Mitchell v The Queen
[2022] VSCA 32
•15 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 273
| THOMAS MITCHELL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, BEACH and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 February 2022 |
| DATE OF JUDGMENT: | 15 March 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 32 |
| JUDGMENT APPEALED FROM: | [2019] VCC 305 (Judge Smallwood) |
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CRIMINAL LAW – Appeal – Conviction – Application for extension of time to file application for leave to appeal – Applicant convicted of aggravated burglary and rape – Whether evidence established beyond reasonable doubt that applicant entered premises as a trespasser – Whether evidence established beyond reasonable doubt that applicant anally penetrated complainant – Whether any error in bad character direction given by judge – Whether judge’s criticisms of defence counsel address undermined jury’s view of defence counsel’s credibility or competence – Proposed grounds of appeal not reasonably arguable – Explanation for delay unsatisfactory – Futile to grant extension of time – Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L J D Howson | Greensill & Associates |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
BEACH JA
SIFRIS JA:
On 27 February 2019, following a six-day trial in the County Court, the applicant was found guilty of one charge of aggravated burglary (charge 1) and two charges of rape (charges 2 and 3). On 13 March 2019, following a plea hearing on 12 March 2019, the applicant was sentenced to a total effective sentence of 14 years, with a non-parole period of 8 years and 4 months.[1]
[1]DPP v Mitchell [2019] VCC 305 (‘Sentencing Reasons’).
The applicant now seeks an extension of time within which to seek leave to appeal against conviction and, if the extension of time is granted, leave to appeal against conviction. His proposed grounds of appeal are:
1.The evidence in support of aggravated burglary did not establish guilt to the requisite standard of proof.
2.The evidence in support of anal rape did not establish guilt to the requisite standard of proof.
3.The direction on bad character evidence unfairly undermined the credibility of the applicant.
4.The exceptions taken during the closing argument of defence counsel and the criticisms during the course of the charge:
(a)seriously undermined the credibility and competency of counsel in the eyes of the jury; and
(b)created a real risk that the jury formed the impression that the judge thought the defence case to be without merit.
The application for an extension of time within which to seek leave to appeal against conviction was filed some 20 months after the expiration of the 28 day time limit provided in s 275 of the Criminal Procedure Act 2009. The extension of time application requires a consideration of the merits of the applicant’s proposed appeal and the applicant’s reasons for not filing his application for leave to appeal within the prescribed time.[2] The respondent submitted that the extension of time application should be refused because there is no merit in any of the applicant’s proposed grounds of appeal. Accordingly, it is appropriate to commence our analysis by considering the merits of the applicant’s proposed appeal.
[2]Kentwell v The Queen (2014) 252 CLR 601, 613–4 [29]–[33]; [2014] HCA 37.
The Crown case
The events in dispute at trial occurred in February 2018. At that time, the applicant was 39, and the complainant was 36. The complainant has a cognitive impairment and suffers from a progressive neurological disorder, Relapsing Remitting Multiple Sclerosis, which causes her to suffer from numerous physical symptoms, including difficulties with mobility, motor coordination, bladder control and swallowing, and the need for her to be fed via a PEG[3] tube through her stomach.
[3]Percutaneous Endoscopic Gastronomy.
In February 2018, the complainant lived with her son and two daughters in Merbein. The Crown case was that at approximately 11:00 pm on 20 February 2018, the complainant was at home with her daughters, who were asleep. Her son was at a friend’s house. The applicant, who was unknown to the complainant, knocked on her front door. The complainant was sitting on her wheelie-walker at the time and spoke to the applicant through her front flyscreen door, while the applicant was standing on the front porch. The applicant said to the complainant, ‘Hey sister girly, have you got a cigarette?’. The complainant said that she did not have a cigarette and that she did not know who he was, as she was ‘just new to the community’. The applicant responded, ‘So you know me: you know, Thomas’. He also said, ‘I’m staying up at the flats up on the corner … I’m number 2’. The complainant replied, ‘Oh sorry, I can’t help you out’ and ‘good luck’ and she closed the door on him.
Some two hours later, at approximately 1:00 am on 21 February 2018, the applicant returned to the complainant’s home. When the complainant went to the door, the applicant said, ‘Hey, sister girl, it’s Thomas … wouldn’t have a coffee, would ya?’. The complainant replied, ‘Hang on, I’ll get you a coffee’, and went to the kitchen to make the applicant a coffee. She was using her wheelie-walker at the time.
Charge 1: aggravated burglary (person present)
While the complainant was in the kitchen, the applicant entered the complainant’s home uninvited, approached the complainant, grabbed hold of her hair, pulled down her singlet and attempted to kiss and grope her. He forcibly dragged her off her wheelie-walker and onto the ground. The complainant landed flat on her stomach, causing her pain as she landed on her feeding tube.
The complainant struggled and tried to fight against the applicant by trying to grab and scratch him. In the struggle, the complainant received a bruise to her back. The applicant pulled the complainant’s shorts off, forced her head into washing which was on the floor, pulled her hands behind her back and spread her legs.
Charge 2: rape (penis/vagina)
The Crown case was that, after the complainant heard the applicant spit (believing that he spat on her) he inserted his penis into her vagina, causing her to feel pain.
Charge 3: rape (penis/anus)
The complainant then felt a ‘different kind of pressure’ like an ‘intensive sharp pain’ as the applicant inserted his penis into her anus. The applicant ejaculated and pulled his shorts up. The complainant looked over her shoulder and watched the applicant leave. She then got up and locked the front door.
The trial
Prosecution witnesses and evidence
The principal Crown witness at trial was the complainant. She gave evidence, via a VARE,[4] largely in conformity with the Crown case. In relation to the applicant’s second visit to the complainant’s home, and the three offences with which the applicant was charged, the complainant gave evidence that she was waiting up for her son to come home. There was a knock on the door. The applicant made the request for a coffee, to which we have already referred. The complainant’s evidence as to what occurred next was as follows:
I said, ‘yeah, well, hang on, I’ll get you a coffee’, and I must’ve forgot to click the screen door and before I knew it he was in the kitchen where he come straight … I’ve realised — turned around — that he’s in my house. His coffee was in a mug. I made a coffee in a mug for him. I don’t even know if he drank. Next minute, before I knew it, he’s trying to kiss me, grab me breast, grab me — hand over my face so … I was on my wheelie-walker too, I wasn’t in my chair, I had my wheelie-walker, which is one of those old red granny wheelie-walkers. And before I knew it, he grabbed me … and he grabbed my hair and thrown me to the ground. Tried to grab the bench as — I fell on my PEG, and I fell on my stomach, tried to fight him off, and the scuttle [scil, scuffle] ended — came from the kitchen floor, and it ended up into near the laundry and the bathroom. He proceeded to rip off my pants, spread my legs. I heard him spit. And I’m weak in my legs, I couldn’t kick him off, I couldn’t do — and obviously, like, he’s a big fella … so I’m on my stomach, my face is — I have my washing in my laundry … and so obviously my face was down and muffled. He proceeded to hold my hair while he raped me vaginally, and I’m pretty sure he raped me anally too, but I can’t feel due to motor neurone disease. But I could feel him deep inside, like, it was just — and no matter what I could do, I couldn’t get him off. It lasted for about may be five or 10 minutes, and then the dirty dog just stood and pulled his pants up and just walked out of my house. I lied there and cried.
[4]Video Audio Recording of Evidence.
Later in her evidence, the complainant said:
Now I’m pretty sure he not only vaginally assaulted me but he also anally assaulted me, but because I can’t feel properly, all I could feel was that pain going inside me. … [A]ll I could feel was this intensive, like, sharp … pain … when he entered me. … but then I felt a different pressure, and that’s when I think that he’s anally assaulted me. … I have semen in my bottom, on my right bottom cheek … and it was on my shorts.
In cross-examination, the complainant said that she never invited the applicant into her home. She specifically denied inviting the applicant into her home for coffee. She was then asked and answered the following questions:
All right, and you say that he raped you vaginally and you believe he raped you anally as well, you’re not sure about that, is that correct?---No. What I said was because I don’t have much strength and feeling in my legs that after I felt the pressure of him going into my vagina, I also felt a deeper pressure, not long after, that was excruciating pain in, towards my back. So, yes, I believed … .
When you say, ‘back’, do you mean, your backside, inside your anus?---My back, my back — yes, I do, in my back … in towards my back passage, yes.
Towards the end of her cross-examination, the complainant was asked and answered the following questions:
All right. Mr Mitchell [the applicant] says he did not have intercourse with you, do you agree?---No.
He says he did not penetrate you either vaginally or anally, do you agree?---No.
Your evidence is that he penetrated you, both vaginally and anally and that he ejaculated inside of your vagina, is that your evidence?---That was my evidence.
Yes?---And also over my butt cheeks.
In addition to the complainant, the Crown called one of the complainant’s daughters and two neighbours to whom the complainant spoke shortly after 3:00 am on 21 February 2018. The Crown also called a forensic medical officer, Dr Gerald Murphy, who conducted a forensic medical examination of the complainant on the afternoon of 21 February 2018; a forensic scientist with expertise in DNA, Janelle Heffernan; and the informant, Detective Senior Constable Sharon Tipping. Having regard to the proposed grounds of appeal and the contentions of the parties, it is not necessary to summarise all of this evidence. It is sufficient to note the relevant parts of the evidence of Dr Murphy and Ms Heffernan as follows.
Dr Murphy gave evidence that, during his examination of the complainant, he took a number of medical swabs, from which slides were then prepared. He observed the complainant to have a number of bruises and abrasions on her knees, which were consistent with a history, given by her to him, of ‘falling a lot’. He also observed a fresh looking bruise on the lower right lumbar region of the complainant’s back.
Ms Heffernan gave evidence about DNA profiles located on the complainant’s left breast and two areas in the hip region of pants the complainant was wearing on the night in question. In relation to the left breast sample, Ms Heffernan’s evidence was that the statistical rating and likelihood ratio was 100 billion times more likely if the accused was a contributor to the sample. In relation to the first sample from the complainant’s pants, the statistical rating and likelihood was 23 million times more likely if the accused was a contributor. The statistical rating and likelihood ratio in respect of the second sample was 2.8 million times more likely if the applicant was a contributor.
Defence witnesses and evidence
The applicant gave evidence at trial and called two witnesses: the applicant’s brother, Lucas Mitchell, and Ivan Crick. The purpose of calling the applicant’s brother and Mr Crick was to give the applicant an alibi covering the time during which the alleged offending occurred. From the applicant’s point of view, the evidence of his brother and Mr Crick did not go well at trial. Mr Crick gave evidence about the events of a different day, rather than the events of the day and night in question; and the applicant’s evidence was materially inconsistent with significant parts of the evidence given by his brother. By their verdicts, the jury plainly did not accept the alibi evidence. Having regard to the proposed grounds of appeal and the issues in dispute in this Court, it is not necessary for us to make any further reference to the evidence at trial of the applicant’s brother and Mr Crick.
The applicant gave evidence denying that he went to, or was present at, the complainant’s home on the night of 20 February 2018 or in the early hours of 21 February 2018. The applicant’s evidence was that he first met the complainant on the afternoon of 20 February 2018. He said that he walked over and introduced himself to the complainant and her daughter, and then a cousin of his, Darren Wise, came out of the house. Mr Wise asked the applicant whether he ‘wanted a cuppa’. The applicant said yes, and the complainant responded by saying that she would go and make it.
The applicant’s evidence was that he was then invited inside and that he, the complainant and Mr Wise sat at a table in the dining room.
The applicant said there was some discussion about ‘family life and stuff like that’, and later some discussion about art. The applicant said that he had a few of his brother’s paintings which the complainant might be interested in. The applicant’s evidence was that the complainant was interested, and so he went to grab some.
After he returned to the applicant’s home, the applicant sat back down at the table. He was asked and answered the following questions:
And what happened after you sat back down at the table?---We’re just talking about our personal life again and she asked if I was single and I said yes and she said she was single and she said yes and then so — and then I asked her ‘What’s my chances?’ and she smiled and ‘Yeah, we’ll see’, yeah.
And after that?---Yeah, then after that, like we just started — we was talking about life and that they’re, you know, where she come from. … [A]nd then I said ‘Oh it’s getting — the sun’s going down now, might as well go home ‘cause my brother might lock me out or he might go somewhere, yeah, ‘cause I haven’t got a key for his flat’ and so I jumped up and then went to the door and then Darren came out, shook my hand and cuddled me and said ‘Goodbye Uncle Tucker’ and then he went back into the room and she sneaked over and we both looked at each other and, you know, shaked hands and then she pulled me towards her and I — then we just started kissing, yeah.
The applicant’s evidence was that the complainant then grabbed him again. They went to the back door, and he said ‘Nah’. They went into the laundry, and then into a shower. The applicant said:
She grabbed me and then started kissing and — she started putting her nails into my back and I went ‘Argh’, and I said ‘Nah, I can’t do this’. Yeah, yeah, and then I started thinking about our kids and that out the front and I didn’t want them to meet her like this, yeah. Then I stopped kissing her and then that’s when I went out — went out the door then.
Asked whether there was any stage when he might have touched the complainant on the breasts, the applicant said:
Yeah, I was kissing her on the neck and all that then, and after I finished kissing her and that there, she was fondling me around down below and — then I couldn’t do it, and then she just grabbed me shirt of something and started wiping my private parts. ‘What you doin’ that there for?’, and I said ‘Nah,’ I said ‘I’m right’, yeah, and I just, yeah, pulled my pants up and then walked — and I walked out the door and kissed her and said ‘I’ll come back tomorrow’.
In his evidence in chief, the applicant said that he left the complainant’s home at about 5:00 or 6:00 pm on 20 February 2018. He was asked whether he went back there later that night at about 10:00 or 11:00 pm, or at about 1:00 am the following morning, and he said, ‘No, I never’.
During the course of being cross-examined, the applicant volunteered that he had been gaoled. So, for example, the very first question and answer in cross-examination was:
Mr Mitchell, you were living with your brother, is that right? In his unit, his flat?---Yeah, before I got gaoled, yeah.
Similarly, the applicant volunteered that he was on methadone and that he had consumed ice in the past. It may be that he did so, in order to explain apparent discrepancies in his evidence. Earlier in the cross-examination, the applicant said that his memory ‘comes and goes’ before explaining that he was on methadone. Then, in giving an explanation for why, on the evening/night of 20 February 2018, he left his brother’s flat to go next door and do some tidying up outside (which was part of his account of the events of the night in question), he said:
I had a shot of ice … it makes you do things. … It makes you do things what you don’t do. Like, it makes you clean up and that there. You gotta keep your mind occupied when you’re on the stuff.
The addresses
The prosecutor addressed first. He submitted that the core issue at trial was whether or not the complainant was raped in the way she had described it, and whether the applicant committed an aggravated burglary when he entered the complainant’s premises. The prosecutor observed that the parties were ‘poles apart’ — with the applicant admitting an afternoon visit, but denying attending the complainant’s home later on in the night. The prosecutor submitted that the complainant’s evidence should be accepted, and that the applicant had lied ‘on every hard question’ and during the course of his evidence.
In his final address, counsel for the applicant told the jury that the complainant’s evidence was ‘not truthful’. He submitted that the complainant’s evidence was not supported, but in fact contradicted, by ‘other extraneous evidence’.
In the course of his final address, counsel for the applicant referred to what he said was a written report given by a GP named Dr Baseve. The judge intervened, asking when the evidence referred to by the applicant’s counsel was given and when the report from Dr Baseve was tendered in evidence. There then followed an exchange between the applicant’s counsel and the judge, which exchange is the subject of proposed ground 4. We will return to this exchange in our consideration of proposed ground 4. It is sufficient to say at this stage that the applicant’s trial counsel[5] was wrong to refer to material that was not in evidence in the trial, and the judge was correct in his identification of the factual assertions made by counsel which were not given in, or supported by, the evidence.
[5]Not counsel who appeared for the applicant in this Court.
The judge’s charge
In a comprehensive and detailed charge, the judge explained the law the jury was required to understand in order to determine the issues in the trial, summarised the evidence and referred to the way in which the parties put their cases.[6] It is not necessary for us to summarise all of the judge’s charge. Proposed grounds 3 and 4 take issue with the giving of a bad character direction (proposed ground 3), and what are said to be criticisms made by the judge of the applicant’s trial counsel during the course of the charge (proposed ground 4). We will deal with these aspects of the charge when we come to consider those proposed grounds of appeal.
Proposed ground 1: did the evidence in support of the aggravated burglary charge establish guilt to the requisite standard of proof?
[6]See s 65 of the Jury Directions Act 2015.
The applicant’s contention in relation to proposed ground 1 is that, even accepting the complainant’s evidence of what occurred at approximately 1:00 am on 21 February 2018, the evidence did not prove the mens rea for trespassing beyond reasonable doubt. The applicant submitted that the prosecution failed to exclude the possibility that the applicant entered the complainant’s home while believing he was authorised by her to enter it, notwithstanding any criminal purpose for which the applicant may also have entered the premises. He contended that the element of entry as a trespasser was not made out if he entered for a purpose which was authorised (to have coffee) and also at the same time for an unlawful purpose (to commit an assault). That contention relied upon the decisions of Barker v The Queen[7] and R v Taylor.[8]
[7](1983) 153 CLR 338; [1983] HCA 18 (‘Barker’).
[8](2004) 10 VR 199 (‘Taylor’).
The issue the applicant now seeks to ventilate in this Court was not the subject of any consideration or argument at trial. The applicant’s case at trial on the aggravated burglary charge was that he simply did not enter the premises at the time alleged by the complainant. He thus gave no evidence about any belief in an entitlement to enter the complainant’s home, either at her invitation or for the purpose of having coffee.
Proposed ground 1 is without substance. On the complainant’s evidence, it was well open to the jury to conclude that the applicant entered her home as a trespasser. The complainant’s evidence was that, on the previous day, when the applicant came to her door asking for a cigarette, the complainant had not allowed the applicant into her home. When he turned up a second time, asking for coffee, she spoke to him through a closed screen door. She did not invite him in. She said, ‘Yeah, well, hang on, I’ll get you a coffee’. It was open to the jury to conclude that the applicant being told to ‘hang on’ (particularly given this unusual request, made at an unusual time by a person the complainant did not know) could not have left the applicant in any doubt but that he was required to wait outside while the complainant went to ‘get [him] a coffee’.
In any event, Barker and Taylor are of no assistance to the applicant. On the complainant’s evidence, the applicant entered her home and almost immediately thereafter sexually assaulted her. In the circumstances, it was open to the jury to conclude that the only purpose for which the applicant entered the complainant’s home was to sexually assault the complainant — a purpose alien to any legitimate purpose for which the applicant might have believed he had the complainant’s permission. If that conclusion was reached by the jury, then the applicant entered the complainant’s home as a trespasser.[9]
Proposed ground 2: did the evidence in support of the anal rape charge establish guilt to the requisite standard of proof?
[9]Barker (1983) 153 CLR 338, 347; [1983] HCA 18; Taylor (2004) 10 VR 199.
Under proposed ground 2, the applicant submitted that, even accepting the complainant’s account of the sexual assault perpetrated by the applicant, the jury could not have been satisfied beyond reasonable doubt that the complainant was anally penetrated by the applicant. It was submitted that the jury could not have been satisfied to the requisite standard because, in evidence, the complainant only said that she was ‘pretty sure’ that she had been anally penetrated.
There is no substance in these submissions. In her evidence-in-chief, the complainant variously said, ‘I’m pretty sure he raped me anally too, but I can’t feel due to motor neurone disease’, and ‘I’m pretty sure he not only vaginally assaulted me but he also anally assaulted me’. The repeated use of the phrase ‘pretty sure’ was capable of conveying to the jury that the complainant had a high (but not overstated) degree of confidence in the accuracy of her descriptions.
Pressed in cross-examination about how sure she was, the complainant said, ‘… after I felt the pressure of him going into my vagina, I also felt a deeper pressure, not long after, that was excruciating pain … in towards my back’. Asked what she meant by ‘back’, she said ‘in towards my back passage’. She felt him inside, and she said that she had ‘semen in my bottom, on my right bottom cheek’.
On the basis of this evidence, it was well open to the jury to be satisfied beyond reasonable doubt that the applicant anally penetrated the complainant.
Proposed ground 3: the bad character direction
As we have already observed, during the course of his cross-examination, the applicant gave evidence that he had been gaoled and that he had used the drug ice. Prior to defence counsel addressing, the judge said to counsel that he would need to give a direction on bad character. Neither counsel objected to that course, and no submissions were made at trial about the appropriateness, or form, of any such direction.
Accordingly, the judge gave a bad character direction in conventional terms as follows:
[T]he accused man has introduced evidence himself of being in gaol, using ice, that sort of thing. You might regard that as evidence that he is a person of bad character. If you accept that it is of any — and he introduced himself. If you accept that he is a person of bad character, you can use that fact when assessing the credibility of the evidence he gave in court because a person of bad character is generally thought to be less trustworthy than other people. You may be less willing to accept the evidence and you would be if he was not a person of bad character. Right? That is just common sense.
However, you must not reason that because he is a person of bad character he is more likely to have committed the offence charged. That kind of reasoning is prohibited. Your decision must be based only on the evidence given in the trial, not on any assumptions about the kinds of people who commit crimes. All right? Did you follow that? He had volunteered — that is his decision. But having that background of that bad character of itself does not mean he committed the crime. What it may do — and it is a matter for you — is temper your views as to what credibility you give to his version of events. But that is a matter for you, not me, all right? Just explaining that to you.
It is wrong to think that — because even if we say — say you found him guilty of Charge 2, be wrong to think, ‘Well, if he was the sort of bloke that would have done Charge 1, he was the sort of bloke would have done Charge 3.’ That sort of reasoning is not on.
The applicant now contends that the bad character direction should not have been given. According to the submission, there is no rational basis to conclude that because an accused person has been gaoled, he or she is necessarily less trustworthy. The applicant also submitted that concluding that a person was less honest, because he or she has taken drugs, was ‘speculative at best’. The applicant contended that the giving of ‘such a destructive direction, particularly in the context of a trial largely concerned with credibility, was not justified by the evidence and unfairly undermined [his] credibility’.
Proposed ground 3 is without substance. First, when the judge foreshadowed the giving of a bad character direction, the applicant’s trial counsel raised no objection. Secondly, after the bad character direction was given, the judge called for exceptions. No exception was taken by the applicant’s trial counsel — either to the giving of the direction, or to its form.
The applicant submitted that, without knowing the reason why he had been gaoled, it was not open to conclude that he was a person of bad character. The reason or reasons why the applicant had been gaoled were not explored at trial. It may be that this was the result of a sound forensic decision by the applicant’s trial counsel — given what it might be expected he would have known about the applicant’s antecedents. But the fact that nothing was said about the reasons for his incarceration means that this circumstance is unlikely to have affected the jury’s view of the applicant’s character, given that they had the opportunity to observe him at close quarters while he was giving his evidence in chief and under cross-examination.
Importantly, any risk of impermissible reasoning was effectively eliminated by the express warning, included by his Honour as part of the conventional bad character direction, that if the jury considered that the applicant was of bad character, that did not of itself mean that he had committed the crimes with which he was charged; and that it would be wrong to reason that, as a result of any bad character, the applicant was the sort of person who would have committed one or some of the offences charged.
While the bad character direction was not requested by either the prosecutor or defence counsel,[10] it is clear from what the judge said that he considered that there were ‘substantial and compelling reasons’[11] for giving the direction. Before giving the direction, and in compliance with s 16(2)(a) of the Jury Directions Act 2015, the judge informed the prosecutor and defence counsel of his intention to give the direction. While he did not expressly invite submissions (as required by s 16(2)(b) of the Act) there was nothing to prevent defence counsel from objecting to the giving of the direction or seeking to make submissions about the form of the direction.
[10]See s 12 of the Jury Directions Act 2015.
[11]See s 16 of the Jury Directions Act2015.
For these reasons, and in the circumstances of the case as conducted at trial, the giving of the bad character direction did not involve any miscarriage of justice — let alone one that might be described as a substantial miscarriage of justice.
Proposed ground 4: the judge’s criticisms of counsel
During the course of his final address, the applicant’s trial counsel sought to rely upon, and purported to read from, material which was not in evidence. The judge stopped him. There was an exchange between the judge and counsel, in front of the jury. During the course of this exchange, the judge read out relevant parts of the evidence that had been given. At the conclusion of the exchange, defence counsel resumed and completed his address.
Later, in the course of his charge, the judge referred to what had happened during defence counsel’s address, telling the jury not to act upon material which was not in evidence. In the charge, the judge was also critical of an argument put by defence counsel, which the judge said should have been put to the DNA expert (Ms Heffernan) if the applicant wished to rely upon it.
Under proposed ground 4, the applicant contends that the judge was critical of him, in front of the jury, during his final address and the judge’s charge; and that these criticisms ‘seriously undermined the credibility and competency of counsel in the eyes of the jury’, and ‘created a real risk that the jury formed the impression that the judge thought the defence case to be without merit’. In support of his contention that a substantial miscarriage of justice was thereby occasioned, the applicant relied upon this Court’s decision in Piccolotto v The Queen,[12] and in particular the following:
If the trial judge frequently intervenes by correcting and rebuking defence counsel, even where the interference is justified and the mode of intervention is restrained, the risks may arise that the jury will infer that the judge has formed an unfavourable view of the merits of the defence case or, at least, of counsel whose conduct is in issue. A judge’s comments must not convey the impression, whether by intervention or otherwise, that the defence is ‘hollow.’ Further, and quite distinct from the risk that the jury might conclude that the judge did not view the defence case with favour, trenchant criticism of counsel carries with it the danger that the jury, acting upon the impression created by the judge, may have concluded that counsel’s conduct reflected a lack of judgment, or incompetency, so that valid arguments or points taken by counsel would then not receive the consideration due to them. For such reasons any sustained reproof or detailed criticism should be advanced as far as possible in the absence of the jury.[13]
[12][2015] VSCA 143 (‘Piccolotto’).
[13]Ibid [43] (Redlich, Santamaria and Beach JJA) (citations omitted).
The judge’s interventions and directions
The judge interrupted defence counsel’s address after defence counsel, who was purporting to refer to evidence given in the trial, referred to material not in evidence. Defence counsel began to refer to what he said was the evidence of Dr Baseve. The judge interrupted, asking when this evidence was given. Defence counsel responded that he thought the evidence had been given ‘through the informant’. The matter was debated between the judge and defence counsel. As the debate revealed, defence counsel was wrong.
In this Court, we were invited by the applicant’s counsel to watch the video of the exchange between the judge and defence counsel. It was submitted that in order to properly consider proposed ground 4 it was necessary both to read the relevant part of the transcript and watch the video of that part of the trial. Accordingly, we obtained and watched both the relevant part of defence counsel’s address and those parts of the charge which the applicant seeks to impugn.
For almost all of the exchange between the judge and defence counsel, the judge spoke calmly to defence counsel. On one occasion the judge became more animated, with a slight rise in the pitch and volume of his Honour’s voice. This occurred during the following exchange:
HIS HONOUR: Yes, yes, no, no, no, this is not on.
DEFENCE COUNSEL: The point I’m making, your Honour, is that ---
HIS HONOUR: No, no. This isn’t on. Do you understand what I’m saying?
DEFENCE COUNSEL: Your Honour ---
HIS HONOUR: You have stood there for 10 minutes addressing a jury on material that isn’t even in the trial. The evidence from the informant is, just so the jury understand right now what the evidence is on this topic. You sit down for a moment, please.
Defence counsel then sat down. The pitch and volume of the judge’s voice returned to normal, and his Honour read out the relevant evidence which had been given at trial, referring to that evidence as the ‘sum total of the evidence’.
That appeared to be the end of the exchange, but then defence counsel continued it by asking the judge if he was able to put to the jury what the complainant said at the special hearing (that is, what she said in cross-examination). Unsurprisingly, the judge responded, ‘I’m not saying you can’t’. This was followed by a further exchange between the judge and defence counsel about particular details which were not in evidence. After this discussion, defence counsel resumed and completed his final address. For completeness, we should note that this further exchange in front of the jury was commenced by defence counsel’s question and that at no stage did defence counsel seek to raise the matter he raised in the absence of the jury.
Early in the judge’s charge, his Honour said that there were ‘a couple of things I want to deal with before we get started’. The ‘couple of things’ were what had occurred during the course of defence counsel’s address and an argument that had been put by defence counsel in final address that, if the complainant’s evidence about the details of the assault upon her was true, then there should have been semen ‘everywhere’ on DNA testing. The judge addressed both matters by saying:
One of the roles of a judge is to endeavour to ensure that a trial is fair and fair means fair to the complainant and fair to the accused man. It is not a perfect world and sometimes that does not happen but we do our best to achieve it. What occurred before the break in terms of that medical evidence is of concern to me, as you would have gathered I suspect.
That was being used to endeavour to show that she was not telling the truth or there was something wrong. The logic from the Crown's point of view and of course that evidence was raised in the cross-examination on the special hearing, not during the VARE because the VARE had taken place before 23 March. So this has come in later, which raised in cross-examination by the defence at the special hearing. But that being so, if she says ‘I haven‘t had sex with anybody and I had a miscarriage, ‘ that means that the only person she has had sex with was the accused and therefore there must have been penetration because she was pregnant. That is from the Crown's point of view.
The defence would were arguing that look, she says she tested positive, there was a test that says was negative but when you analyse it, that is what I am upset about, she says she was tested by a GP, not a nurse. The whole thing is confusing and it is such a piece of evidence that what I am directing you, and I have discussed this just very briefly with counsel, it has reached a point where I am saying to you from either point of view, either as an attack on her. She may well have tested positive, we just do not know about it. It was never put to her because this did not happen until after. The information was not found out. She has never been able to say I saw Dr So-and-So and it was him who actually told me that. The safest bet here by a mile and I am directing you to this, this is a matter of law, leave the miscarriage and the pregnancy out of it. Do not — it is just a situation from a judge‘s point of view, it is unsafe. That is what I am saying to you. None of us really know what that is about. It might be perfectly true and will therefore prove he was the father and therefore there was penetration. It might be perfectly untrue in which case it might go to her credibility but you will never know.
So in those circumstances, I am directing you as a matter of law all that stuff about miscarriages, do not use that as evidence against the accused and do not use it as evidence attacking her credibility. To do it either way would be unfair. All right, do you follow that? And it can be an attractive sideshow if you like, but the way it has come about in this trial is not on and I do not think it is fair to either her or the man in the dock as to what has occurred. So you can put that one aside. What I will need to do tomorrow is summarise the actual evidence of it a little bit just to make sure it is on transcript, what I am saying to you, I think you understand what I am saying, just out the window, all right.
The only thing I want to deal with at this stage also, I will be dealing with this again tomorrow, is the assertion from the Bar table, we would expect there to be semen, it should be everywhere. Well that proposition was never put to the expert. Now in that scenario, that is what experts are for. I will be going through that again. Be alert to that. I will be going through her evidence tomorrow as to why that might not be the case, the propositions were not put to her. I will be going through the evidence about the shower. There is evidence that she said she was in the shower. We will come to that.
So put those matters aside for the moment until I have taken you through the evidence and you have had the opportunity to go through the evidence yourselves, if you want to. But those two propositions in this trial are not really on. There are arguments, of course, if there is no sperm found, that is an argument, of course it is, but it is not the end of it by some distance. All right, so that is a preliminary, trying to level the playing field, if I could put that way, so you know which way the wind blows in that sense.
As he said he would, the judge returned to the applicant’s ‘we would expect there to be semen, it should be everywhere’ argument the next day, when he came to summarise the evidence of Ms Heffernan. The judge referred in some detail to Ms Heffernan’s evidence about the finding of semen, and the circumstances in which no semen might be found during the course of DNA testing. As to the absence of semen or sperm in particular swabs, the judge said:
Now that is obviously something that you can take into account in your deliberations but I have given the evidence about ejaculation, and I have simply, as I have indicated talking to counsel, to say that we would expect to find it everywhere (sic).
Defence counsel are allowed a certain poetic licence but there is a whole raft of factors here, and that was never asked of the expert: ‘In this scenario would you expect to find it everywhere or a lot of it?’ So that is why experts are called, because they can give opinions on those things. All right, but the fact of the matter is that there was no sperm found and that I have given you exactly the state of the evidence in so far as semen is concerned.
Proposed ground 4: analysis
In this Court, counsel for the applicant (who did not appear at the trial) accepted that trial counsel erred in referring to matters not in evidence; and also conceded that there was a gap in the evidence in relation to the ‘you would expect semen everywhere’ argument. In respect of the conceded ‘gap in the evidence’,[14] the applicant submitted that this was at least as much (if not more) the fault of the prosecutor, than it was of defence counsel.
[14]See [32] of the applicant’s written case in this Court.
Having watched for ourselves a video recording of defence counsel’s address to the jury, and the relevant parts of the judge’s charge, we are satisfied that there is nothing in proposed ground 4. In difficult circumstances, the judge was courteous and polite in his exchanges with defence counsel during final address. While he showed frustration and impatience at a couple of points, this was entirely understandable given what had occurred. For counsel to refer in final address to matters not in evidence, or to matters not explored in cross-examination, is inevitably disruptive and difficult for a trial judge seeking to ensure the fairness of the trial.
More importantly, there was nothing in what his Honour said or did which denigrated defence counsel, or undermined the defence, or suggested that the defence case was without merit. No doubt the jury would have understood the judge was being critical of defence counsel for attempting to mount an argument in his client’s favour on material not in evidence. But the criticism was quite specific and the judge did not make, nor did his words convey, any adverse reflection on the credibility or competency of counsel.
To the extent the applicant submitted that the judge erred in having this exchange with defence counsel in the presence of the jury, we reject that submission. As a matter of general practice, it is obviously preferable for any necessary criticism of counsel to be done in the absence of the jury. In the present case, however, there was nothing inappropriate about the exchange between the judge and defence counsel occurring in the presence of the jury. To the contrary, sending the jury out, having the exchange in the absence of the jury, and then explaining to the jury that parts of what they had been told by defence counsel were not in evidence (including telling them what was in evidence) would likely have created its own difficulties. In the circumstances, the exchange between the judge and defence counsel was the most efficient way of dealing with the problem created by defence counsel’s reference to material not in evidence.
For completeness, we note that no application was made by defence counsel for the jury to be sent out while the matters raised by the judge were sorted out between the judge and counsel; nor did defence counsel seek a discharge of the jury at any time. As was observed in Piccolotto, even in circumstances where a trial judge deals unfairly or harshly with counsel in the jury’s presence (which we interpolate was not what occurred in the present case) forensic decisions are sometimes made not to seek a discharge of the jury because the judge’s manner may be viewed as likely to attract the jury’s sympathy and so inure to the benefit of the party they represent.[15]
[15]Piccolotto [2015] VSCA 143, [52].
In relation to the judge’s charge, contrary to the applicant’s submission, we see no basis for any assertion that anything said by his Honour undermined the credibility or competency of defence counsel, or gave the impression that the judge thought that the defence case was without merit. The judge’s directions were both balanced and measured.
The judge commenced his direction about what had occurred during defence counsel’s address by noting that his role was to endeavour to ensure that the trial was fair, both to the complainant and the accused man. He then noted that, ‘it is not a perfect world and sometimes that does not happen but we do our best to achieve it’. In the course of giving this direction, the judge directed the jury not to use particular evidence to which he referred[16] against the applicant. He also said that he thought that what had occurred was not fair to either the complainant or the applicant. The whole of the direction was an attempt by the judge, in his words, ‘to level the playing field’. With respect, the directions given were entirely appropriate.
[16]For present purposes, it is not necessary for us to identify this evidence in these reasons.
In relation to defence counsel’s ‘there should be semen everywhere’ argument, the judge did little more than note that there were relevant questions which should have been put to Ms Heffernan before that argument could be put by the applicant. Nothing in what the judge said was expressly critical of defence counsel. More particularly, nothing was said which undermined the credibility or competency of defence counsel in a way which was productive of any miscarriage of justice. Equally, nothing was said by the judge which could have conveyed the impression that he thought the defence case was without merit.
Finally, we note that no exception was taken by defence counsel to any part of the charge now sought to be impugned and, as we have already said, no application was made to discharge the jury. There are two possible explanations for trial counsel’s silence: either he did not think that anything untoward had occurred, or else he made a forensic decision of the kind referred to in Piccolotto.[17] In the circumstances, proposed ground 4 must be rejected.
[17][2015] VSCA 143, [52].
The applicant’s explanation for not filing a notice of application for leave to appeal within time
Section 275(1) of the Criminal Procedure Act requires an application for leave to appeal against conviction to be commenced by filing a notice of application for leave to appeal within 28 days after the day on which the offender was sentenced. In the case of the applicant, the last day for filing such a notice was 10 April 2019.
The applicant’s application for an extension of time is supported by an affidavit sworn by his solicitor. In summary, the affidavit:
·states that the applicant instructed his solicitor that he wished to appeal, shortly after he was found guilty;
·discloses that trial counsel was ‘work[ing] towards filing an appeal’ throughout 2019;
·states that, ‘by 2020’, the applicant’s solicitor had ‘grown increasingly concerned at the slow progress of [the] matter’, and sought advice from other counsel;
·states that the applicant’s appeal counsel became involved ‘in or around April 2020’ and, after requesting additional material, ‘agreed to start work on the appeal in June 2020’; and
·otherwise details what might be described as the leisurely approach taken by the applicant’s legal representatives until an application was ultimately filed in this Court in December 2020.
The solicitor’s affidavit concludes with the emphatic statement that the applicant ‘is in no way responsible for the failure to file the application for leave to appeal against conviction within time’.
The explanation for the delay in this case is entirely unsatisfactory. Such explanation as is offered appears to proceed on the assumption that, as long as the applicant was in no way responsible for any delay, his legal practitioners may take as long as they like to prepare an appeal, without any regard for the statutory time limit. Such an approach is to be deprecated in the strongest terms.[18]
[18]See Bolton v The Queen [2021] VSCA 117 (Niall JA); Bolton v The Queen [2021] VSCA 237 (Kyrou and Kennedy JJA).
The material filed in this Court on behalf of the applicant discloses almost no basis upon which this Court could grant the applicant the extension of time he seeks.
Conclusion
For the reasons given above, it is not in the interests of justice to grant the applicant an extension of time within which to file his notice of application for leave to appeal against conviction. The proposed grounds of appeal are not reasonably arguable, and any extension would thus be futile. Accordingly, the application for an extension of time within which to seek leave to appeal will be refused.
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