Naidu v The Queen
[2011] VSCA 14
•2 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0816
| KAMLESHWAR NAIDU |
| v |
| THE QUEEN |
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| JUDGES | MAXWELL P, WEINBERG JA and ROSS AJA |
| WHERE HELD | HORSHAM |
| DATE OF HEARING | 12 October 2010 |
| DATE OF JUDGMENT | 2 February 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 14 |
| JUDGMENT APPEALED FROM | R v Kamleshwar Naidu (Unreported, County Court of Victoria, Judge Wilmoth, 24 August 2009 (date of verdict), 14 September 2009 (date of sentence)) |
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CRIMINAL LAW – Appeal – Conviction – Rape of fiancée – Defendant separately charged with murder of former wife – Rape trial fixed for hearing before murder committal – Rape victim proposed to be called as Crown witness in murder committal – Whether rape victim’s evidence of domestic violence relevant to murder allegation – Whether defendant inhibited in defending rape allegation by concern not to prejudice murder defence – Applications to adjourn rape trial refused – Defendant chose not to give evidence at rape trial – Decision materially affected by perceived risk of prejudice to murder defence – Confirmatory affidavit from defence counsel at rape trial – Miscarriage of justice – Defendant denied fair trial – Convictions quashed – Retrial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce and Mr L C Carter | Doogue & O’Brien |
For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
After a trial before a County Court jury, the applicant was convicted of one count of rape and one count of indecent assault. He was acquitted of a second count of rape.
The applicant now seeks leave to appeal against his conviction. For reasons which follow, I would grant that leave and allow the appeal.
Factual background
The complainant (MS) grew up in India. After a failed marriage, she registered with an internet website set up to introduce persons looking for marriage partners. Via this website, MS and the applicant made contact and commenced communicating by telephone. In September 2006, the applicant proposed marriage to MS. In early 2007, she accepted his marriage proposal and agreed to come to Australia to be married.
MS arrived in Australia in August 2007 and moved into the applicant’s house. She understood that they were to be wed almost immediately but the applicant postponed the date. On the assumption that the marriage would take place very soon, MS began a consensual sexual relationship with the applicant. Her evidence was that, shortly after she moved in with him, the applicant began to abuse her both physically and emotionally. In October 2007, MS became pregnant to the applicant. It was an ectopic pregnancy and she miscarried. She was hospitalised with these complications, as a result of which one of her fallopian tubes was removed.
About 10 days after this operation, MS had come home from hospital. The applicant had been drinking and, according to her evidence, he assaulted her by grabbing her wrists and arms and bending her fingers back. Soon afterwards, she went to lie down in the bedroom. Subsequently, the applicant entered the bedroom. MS was lying on the bed but when the applicant made sexual advances to her she said she was not interested.
According to her evidence, he then undressed her, despite her physical and verbal resistance and despite her telling him that she was in pain. He had vaginal sex without her consent (count 1) and bit her nipples (count 2). These were the counts on which the applicant was convicted.
Ground 1
Ground 1 was in these terms:
The learned trial judge erred by failing to adjourn the trial of the applicant:-
(a)until the conclusion of the applicant’s committal and/or trial for murder, or
(b)alternatively, until such time as the Crown announced that it would not be calling the complainant as a witness in the murder committal and/or trial.
The rape trial was set down for hearing in August 2009. In the meantime, the applicant had been charged with murdering his second wife, by setting her alight. His relationship with MS had begun some time after that death.
It was intended that MS be called as a witness in the committal proceeding relating to the murder charge. To that end, the prosecution brief for the murder committal contained five statements taken from her. As already mentioned, the account given by MS of her relationship with the applicant included allegations that he had been physically violent to her.
As early as 24 April 2009, four months before the anticipated commencement of the rape trial, application was made for an adjournment of the trial. The application was heard by the Chief Judge. Counsel for the Crown informed his Honour that, although MS was not a witness to the murder and did not know the victim, her evidence of the applicant’s violence towards her would be led in that proceeding on a propensity basis. His Honour said he was ‘struggling … to understand why the Crown would seek to lead this evidence’. Its probative value appeared to be ‘remote, at best’. (On a later occasion, the Chief Judge said he was ‘flabbergasted’ that the Crown was persisting with its intention to call MS as a witness in the murder trial.)
On behalf of the applicant, it was submitted that the pendency of the murder committal, and the prospect that MS would be a witness in that proceeding, might inhibit the applicant in his conduct of the rape trial. In particular, it might limit the scope of matters which could be put to MS in cross-examination and might affect the applicant’s decision whether or not to give evidence in the rape trial. Counsel was unable, however, to substantiate these contentions and, as a result, the Chief Judge concluded that there was insufficient risk of prejudice to the rape trial to warrant its adjournment. The application was refused.
The application was renewed before the Chief Judge, by different counsel for the applicant, on 13 May 2009. Again, the basis of the application was that the scope of cross-examination of MS would be restricted and that the pendency of the murder committal would significantly affect the applicant’s decision whether or not to give evidence in the rape trial. His Honour was unpersuaded about the first contention but noted that the core of ‘the problem’ seemed to be what the applicant might be cross-examined about:
His risk is not in giving evidence that he didn’t rape her. His risk is in being cross-examined about matters that may ultimately affect the way in which he conducts his murder defence. The question is, what are the issues in the rape trial that might expose him to cross-examination of that kind?
Later his Honour said:
… But the giving of evidence is a risk I can see having regard to the presence of the violence charges on the presentment and the risk that a prosecutor will want to cross-examine [the applicant] about his character and his general attitude towards his partners, which would or might expose [the applicant] to the risk of having to answer questions about the pending murder committal.
In the event, however, his Honour concluded that the risk of these matters arising in the rape trial was a matter which could be managed by the prosecutor and, ultimately, by the trial judge.
The adjournment application was renewed a third time, on 23 June 2009. On this occasion the applicant was represented by counsel who subsequently appeared for him at the rape trial. The submission for the applicant centred on the risk of his being cross-examined on the allegations of violence made by MS, which were intended to be put into evidence in the murder trial. It was argued that, if the applicant were to give evidence that he had never been violent to MS, he was likely to be cross-examined about alleged violence in relation to others.
The Chief Judge accepted that, if the prosecutor in the rape trial intended to cross-examine the applicant about his general violent behaviour, including the alleged setting fire to his former wife, ‘that would be a pretty powerful persuasive reason to stay this trial’. No indication had, however, been given that this would occur and his Honour remained of the view that the issues being raised were capable of being managed by the judge at the rape trial.
Application for adjournment was again made – for the fourth and final time – before the trial judge. There had been no change in the position regarding the prosecution brief for the murder committal. Defence counsel pointed out that the Crown had not been required to state the basis upon which the evidence of MS would be relied on in the murder proceeding. In these circumstances, he contended, it was impossible for the applicant to know what use was intended – or would be permitted – to be made of that evidence.
Counsel submitted that the applicant faced:
an impossible position in attempting to run this [rape] case. He, whilst he has given me instructions about the matters, his overall instructions are that he doesn’t want me to run this case in a way that could potentially prejudice him in his murder trial.
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when he instructs me as to whether he will go into the witness box or not, he has to bear in mind the real likelihood that going to the witness box exposes him to cross-examination on matters that can then be relevant to his forthcoming murder committal.
… it’s virtually unavoidable that matters that are potentially relevant will come out if my client were to give evidence or indeed … if I put matters on his behalf from the Bar table in the course of cross-examining the complainant.
The submission continued:
… at this stage it’s impossible to predict all of the evidence that might fall, all of the cross-examination that might be put or whether the accused himself might go into the witness box although, as I say, he does that really at his peril in this type of case.
… the accused has to make decisions about the running of his trial not knowing where it might lead and what ultimate consequence it might have and in that respect it … deprives him of a fair trial at this stage.
For his part, the trial prosecutor acknowledged that, if the applicant did give evidence that he was a ‘non-violent and loving husband’, the Crown would regard itself as entitled to go to some of the material ‘establishing violent or drunken behaviour and violence on previous partners’. The judge enquired whether the prosecutor could specify the matters of that kind on which he would cross-examine the applicant but the prosecutor was unable to do so. Defence counsel responded that the specification of topics for cross-examination would not, in any event, have alleviated the applicant’s difficulty:
because my client does not know how [the murder case] is exactly being put, it would still leave my client in the position of not knowing what effect any evidence that he gives might have. That is, he wouldn’t be able to work out whether he should … expose himself to that cross-examination or not because he doesn’t know exactly how it might potentially be used against him.
The judge ruled against the application. In her reasons she said:
… I have taken into account the need for a sex trial to be heard with priority and that in adjourning this trial until after any murder trial that might take place is heard, the result would be a delay of perhaps 12 to 18 months.
The Crown is ready to prosecute the trial and it should proceed unless there are compelling reasons as to the risk of the [applicant] not having a fair trial if it proceeds, and indeed in contemplating the murder trial if that takes place.
Clearly the Crown seeks to run this trial in such a way as not to impinge on the murder committal and not to jeopardise the [applicant’s] position by giving evidence in this trial that could compromise him for the murder trial.
It cannot be clarified at this stage how that can be confidently avoided. What the Chief Judge described as uncertain when the matter was ventilated before him is still unclear.
The risk of the trial being aborted should the evidence reach the danger zone that counsel have referred me to, is a risk that has to be contemplated. It is not an unusual risk and given the importance of not delaying the trial, the trial should proceed.
Although the ground of appeal challenges the judge’s exercise of her discretion to refuse the adjournment, the question to be addressed in such circumstances is not whether the discretion miscarried but whether the decision arrived at was productive of a miscarriage of justice in the trial.[1] It is appropriate, nevertheless, to say something about the resolution of the issues as they confronted the trial judge.
[1]Cf R v Vjestica (2008) 182 A Crim R 350, 353‑354 [6]–[7]; R v Ferguson (2009) 24 VR 531, 581 [255].
Her Honour was in a difficult position. This was the fourth occasion on which the adjournment application had been made. It had been rejected three times. The basis of the application was unchanged. There was, moreover, a continuing lack of information before the Court as to the use proposed to be made in the murder proceeding of the statements of evidence taken from MS. In the circumstances, the defence submissions about the risks of prejudice were, inevitably, couched in general and somewhat speculative terms.
In my respectful opinion, however, the adjournment application ought to have been granted. For the reasons spelt out by defence counsel, there was a serious risk that the pendency of the murder committal would unfairly inhibit the applicant in the exercise of his rights as defendant in the rape trial. Moreover, this was not an unfairness which it lay within the power of the trial judge to remove, since the critical decision for the applicant would be whether or not to give evidence. Only if he did so would the judge be able to exercise control over the scope and nature of the prosecutor’s cross-examination. The inescapable difficulty for the applicant was that, in making that decision, he had to consider the prospect – which the prosecutor himself had acknowledged – that he would be cross-examined about alleged violent behaviour in relation to other women and that the answers he gave on that topic would be used against him in the murder trial.
As defence counsel pointed out, the applicant simply did not know – because it had not yet been articulated – what use would be made in the murder proceeding of the evidence of MS. Notwithstanding the Chief Judge’s strongly-expressed scepticism about the relevance to that charge of anything MS might say, the position of the Crown in relation to the murder proceeding had not changed in the four months since the defence had first raised these concerns. In the circumstances, those representing the applicant were entitled to assume that the prosecution in the murder proceeding was determined to use the MS evidence in that proceeding. Given the seriousness of the murder charge, defence counsel in the rape trial was entitled – indeed, bound – to proceed with all reasonable caution.
There is, I think, an instructive parallel between the position of the present applicant and the position of a defendant in a civil proceeding who is, or is likely to become, a defendant to criminal charges relating to the same subject-matter. As appears from the authorities reviewed by Robson J in Australian Securities and Investments Commission v Geary,[2] the Court will be astute to protect such a defendant against prejudice in the criminal proceeding, by the grant of a stay of the civil proceeding. The justification for such an order is that the defendant should not be put in a position where he/she is obliged to disclose in the civil proceeding matters which may affect his/her defence in the criminal proceeding. Similar considerations applied here.
[2](2008) 21 VR 252.
In the event, the applicant did not give evidence in the rape trial. As will appear, he acted on his counsel’s advice in making that decision.
Counsel’s affidavit
The written submission for the applicant contended that his decision not to give evidence:
was because the murder committal and/or trial was hanging over his head and because of the concessions made by the trial prosecutor as to the likelihood of the applicant being cross-examined. There was a risk that cross-examination of the applicant in the rape trial would compromise or affect the conduct of the pending murder trial, in which relationship evidence was potentially important.
It was pointed out by the Court, however, that this conclusion could only be reached as a matter of inference, since defence counsel had given no explanation to the judge of the applicant’s decision not give evidence.
Counsel for the applicant then informed this Court that he had spoken to counsel who had appeared for the applicant at the trial. According to defence counsel, the concerns ventilated on the adjournment application – and the refusal of the application – had materially affected the applicant’s decision not to give evidence. The Court indicated that, if this were to be relied on as a matter of fact, there would need to be an affidavit from defence counsel.
An affidavit was subsequently prepared and filed. (The Crown did not require the deponent to be made available for cross-examination.) The relevant part of the affidavit was in these terms:
The reason that I applied to adjourn the rape trial until after the hearing of the murder trial was that I feared that evidence that the applicant might give in the rape trial could prejudice him in the murder trial by dint of the commonality referred to above. Such evidence might, for instance, form a basis for cross-examination of the applicant by the Crown in the later murder trial that focussed on inconsistencies between evidence the applicant gave in the rape trial and evidence he gave at the murder trial. I was concerned that were the applicant to give evidence in the rape trial he might compromise the exercise of his right to silence in the murder.
Further, I feared also that if the applicant gave evidence in the rape trial and he, against advice, placed his character in issue he would leave himself open to cross-examination on allegations of domestic violence arising out of the murder brief concerning other women (in particular, a deceased woman in Fiji and the deceased the subject of the murder charge) thereby, again, potentially setting up inconsistencies with evidence that he might later give at the murder trial.
Prior to Judge Wilmoth’s ruling that the rape trial not be adjourned until after the murder trial, I had not made a firm decision to call [the applicant] to give evidence. If the future murder trial was not in prospect, I doubt whether I would have made a final decision as to this matter until after the close of the Crown case. It seemed to me, however, that all things being equal, [the applicant] would have been well advised to give evidence in his rape trial because assuming that the complainant gave the evidence that it was expected that she would give, [the applicant] would almost certainly have been convicted unless he proffered a contrary version of events. I gave [the applicant] this preliminary advice.
Once, however, Judge Wilmoth ruled against the adjournment application there was no prospect that the applicant could give evidence in my view; it was simply too dangerous. Although given my advice the applicant is unlikely to have placed his character in issue in the witness box in the rape trial, there still remained the fact that the prosecution said that they would rely on the complainant’s evidence of domestic violence in the murder trial that was also to be led in the rape trial.
It seemed to me that should the applicant give evidence in the rape trial he would effectively having been ‘going on record’ [sic] in respect of this matter in a manner that might come back to haunt him in the murder and with consequences that were far more serious than presented themselves at the rape trial. Had the rape trial been adjourned until after the murder, the potential consequences were far less serious. In that instance there was a risk of inconsistencies because of the same commonality of evidence, but the motivation not to give evidence at a later rape trial was nowhere near as strong in light of the significantly lesser potential sentence that was faced.
I had instructions not to compromise the murder trial. The adjournment application was refused. I then gave [the applicant] advice that evidence that he gave in the rape trial might subsequently be used against him in the murder trial. He then instructed me that he did not wish to give evidence in the rape trial, even if the complainant was unshaken in the evidence that it was expected that she would give.
This uncontested evidence establishes the following matters:
·defence counsel had real concerns that the applicant might be prejudiced in the murder trial if he were to give evidence in the rape trial;
·but for those concerns, it was likely that the applicant would have given evidence in his rape trial, and counsel had advised him to do so; and
·the refusal of the adjournment application foreclosed the possibility of the applicant giving evidence in the rape trial.
It follows, in my view, that the applicant was denied a fair trial. By reason of an extraneous matter – the pending murder proceeding – he was denied the free exercise of his right to give evidence (or to decline to do so) in the rape trial. This
was a miscarriage of justice of the most fundamental kind. As Kaye J said in McColl v Lehmann,[3] in a passage relied on by the applicant:
it is essential to the fair trial of an action – whether civil or criminal – that all parties are able to present their case as fully as necessary and within the limits of the law.[4]
[3][1987] VR 503, 506.
[4]See also Onus v Sealey (2004) 149 A Crim R 227, 237 [32] (Kaye J).
Accordingly, I would uphold this ground and quash the convictions. I would direct that there be a re-trial, to be held after the murder proceeding is concluded.
WEINBERG JA
ROSS AJA:
We have had the considerable advantage of reading in draft the reasons for judgment prepared by Maxwell P. We agree, for the reasons given by his Honour, that this appeal should be allowed, and that there should be a re-trial.
We should say that we have come to that conclusion only with some reluctance and after anxious consideration. It must be a wholly exceptional case in which a conviction is set aside where an accused, acting upon the advice of counsel, elects not to give evidence in his own defence but then submits on appeal that by acting on that advice, he was in some way denied a fair trial.
It is well established that an accused is bound by the way their counsel has conducted the trial. That is so irrespective of whether that counsel acted in accordance with the wishes of the accused,[5] and even if counsel’s advice involved an error of judgment, or was negligent.[6]
[5]R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).
[6]Ibid.
However, a case may arise where a decision taken by counsel during the running of a trial will be recognised as having brought about a miscarriage of justice. In such a case, this Court will intervene. The miscarriage may be as a result of
‘flagrant incompetence of counsel’,[7] but may also arise from ‘some other cause’.[8]
[7]Ibid.
[8]Ibid.
One difficulty presented by this appeal is that it cannot even remotely be said that counsel’s advice that the applicant should not give evidence in the trial below was ‘flagrantly incompetent’. That advice was undoubtedly very conservative, and probably unnecessarily so. In truth there was very little risk, it seems to us, of the applicant doing harm to his defence to the charge of murder by anything that he might say in evidence in answer to the charge of rape.
There was almost no chance that in giving evidence at his trial for rape, the applicant would make some damaging admission that could be used against him at his later trial. There was very little chance that anything that he might say could be used to impugn his credibility were he subsequently to give evidence at his trial for murder. Despite the Crown’s stated intention to call MS as a witness at the murder trial, the two cases were quite unrelated. It is difficult to see how anything MS might say regarding her relationship with the applicant, or his actions towards her, could possibly have been admitted in the trial for murder.
That makes it hard to understand why the applicant’s counsel was so insistent, both before and during the rape trial, that his client would not be in a position to give evidence while the murder trial was pending. It also makes it difficult to understand why he would feel in any way constrained in his cross-examination of MS in the rape trial.
Nonetheless, as the President has clearly outlined, the Crown did not challenge the applicant’s contention that his counsel advised him not to give evidence because of the risk this might pose for his impending murder trial. Moreover, the Crown did not challenge the applicant’s assertion that he accepted that advice and acted upon it.
All of this could have been avoided had the trial judge acceded to the application to adjourn this trial until after the completion of the murder trial. It seems to us that the trial judge did not adopt that course because of a concern that any case involving a sexual offence should be heard as expeditiously as possible.
While recognising the importance of minimising delay in cases such as the present, there is an even more fundamental principle at stake, namely the right of an accused person to a fair trial.
At common law, there was a rule of practice that counts charging other offences should not be included in an indictment for murder.[9] In England in 1964, following Connelly v DPP,[10] Lord Parker CJ issued a Practice Direction[11] to the effect that this rule of practice should no longer be considered in force. Since that time, it has been a matter for the Crown in that country to frame the indictment as it thinks appropriate, with the judge having complete discretion to direct that the accused be tried separately on any one or more counts.
[9]R v Jones [1918] 1 KB 416; R v Large (1939) 27 Cr App R 65.
[10](1964) 48 Cr App R 183 (‘Connelly’).
[11][1964] 1 WLR 1244.
There is authority which suggests that the approach taken in England since Connelly[12] is also applicable in this State.[13] However, other views have been expressed. In R v Pollitt,[14] Beach J observed:
in my own view it is highly undesirable to include any other count on a presentment that contains one or more counts of murder and that course should only be permitted in exceptional circumstances.
[12](1964) 48 Cr App R 183.
[13]R v Demirok [1976] VR 244.
[14][1991] 1 VR 299, 302 (‘Pollitt’).
Despite the more traditional approach taken in Pollitt, there are many examples in recent years of counts of murder being joined with other counts in circumstances where all counts are founded on the same facts or form or are part of a series of offences of the same or a similar character. Of course, such joinder does not necessarily mean that separate trials will not be ordered.[15]
[15]R v Demirok [1976] VR 244.
Historically, it seems to have been accepted that the trial of an accused for any lesser offences which were unrelated to the charge of murder should be put over to be tried only after the completion of the trial for that offence. The reason was obvious. A conviction for murder had only one consequence, and rendered the trial for other offences unnecessary. Even now, a lengthy term of imprisonment imposed for murder might lead the Crown to decline to proceed with a trial for a relatively minor offence where any sentence imposed would be likely to be concurrent, and of no practical significance.
In the particular circumstances of this case, the allegation of rape could not have been joined in the one presentment with the count of murder. The two offences were, as we have said, quite unrelated. The only conceivable nexus between them lay in the Crown’s somewhat dubious contention that evidence of the applicant’s propensity to engage in acts of violence towards women was in some way relevant to the charge that he had murdered his second wife.
Adjourning the trial for rape until after the completion of the trial for murder could not, in our view, have prejudiced the Crown’s case to any significant degree in relation to the rape. However, such an adjournment would have left the applicant able to fully and properly defend both charges. In those circumstances, the adjournment should have been granted.
It must be said that the present case is unusual in many respects. This Court will be extremely loathe to set aside a conviction on the basis of a trial judge’s erroneous failure to grant an adjournment. Whether or not a trial should be adjourned is essentially a matter for the exercise of judicial discretion. The decision to refuse an adjournment will not lightly be overturned on appeal. Nonetheless, as the President’s analysis shows, there have been examples in the past where the failure to grant an adjournment has been held to have led to a miscarriage of justice. We have come to the conclusion that this, too, is such a case.
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