in AE’s unit referred to in the interview, in the course of which she gave further evidence of the occasion of the foursome. She identified a number of letters written by the appellant over the period 14 October 2003 to 30 December 2003, and explained some of their contents (for example, that “Viking” was the appellant’s nickname and “baby girl” was what he called her). Copies of the letters, edited by agreement between the Crown and the defence, were tendered and became exhibits, further copies were provided to the jurors, and the edited letters were read aloud. She gave evidence that when the appellant was arrested on 26 September 2003 she “didn’t want to tell [the police] anything”, and that at the time her feelings towards the appellant were that she loved him and would do anything for him. She said that at the time of her interview on 30 December 2003 she “wanted someone else to tell me I was doing the right thing and I was still really confused”.
29 CD said that she had forgotten to include in the interview that on the occasion of the foursome the appellant had brought a pornographic DVD or DVDs which were played, and she gave some additional evidence also in relation to the later occasions of sexual intercourse. She was asked about going to the Legal Aid office on 8 December 2003, and gave evidence to the effect earlier mentioned. The trial judge granted a certificate under s 128 of the Evidence Act 1995 in relation to her evidence of making a false affidavit.
30 If the jury accepted CD’s evidence of the sexual acts, they were entitled to find the appellant guilty of the charges.
31 CD was cross-examined at some length. The principal thrust of the cross-examination was that CD was making false allegations against the appellant in order to secure victim’s compensation, in conjunction with JN and also to restore her relationship with JN. She denied this, including denying that the police had raised or promised that she would get compensation. There was put to CD the change in her attitude to the appellant, particularly the change from making the affidavit in early December, her response being to the effect that she had been in love with the appellant and would have done anything for him but in late December 2003 that was no longer so. There were also put to her some discrepancies in the sequence of the acts of sexual intercourse and some uncertainties in their detail, for example whether on the occasion at the lookout she was on her back or her stomach, and other matters such as discrepancy in telling the police that the pornographic DVDs were videos. In the course of the cross-examination CD’s accounts of the sexual acts were gone over, in some respects in more detail than as she had described them in her evidence in chief.
32 CD had said in her interview that the appellant was circumcised and had his pubic hair shaved. The cross-examination included putting to CD that she had never seen the appellant naked, and further questions eliciting that she did not think he had any tattoos, denied that he had a penis ring and did not remember a birthmark or scar on his penis.
33 JN gave evidence of the occasion of the foursome. He said that soon thereafter, because he was worried for CD’s safety and health, he and NC went to Community Connections and “told them what was happening in the house”. He was taken to the police, where he made a statement; as I have said, the statement was not put in evidence. He and NC were moved to different accommodation. He saw CD from time to time thereafter, but CD was unfriendly towards him until around Christmas 2003 when she “was starting to want to talk”. Their relationship improved, and at the time of the trial he was living in CD’s household with her mother and sister. The trial judge granted JN a certificate under s 128 of the Evidence Act in relation to his evidence of his own participation in the foursome.
34 JN was particularly cross-examined to suggest the depth of the breakdown of his relationship with CD after 25 September 2003, it seems in order to emphasise that the later reconciliation was venal. He denied talking to CD about getting victim’s compensation, and denied that the police had said anything about compensation.
35 Detective Senior Constables Manitta and Williams variously gave evidence of taking statements from JN and NC on 25 September 2003, the arrest of the appellant on 26 September 2003 and the interview then conducted with him, of CD then being uncooperative and refusing to be interviewed, and of the interviews with CD on 30 December 2003 and with the appellant on 2 March 2004. The edited audio tape of the appellant’s interview of 26 September 2003, from which drug supplying had been removed and which was largely a description of relationships between the occupants of the units, was played to the jury; the concluding part in which the appellant denied that he had engaged in sexual acts had by mistake been edited out, and by agreement evidence of his denial was given orally. The audio tape of the interview of 2 March 2004 was played to the jury. Copies of transcripts were provided to the jury. The tapes were tendered and became exhibits.
36 Detective Senior Constable Manitta gave evidence of inquiries into the appellant’s membership of a video store club and obtaining a record of his hiring items on 2 September 2003, but the record did not enable the items to be identified. He said that the police had not promised money to CD for making her statement or spoken to her about compensation, save that after the appellant alleged in his interview of 2 March 2004 that CD had told people she was getting money he informally interviewed CD who assured him she had not. He said that in recent times the police had tried to take a statement from AE but received a “negative response”, and that she was no longer living in the area.
37 The cross-examination of the police officers touched briefly upon promise of victim’s compensation to CD, but did not obtain any support for CD having compensation in mind. It elicited that on an occasion when Detective Senior Constable Manitta had seen AE at CD’s home he had not asked her to make a statement; there was at least a toehold for failure sufficiently to try to obtain a statement.
38 CD’s mother gave evidence about CD staying out at night, and of seeing some bruising on her (CD had given evidence of bruising as a result of one of the sexual encounters). The mother had not met the appellant. She said that AE had come to stay with them but had moved out in early December 2003, and that from the end of December 2003 JN began to be CD’s girlfriend once more. The cross-examination elicited that when CD returned home a little after 26 September 2003 she told her mother that the appellant had done nothing wrong.
39 The officer of Community Connections gave evidence of the accommodation arrangements for the units, and of some dealings with the occupants and the appellant which did not take matters very far. She was not cross-examined.
40 The appellant’s evidence in chief was brief, and amounted to denial of any sexual activity with CD. He said of the DVDs that “I call them pornos”, but that there was no sex in them “just adult theme at the most, kissing, cuddling, then it would cut”. In relation to the foursome, he said that he would not want to be involved because “I’d never let anyone near [AE]”, and “I don’t even like people looking at her let alone touching her, I’m jealous, simple”. He described an occasion when NC had “started wierding out” and abused AE, something which had been part of his account of the relationships in the interview of 26 September 2003. He said that he had beaten NC up.
41 In his interview the appellant had said that he loved CD like a big brother. He said in his evidence that on an occasion CD “offered to have sex and I explained to her, look I don’t see her that way, its not how I see her … “. He agreed that there were sexual references in the letters he had written to CD, but explained that CD’s self-esteem was low and that she had “expressed an interest in me” and he “jokingly flirted with her a bit, probably not the right thing to do but I didn’t want to crush her … “.
42 The appellant said that CD had never seen him naked, and described a birthmark on his penis, a scar from where he had had a marble, and a piercing from a penis ring which he had worn “right until the time I was arrested”; that is, until 26 September 2003. He was not cross-examined in relation to this evidence.
43 In cross-examination the appellant agreed that CD told him she loved him, and wanted sex with him, but said that while he cared about her his feelings were not of a sexual nature and he was madly in love with AE. He was taken to the letters he had written while in prison, which it was suggested to him revealed a quite different relationship. Parts to which he was taken included writing about setting up a home with CD in Queensland, of which he had written “your mum will spin like a top if you fucked off with me, I’m working on it though”; expressing pride that CD and AE had “stuck together” and concern that he would be “in trouble” with AE when he got out of prison (which the Crown Prosecutor suggested reflected AE’s knowledge of the appellant having a sexual relationship with CD); and displaying jealousy that CD may have had a relationship with one Nathan. The appellant gave explanations, and it was for the jury to determine in the light of the cross-examination whether the letters supported a sexual relationship with CD or were no more than flirting so as not to be unkind in rebuffing her expressed love for him; it was, however, an effective cross-examination on material well open to the former view.
44 The appellant’s mother gave evidence concerning the appellant ordinarily staying at home and having AE as his girlfriend. The video store operator gave evidence concerning the hiring from the store. She could not tell whether the appellant had hired DVDs or videos, or identify the items. The store stocked R rated movies, in which “you know what’s going on but we don’t actually see the act itself in detail”, but not X rated.
The appellant’s complaints
45 The matters in the 28 point document can be brought under a number of topics.
46 The first is misconduct of the police, in coercing or inducing Crown witnesses to give evidence or to give favourable evidence and generally (points 7, 14, 17, 26 and 28).
47 The second is misconduct of the Crown, in withholding evidence, leading untrue and irrelevant evidence, misleadingly editing evidence and misinforming the jury (points 8, 10, 20, 22 and 27).
48 The third is in relation to the grant of certificates under s 128 of the Evidence Act (point 6).
49 The fourth is that of the appellant’s legal representatives failed to act upon instructions and otherwise acted deficiently (points 23 and 24).
50 The fifth is wrongful admission of evidence (points 18, 19 and 21).
51 The sixth and most comprehensive is, in summary, that the Crown case was not made out because of inconsistencies, contradictions and lack of credibility (points 2, 3, 4, 5, 9, 11, 12, 13, 15, 16 and 25).
52 There were overlaps and variations within the grounds and submissions, and other matters appeared from the appellant’s written and oral submissions, but these topics provide a convenient framework. I will deal with variations and other matters in what follows.
Misconduct of the police
53 The appellant asserted that police had interfered with preparation of the defence case and intimidated defence witnesses and their families. There was no evidence to support this. Mr Imlah was not asked anything to suggest that his conduct of the defence case had been hindered.
54 Nor was there any evidence of inducement or coercion of Crown witnesses. The appellant may have meant that CD, or CD and JN, had been induced or coerced to give favourable evidence by suggestion or promise of victim’s compensation, as had been part of his case at the trial. His case at trial included the appellant’s assertion in his interview of 2 March 2004 that CD had been “coaxed by [JN] into the idea they’re going to get a victim’s compensation claim” and had it in her head they would get up to $50,000; it was put to CD, JN and the police officers, but without their acceptance.
55 The appellant may also have included in police misconduct his complaints in the written submissions that the police failed to obtain DNA at the units or to subject CD’s clothing to DNA testing in order to substantiate the allegations made against him, to subject CD to toxicological and sexual assault tests, or to take statements which would be unfavourable to the Crown case in September 2003. By unfavourable statements he appeared to mean statements from CD and AE to the effect that the sexual acts had not occurred.
56 For many reasons, these complaints have no substance. CD and AE refused to be interviewed, and it was not shown that the police could or should reasonably have done more in these respects. It was brought out at the trial that, in a solemn manner, in the affidavit made on 8 December 2003, CD denied the sexual acts. It is no more than speculative what DNA testing would have shown; there is no doubt that the appellant frequented the units, his DNA on CD’s clothing would not assist him and absence of his DNA on CD’s clothing would mean little.
57 Under this topic there may also be mentioned the appellant’s complaint that Detective Senior Constable Gargan did not give evidence; the complaint could also be seen as falling under misconduct of the Crown and failure in representation. Detective Senior Constable Gargan and Detective Senior Constable Manitta interviewed CD on 30 December 2003. Detective Senior Constable Gargan principally conducted the interview. From his submissions, the appellant considered that she had “led” CD or “fished for answers” in the account CD gave of the sexual acts, and that the Crown should have called Detective Senior Constable Gargan and Mr Imlah should have ensured that she was cross-examined to establish the leading. The transcript does not support leading, and no proper basis has been shown for challenging the conduct of the interview. Had there been one, Detective Senior Constable Manitta could have been cross-examined. This complaint also is without substance.
Misconduct of the Crown
58 In large part, on my understanding of the appellant’s submissions, his contention that there was misconduct of the Crown was because in his eyes the sexual acts did not take place. In one of the written submissions it was asserted that the Crown Prosecutor’s address to the jury “was misleading or prejudicial by stating facts untrue and stating facts as proven when this is simply not the facts [sic]”. He said orally that the “Crown’s summary”, meaning the Crown Prosecutor’s address, was “just a blatant manipulation of words and quoting things as facts that simply were not facts and the evidence clearly shows that”.
59 There is no basis for concluding that the Crown led evidence knowing it to be untrue, and having read the entirety of the evidence and addresses I do not see departure by the Crown Prosecutor from fair presentation of the Crown case. Any question of relevance of evidence was a matter for objection at the trial, if appropriate, and complaint which assumes that the evidence in the Crown case is untrue is misconceived.
60 Three particular matters can be seen in the appellant’s submissions.
61 The first is the editing of the interviews and the letters. It was undertaken in part by agreement and in part consequent on the trial judge’s ruling concerning evidence of drug-taking. As I later say in connection with failure in representation, the appellant’s legal representatives acted correctly in these respects. The ultimate editing was as agreed between the Crown and the defence, in the interests of the appellant as then seen and in my view as correctly seen. There was no misconduct by the Crown in participating in the editing; quite the reverse.
62 The second is a particular aspect of the appellant’s case that CD and JN were lying in order to obtain victim’s compensation. CD said in re-examination that compensation only came up when the police told her it had been alleged that they “paid me money for a statement” and that she “gave them a statement saying they didn’t give me any money”. (It will be recalled that the appellant had alleged in his interview of 2 March 2004 that CD had in her head getting $50,000, and that Detective Senior Constable Manitta said that he informally interviewed CD who denied she was getting money.) The appellant’s counsel called for the statement. The Crown Prosecutor said he had “no knowledge of it at the present time”. It was left that enquiries would be made. There was no further mention of the matter in the transcript.
63 In the appellant’s submission, the Crown Prosecutor had lied and the Crown had suppressed the statement. That should not be accepted. There was no evidence put before this Court about the existence or content of a statement. It is readily to be inferred, and I do, that the appellant’s legal representatives were provided with the statement and saw no advantage to the appellant in what CD said, or alternatively were satisfied that CD was in error in saying there was a statement and saw no advantage in taking that up as a matter going to her reliability.
64 The third is a complaint that the Crown Prosecutor misled the jury in relation to corroboration. It is not easy to understand the complaint. It was not necessary in law that CD’s evidence be corroborated. It was corroborated by the evidence of JN and possibly by the letters, but the Crown Prosecutor did not address the jury in terms of corroboration of her evidence. The appellant took issue with a reference by the Crown Prosecutor in his address to the appellant’s defence that “none of it happened” and it was “all a fantastic and elaborate lie on the part of [CD] and corroborated to the extent that [JN’s] account accords with hers by [JN]”. This was more a reference to the appellant’s case of collaboration between CD and JN in making false allegations against him, but as best I understand it in the appellant’s eyes it was misleading because JN was lying and so there was no corroboration. There is no substance in this complaint.
Certificates under s 128 of the Evidence Act
65 The grant of the certificates was not clearly taken up in the appellant’s submissions. From the submissions as a whole, he appears to have meant that the certificates granted to CD and JN were granted in the knowledge that the witnesses would otherwise perjure themselves because the evidence they were going to give was false. I think the appellant meant to submit that it was an inducement to give the false evidence.
66 This suggests a misunderstanding of the certificates. The certificates provided protection to the witnesses from use of their evidence in prosecutions for previous offending, in the case of CD making a false affidavit and in the case of JN his participation in the foursome and perhaps his own sexual relationship with CD. They did not provide protection against giving false evidence at the trial. The grant of the certificates was on application to the trial judge, in open court, and the trial judge was satisfied that the interests of justice required that the witnesses give their evidence. It is not an uncommon procedure, and there was nothing untoward in what occurred. In the circumstances it is quite understandable that the appellant’s legal representatives saw no occasion to suggest that the witnesses’ evidence was thereby tainted.
Failure in representation
67 This had some prominence in the appellant’s submissions. As I have said, the complaint was as to his representation by Mr Imlah, expressly not his representation by his counsel Mr Ian Polack, although in considering the complaint there can not be excluded Mr Polack’s part in the conduct of the defence case.
68 It was not easy to pin down the respects in which the appellant complained of failure in representation. Apart from the aspects relating to Detective Senior Constable Gargan, the principal respects appeared to be -
(a) dealing with the drug matters as part of the trial and editing the interviews;
(b) editing the letters;
(c) evidence from AE;
(d) evidence from NC;
(e) evidence from one John Gordon;
(a) dealing with the drug matters as part of the trial and editing the interviews(f) evidence as to the features of the appellant’s penis.
69 The appellant had been charged with the supply of restricted substances. In one of the written submissions the appellant said -
- “Why were the drug matters separated when the drug matters seemed to be the main alleged incident leading to the alleged offences? The drug matters were of importance to the defence case in proving that the Crown witnesses had in fact fabricated the allegations as documents would have proven and evidence of a pharmacist in relation to the amount and effects of said drugs consumed. I was never in agreement with this and raised my objections in the courtroom.”
70 In his oral submissions the appellant took this further. In summary, as best I understand it, his reasoning was that (i) in their statements given to the police on 26 September 2003 (which I have said were not before the jury) JN and NC had told of extensive supplying by the appellant of prescription drugs to the occupants of the units; (ii) the drugs and the quantities of which JN and NC spoke were such that what they said in their statements could not have been correct, because the quantities of the drugs would have left their consumers quite unable to function; (iii) this would have shown that JN’s evidence as to the foursome, and generally, was false; and (iv) his lawyers should have brought out before the jury the allegations of supplying drugs made by JN and NC and, through pharmacological or toxicological evidence, the extravagance of those allegations, in order to destroy JN’s credibility.
71 It followed, as was part of the submissions, that the appellant’s lawyers should not have opposed the Crown’s proposal to lead evidence of taking the drugs supplied by the appellant, and there should not have been the editing of the tapes of interviews to exclude reference to the drug-taking. In his evidence in this Court the appellant said that at the time he did not agree with his lawyers and argued with them, and “I wasn’t happy about the drugs being separated and I wanted it before the jury”.
72 Apparently as a related complaint, two paragraphs in the written submissions asked why a toxicology report was not carried out to establish that prescription medication prescribed to the appellant was in fact in CD’s system “as alleged in the statements of [NC] and [JN]”, and “why wasn’t there any medical report obtained on [CD] such as toxicology … test”. The appellant contended that drug-taking affected memory and that CD’s drug-taking should have been established in order to question her reliability.
73 Apart from the appellant’s denial that he had supplied drugs, there were obvious difficulties.
74 Mr Imlah said that his opinion, and that of counsel, was that it would not have assisted the appellant to show that CD was under the influence of a drug at any relevant time, and -
- “The last thing we saw to be in the Appellant’s interest was to revisit the alleged facts that he may have assisted [CD] to obtain drugs. Further, it would only have been seen as a matter of aggravation if the Crown could show that 14-year old [CD] may have been under the influence of a drug at any time she had intercourse with the Appellant or that the Appellant had knowledge of this fact if it was proved.”
75 Similarly, it would have been wholly against the appellant’s interest to have exposed before the jury, in the hope that pharmacological or toxicological evidence would cut down the credibility of evidence to be given by JN and (as expected at the time) NC, extensive supplying of drugs by the appellant to the occupants of the units; there was every reason to fear that the appellant would be left under the heavy pall of supplying drugs to the teenagers. If it were mooted at the time, Mr Imlah (and Mr Polack) made a correct decision.
76 The correctness of the course taken by Mr Imlah and counsel is compelling. There was no evidence that they disobeyed direct instructions in taking it. A letter from Mr Imlah in the materials put by the appellant before the Court said of “the edited record of interview dated 26.10.2005” that “it was decided by us all at trial that there would be no objection to the edited ROI as in fact it seemed to assist your case if anything”. From another letter, the ROI was the appellant’s interview of 26 September 2003 and the editing was to remove “questions concerning the supply of restricted substances namely prothiaden and valium”. The likelihood is that at the time the appellant agreed.
(b) editing the letters
77 The letters were edited to remove reference to a history of incarceration, and from the appellant’s evidence in this court to remove references to him “being a standover person, being a racist, hating niggers”. The appellant said that he understood why there had to be editing “but I wanted the full picture before the jury. I didn’t want the jury wondering”. It is sufficient to say that his lawyers’ participation in the editing was a rational course, in the appellant’s interest.
78 As a related matter, it appears that the appellant’s complaints included failure to tender in his case letters written to him by CD while he was in prison in the latter part of 2003. The appellant’s counsel cross-examined CD on the letters, taking her to some parts of them. The Crown called for the letters, the appellant’s counsel objected to making them available, and the trial judge ruled that they need not be made available. It was not explained why the use of the letters in this way was to the appellant’s disadvantage rather than to his advantage. There is no substance in the complaint.
(c) evidence from AE
79 Mr Imlah had file notes as at 14 February 2005, a few weeks before the trial, that AE had left her last known address and that the mobile number he had was telephoned without success. He said that he and counsel were both of the view that, even if AE could be located, to call her as a witness would not have been desirable because it would have disclosed a sexual relationship between the 35 year old appellant and the 16 year old AE, with implications for a relationship with the 14 year old CD. He said as well that immediately prior to the trial the appellant said “that he had an ambivalent or estranged relationship with [AE] and that she may not be favourable to his case”.
80 It was not suggested what more Mr Imlah should have done to try to find AE, and even if she could have been found in what way it was a rational forensic decision that she should be called. When she was not called by the Crown, the appellant’s counsel sought to cast doubt on the Crown’s diligence in taking a statement from AE, and in his address to the jury observed that “[t]he last we hear of [AE] is of her signing an affidavit at the Legal Aid office in December before returning to Sydney”. It was an understandable course to leave a suggestion that the Crown case was wanting because the Crown had not called AE.
(d) evidence from NC
81 The Crown had given notice that it intended to call NC. When it first emerged that NC might not be able to give evidence because of a medical condition, Mr Polack informed the trial judge that he wanted NC called. There came medical opinion that NC could not foreseeably give evidence. In the result, the jury was informed as I have earlier described.
82 In the course of his submissions the appellant said a number of times that he wanted to have NC called and cross-examined. As best I understand it, his present reasoning was that JN and CD in collaboration made false allegations of sexual misconduct so that the appellant would be kept in gaol, wanting the appellant to be kept in gaol because it was feared that the appellant would do someone physical injury. The occasion for the fear was that NC was a disturbed person prone to violent behaviour, and in particular on about 24 September 2003 had “skitzed out” and behaved badly towards AE bringing about a physical confrontation with the appellant. The fear seemed to be of physical injury to JN, although at times the motive attributed by the appellant to CD was fear that the appellant would do harm to AE; why the confrontation with NC meant that the appellant might harm JN or AE was not particularly clear. In the appellant’s eyes, it was important that NC’s disturbed and violent nature and the occasion of his “skitzing out” be established.
83 CD’s interview included an account of NC going “off his head” on the night of 24 September 2003, and she gave evidence that AE had sought to take out an AVO against him. I have referred to the appellant saying that he had beaten NC up. JN gave evidence in chief of an incident between NC and AE, including the appellant saying to NC “Ah, I’ll smash you”, and elaborated in cross-examination. The appellant’s interview included his assertion that CD “buckled under pressure”, implicitly from JN, from belief that the appellant would harm JN. Even without evidence from NC, there was a basis for the appellant’s present reasoning. But CD’s cross-examination did not include putting to her that fear of the appellant doing physical injury to JN, or to AE or herself, caused her to make false allegations of sexual misconduct. Nor was that put to JN.
84 Had counsel wished to pursue the reasoning I have attempted to describe, he could have done so without evidence from NC. He did not pursue it. Counsel said bluntly, when NC’s unavailability was confirmed, that “[t]he defence wants the trial to continue”. This also was a rational forensic decision.
(e) evidence from John Gordon
85 Mr Gordon was a prisoner in the same gaol as the appellant. The appellant told Mr Imlah that Mr Gordon would give evidence to support that the appellant was being “set up” by CD and JN in order to obtain victim’s compensation. In November 2004 Mr Imlah and Mr Polack’s predecessor as counsel interviewed Mr Gordon. The materials put before the Court by the appellant included what appeared to be notes of that conference, difficult to read but possibly recording that Mr Gordon said that CD had told him “we’re setting this bloke up for drugs. So we get money from coppers”.
86 According to Mr Imlah, however, it emerged that what he described as Mr Gordon’s “limited recollection” was largely based on what the appellant had told him. He advised the appellant that Mr Gordon would not assist his case and should not be called, as he would not be found credible. There is no proper basis for contesting the validity of that advice, or doubting that it was accepted at the time.
87 As a related matter, Mr Imlah said in his affidavit that another person, in his oral evidence identified as the Nathan earlier mentioned, arrived at court during the trial prepared to give similar evidence derived from conversations with the appellant. Mr Imlah said that the person “also indicated that the Appellant had made a certain admission to him that would irreparably damage the accused’s case”. Nathan was not called. Although the appellant did not appear to rely on failure to call him, the position is the same.
(f) evidence as to the features of the appellant’s penis
88 Mr Imlah accepted that the appellant consistently instructed that his penis at the time was highly unusual in appearance, and that this should have been noticed by CD. He explained bureaucratic difficulties in arranging a medical examination of the appellant’s penis, and that an examination was eventually carried out by Dr Brian Witt on 17 March 2005. That was the day on which CD concluded her evidence.
89 According to Dr Witt’s report of that date, there was a slightly darker area which the appellant called a birth mark, although one difficult to see, and a transverse scar, but he would “not have viewed these areas as noticeably abnormal”. Under the ventral aspect of the penis there was a transverse piercing of an approximately 12 mm long bar with approximately 3 mm diameter white plastic balls on either end. It was removable, and he was told by the appellant that the appellant had previously had a gold stud in that location.
90 The asserted features of the appellant’s penis were put to CD. The appellant gave evidence of the features, and as I have said he was not cross-examined. Mr Imlah said that he and counsel considered that the appellant’s case was not assisted greatly by the evidence from Dr Witt, as there was no way of definitely proving that the appellant was wearing the gold stud at the time.
91 There was no evidence of whether or not specific instructions were sought after Dr Witt’s report was obtained, or whether at the time the appellant agreed with Mr Imlah and counsel. There may have been a degree of advantage to the defence case, even if it could not be shown (otherwise than by the appellant’s evidence) that he was wearing the gold stud at the time, but it was not clear how noticeable the piercing would have been without the bar or stud at the time of the sexual acts. Ultimately it was for the jury to assess the divergence between CD’s evidence and the appellant’s evidence of the features of his penis, as part of their overall attention to whether the offences had been proved beyond reasonable doubt. In my opinion, it was open to Mr Imlah and counsel to decide, as one of the decisions upon what evidence to call falling within their conduct of the defence case, that evidence should not be called from Dr Witt.
92 The materials put before the Court by the appellant included a doctor’s report of an examination for “body identifying marks” made in December 2007. It referred to scars and piercing on the penis. It took matters no further than Dr Witt’s report.
93 The appellant said that he also complained on appeal that Mark Reynolds and Gary McKennet were not called. Mr Reynolds, he said, could confirm that he used to walk from the premises to his home. Mr McKennett claimed that JN had a claim for sexual assault against a third person. If the lawyers were made aware of these potential witnesses, they were entitled to regard their evidence as of little if any importance and decide that they should not be called.
94 Inadequate representation must give rise to a miscarriage of justice within s 6(1) of the Criminal Appeal Act 1912. For discussion of when the conduct of the defence case by a legal representative gives rise to a miscarriage of justice, reference may be made to TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1; and Rudd v The Queen [2006] HCA 9; (2006) 225 ALR 161. The legal representative has a wide discretion in the conduct of the case, and must routinely make tactical decisions as to what evidence to object to, what evidence to call, and in other respects. The party represented is bound by those decisions. A rational decision, even if later regretted, will not make a trial unfair or produce a miscarriage of justice, and what must be shown is loss of a chance of acquittal which was fairly open to the accused.
95 In my opinion, individually or collectively the matters to which I have referred did not give rise to a miscarriage of justice.
Wrongful admission of evidence
96 It is not clear from the appellant’s submissions what evidence he had in mind. The only ruling of significance was in relation to the letters written by the appellant to CD while in prison, and one of the written submissions included -
- “Argument that letters from me to alleged victim in evidence (prejudicial value exceeds probative value) the letters shows no suggestion of a sexual relationship – only a close relationship and concern.”
97 As I have earlier indicated, the principal unfair prejudice on which the appellant relied before the trial judge was that on their face the letters were written while the appellant was in prison. The trial judge ruled that they were “on one reading capable of supporting the Crown case” but “[g]iven another reading it will be said that they do not show anything more than concern for her welfare”, and that that prejudice could be dealt with by directions to the jury concerning the appellant’s bail situation and “the fact that a person is in custody does not in any way prove that he committed these offences with which he is charged”. His Honour said he understood that the “other prejudicial matters”, unspecified, were to be addressed by editing, and that he would deal with any disagreement if it arose. He was not called on to do so.
98 The Crown Prosecutor’s opening referred to the appellant’s arrest on 26 September 2003 and that he was charged with offences, and in general terms the Crown added that -
- “ … you’ll hear evidence that after Mr McCarthy had been arrested and first interviewed by the police, he was arrested and put before the Court and a magistrate refused him bail. The Crown asks you not to draw any adverse inferences from that. It’s a matter that happens all the time but it puts in context those letters where it’s clear that by that stage, and I’m talking now about October and early November 2003, that correspondence is in the context of [CD] and the accused being physically separated, he clearly harbouring continuing affection towards her and you’ll hear evidence from [CD] that at that stage she was still certainly harbouring some continuing affection towards the accused but was in a state of some confusion.”
99 At the end of that day the trial judge said -
- “HIS HONOUR: Now members of the jury before we break up there are two or three things I have to say to you. First of all you will remember that in his opening address the Crown Prosecutor told you that the accused had had some difficulties with bail and you would have gathered from these letters that some of them, at any rate, were written after he was arrested in October [sic]. Now you are correctly told that that has got nothing to do with proving this case, all sorts of reasons why people might have problems with bail at one time or another, there is a long and complex act about bail and a moment’s reflection will show you that there is no way in the world that problems with bail could prove whether or not he committed any of these offences, that is a matter for the evidence that you have just started hearing. So the problems with bail you are aware of them, put them out of your mind and certainly do not hold them against the accused.”
100 The trial judge did not in the summing-up give any specific directions in relation to the letters, nor when invited in the conventional manner did counsel ask that he do so.
101 All concerned appear to have accepted that any risk of unfair prejudice had been appropriately dealt with. The appellant’s submission assumed an innocuous reading of the letters. How were they to be read was ultimately a matter for the jury, but they were clearly open to a reading probative in the Crown case and such risk of unfair prejudice as there was was comprehensively outweighed by the probative value of the letters. There was no error in the trial judge’s ruling, or in the manner in which the letters were thereafter dealt with.
Making out the Crown case
102 The legal guise of the various points put forward as grounds of appeal is that the verdicts of the jury should be set aside on the ground that “they are unreasonable or cannot be supported, having regard to the evidence”: Criminal Appeal Act s 6(1).
103 The Crown Prosecutor in his address to the jury said that CD was “the principal prosecution witness”, and that if the jury was left in a real doubt in relation to her evidence the charges failed. Counsel for the appellant, in similar vein, began his address by saying, “We say you can’t trust what [CD] says so basically the other evidence is the evidence in the letters [sic] … don’t show that there’s a sexual relationship between the accused and [CD]”.
104 The trial judge appropriately directed the jury upon the burden of proof and the necessity for proof beyond reasonable doubt. His Honour’s directions emphasised that it was necessary that the jury accept CD’s evidence -
- “Now the next thing I direct you about is that in this case there is, in essence, one witness who is essential to the proof of the Crown case, and that is the witness [CD], and you should therefore examine and scrutinise her evidence with great care before you decide whether you accept her evidence.
- Since it is for the Crown to prove its case beyond reasonable doubt, and the evidence given by that witness is the only evidence relating to some of the essential matters that the Crown must prove, then it follows that you must be satisfied beyond reasonable doubt that you should accept her evidence otherwise the accused must be found not guilty.”
105 The jury was further directed that it was for the Crown to establish that CD “is honest and reliable in giving her evidence supportive of its case, it is not for the accused to show that she was either dishonest or unreliable”, and that “[a]s the case turns on the evidence of CD you have got to be satisfied, beyond reasonable doubt that CD has told the truth”.
106 There were many facets in the evidence, and the addresses were fairly wide-ranging. The appellant’s counsel properly brought out and relied upon the particular features of discrepancies in CD’s evidence and the denial of any sexual misconduct in the affidavit signed at the Legal Aid office, and put to the jury a variety of reasons for doubting the evidence of CD. On the other hand, CD’s evidence of the foursome was supported by the evidence of JN, albeit that he professed a less than complete recollection, and that there had been a sexual relationship was supported by the letters written by the appellant to CD while in prison; it is difficult to read the letters as no more than flirting with CD lest her expressed love for the appellant be unkindly rebuffed.
107 The appellant asserted at various times in the course of his submissions that witnesses in the Crown case had perjured themselves. In part his submissions were concerned with perjury in relation to the certificates under s 128 of the Evidence Act, to which I have earlier referred. There was no further or fresh evidence before this Court establishing perjury, and the appellant’s assertions were submissions as to where the truth lay.
108 The question on appeal is whether on the whole of the evidence it was established beyond reasonable doubt that the appellant was guilty, see the discussion in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493-495. If the Court on appeal were to consider that there is a reasonable doubt, it is likely to be a doubt that a jury ought also to have experienced: M v The Queen at 494; MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 at [56].
109 If there be doubt in the mind of the appellate court, it is only where the jury’s advantage in seeing and hearing the evidence can explain the difference that the appellate court is able to reach the conclusion that there has been no miscarriage of justice: M v The Queen at 494; MFA v TheQueen at [56]. On the evidence in this trial, there is no reasonable doubt raised, and it was open to the jury to be satisfied beyond reasonable doubt that the truth lay in the evidence of the sexual acts given by CD.
(a) jury notes
Other matters
110 The appellant referred in the material exhibited to his affidavit, and raised in his oral submissions, some notes received from the jury.
111 On 14 March 2005, shortly after CD was called to give evidence, and in the absence of the jury while arrangements were being made for the tapes of her interview to be played, the trial judge said -
- “Now its just been brought to my attention that one of the jurors is a work colleague of the witness support officer, sorry of a sexual assault counsellor. Now I don’t know whether this lady was involved in this case, the name that we’ve been given is Bronwyn Myers”.
112 It is not clear how the trial judge came to know of this, and if there was a note from the juror it was not marked for identification.
113 The Crown Prosecutor said that Ms Myers had been “the support person present during the police interview”, being the interview with CD on 30 December 2003. She was referred to as such on the tapes, although they were yet to be played. The trial judge invited counsel for the appellant to “consider your position over lunch and discuss it with your client”.
114 After the luncheon adjournment the appellant’s counsel asked the trial judge to “inquire further as to whether the juror had any knowledge of this matter when it occurred and had any discussion with Bronwyn Miles [sic] about, about the case.” The Crown Prosecutor agreed that that would be a proper course.
115 The juror came into court. The transcript of her answers to the trial judge’s enquiries is incomplete, with “no microphone” and “not transcribable” in parentheses on a number of occasions, but what is recorded clearly conveys that the juror had not seen Ms Myers for four or five years and had not had any discussion of the case with her.
116 The trial judge asked the Crown Prosecutor and counsel for the accused whether there was anything else they felt should be asked, and both replied in the negative. The juror returned to the jury room. His Honour asked counsel for the appellant whether he wished to take instructions, and counsel said that he had “taken visual instructions and there’s not a problem your Honour”. The trial continued, and no more was said.
117 The appellant said that any visual instructions were not taken from him. It is plain that the appellant was present in court, and I do not accept that he was unaware of what occurred. In my opinion, there is no basis for complaint of the manner of dealing with the juror’s association with Ms Myers.
118 On 15 March 2005, the second day of the trial, a note was received from a juror stating that because of a job he had held at a boarding-house -
- “ … theres [sic] a very good chance I might know some witnesses especially one bloke mentioned in statement as JN not sure of his surname. It doesn’t bother me at all but I thought I better mention it.”
119 The note was later marked as MFI 1. JN had been referred to in the Crown Prosecutor’s opening.
120 The transcript records the appellant’s counsel saying that the note “doesn’t cause me a problem”, and his implicit assent to the trial judge’s proposal that the jury be told “if it becomes a problem for him he must let us know”. His Honour told the jury -
- “The author of the note says that they’re not bothered at this time, you may take it nor is anybody else at this time. If it becomes a bother, no doubt the author of the note will let us know further, thank you very much.”
121 The appellant’s complaint was expressed, “Why wasn’t I told?” The appellant must have been in court at the time, and there is nothing in the transcript to indicate that he was not. It may be that his counsel did not specifically seek instructions on the juror’s note, but it was a matter which counsel could deal with as one of the many decisions to be made in the conduct of the defence. All must have understood that “becoming a problem” or “becoming a bother” meant that the juror realised, when he saw a witness, that he did know the witness. Counsel was content to leave matters as they were until, if that happened, the juror let the trial judge know. I do not think that was an incorrect course.
122 At the close of the Crown case another note was received from the jury, reading -
- “I played touch football with Tony O’Brien approx 3 years ago but have had no contact with him since then.”
123 The note was marked as MFI 4. The transcript records -
- “HIS HONOUR: Did you both see the note from the jury?
- POLAK; I did, I don’t think it’s ---
- HIS HONOUR: Any problem for anyone.
- POLAK: No, your Honour.
- CROWN PROSECUTOR: No, your Honour.”
124 In the evidence of Detective Senior Constable Williams given shortly before receipt of the note, Mr Tony O’Brien had been named as the DOCS officer with her when she spoke to CD and AE on 26 September 2003. As earlier mentioned, CD refused to be interviewed and was uncooperative and argumentative.
125 In his submissions the appellant said of this, as of the two previous notes, that the juror was “associated with the Crown”. This is hardly correct by reason of playing touch football with Mr O’Brien, but the juror’s contact with Mr O’Brien had ceased over 18 months prior to September 2003 and provided no basis for concern that the juror would not be true to the juror’s oath. The information conveyed by the note was appropriately dealt with.
126 There was no miscarriage of justice in the manner of dealing with the notes from the jury.
(b) Mr van Dugteren and the affidavit made at the Legal Aid office
127 The materials put before the court by the appellant included a copy of an affidavit affirmed by Mr Hugh van Dugteren on 26 May 2008. Mr van Dugteren had been a legal aid officer, and CD’s affidavit of 8 December 2003 had been made before him. He said in his affidavit that he had a “vague recollection” of the attendance, and that he did not “place any pressure on” either CD or AE to make their affidavits.
128 Assuming this was intended as further evidence on appeal, it is of minimal, if any, significance, and should not be received as further evidence.
(c) the jury retiring with the tapes of CD’s interview
129 The Crown drew attention to the decision of this Court in R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628. The decision was given some months after the appellant’s trial had concluded.
130 It was held in R v NZ that, while there was not a rule of practice or procedure to be followed in every case where the evidence in chief of a witness had been given by the playing of a video tape, generally the video tape evidence should not become an exhibit and therefore be sent with the exhibits to the jury on retirement; and further, that any transcript given to the jury should be recovered after the evidence of the witness had been completed (at [210] per Howie and Johnson JJ). However, it was also held that, apart from whether lack of objection meant that r 4 of the Criminal Appeal Rules applied, in the particular circumstances (which were identified at some length) it could not be concluded that the trial was “unbalanced by the presence of that material in the jury room” (at [221]) and there was not a miscarriage of justice.
131 In Wilson v R [2006] NSWCCA 217 it was also held that, in the particular circumstances, departure from the preferred procedure referred to in R v NZ had not given rise to a miscarriage of justice.
132 In the present case the jury retired with the tapes of CD’s interview of 30 December 2003 and of the appellant’s interviews of 26 September 2003 and 2 March 2004. The jury were provided with transcripts. They were properly instructed that the transcripts were an aid but not evidence and the tapes were the evidence, but no doubt they retired with the transcripts also.
133 When the preferred procedure referred to in R v NZ has not been followed, the question is whether there has been a miscarriage of justice. The central reason for the preferred course is that re-playing of the video tape of the evidence in chief could cause the jury to place an undue weight on the witness’ evidence or otherwise bring about an imbalance in their consideration of the respective cases.
134 In the present case, and putting aside r 4, I am satisfied for a number of reasons that no miscarriage of justice occurred.
· The jury retired at 12.45 pm on 22 March 2005 and considered their verdicts until 4.10 pm, resumed on the next day at 9.32 am, and returned the verdicts at 10.30 am. The tapes of CD’s interview are approximately 2 hours in length. The jury had a considerable amount of material for consideration, and I think it unlikely that they would have played the tapes given the relatively short time for which they were deliberating.
· We have listened to excerpts from the tapes, in order to assess how they might have been regarded by the jury. The sound quality is very poor, and in my opinion it becomes highly unlikely that in the course of their deliberations the jury would have played the tapes.
· Even if the jury had played the tapes, they were audio tapes not video tapes. CD’s responses to the interviewer’s questions were flat and unemotional. There would not have been an undue impact on the jury from listening to the tapes.
· The jury may have had reference to the transcript of the tapes, but they also had the transcripts of the tapes of the appellant’s interviews. The transcripts provided words on pages, without differential impact on presentation.
· CD had given further evidence in chief, and had been cross-examined over a lengthy period. Her cross-examination had in substance canvassed her accounts of the sexual acts. This was far more likely to provide the lasting and significant impression on the jury. The jury had every opportunity to assess her credibility from observation, not from the tapes or the transcript.
135 I do not think that CD’s evidence given through the audio tapes would be unduly prominent in the jury’s minds through retirement with the tapes and transcript.
General
136 There was repetition and irrelevance in the appellant’s written and oral presentation of his case on appeal. Some of the matters considered in these reasons might be thought of little consequence; much else of what the appellant appeared to regard as significant was inconsequential or founded on an untenable appreciation, or lack of appreciation, of the need to show a miscarriage of justice. Sometimes it defied rationality. I have considered all that the appellant put before the Court. In my opinion, a ground or grounds of appeal whereby there was a miscarriage of justice have not been established.
137 I propose that the time for appealing be extended to 17 August 2006 but the appeal be dismissed.
138 ROTHMAN J: I agree with Giles JA.
139 PRICE J: I agree with Giles JA.
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