R v Bazan - [2010] SASCFC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BAZAN
[2010] SASCFC 50
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)
5 November 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
Appellant was convicted in the District Court by jury verdict of two counts of rape - where the defendant’s state of mind as to whether the complainant was consenting was in issue at trial - where consent was in issue - where defence counsel failed to cross-examine on a critical matter that went to defendant's state of mind - where defence counsel failed to explore at trial the effect of drug use - where defence counsel failed to lead good character evidence - where defence counsel failed to explore at trail instructions given to him that defendant had had a prior sexual relationship with the complainant - whether incompetence of defence counsel at trial resulted in a risk of a miscarriage of justice.
Held: appeal allowed - retrial ordered - failure to cross-examine on critical matters was a significant deficiency in the presentation of the defence - good character evidence was important evidence which related to the credibility of the defendant - there is a real risk that a miscarriage of justice may have occurred as a result of the manner in which the defence case was presented and conducted.
Ali v The Queen (2005) 79 ALJR 662; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 162 A Crim R 301; R v Birks (1990) 19 NSWLR 677; Re Ratten [1974] VR 201; R v Miletic [1997] 1 VR 593; Strauss v Francis (1866) LR 1 QB 379; R v GDB [2000] 1 SCR 520; R v S [1998] 3 NZLR 392; Teeluck v Trinidad and Tobago [2005] 1 WLR 2421, considered.

R v BAZAN
[2010] SASCFC 50
Court of Criminal Appeal Doyle CJ, Gray and White JJ

DOYLE CJ: I would allow the appeal, set aside the convictions recorded in the District Court, and order that there be a retrial on the Information. I agree with the reasons given by Gray J, and there is nothing that I wish to add.
GRAY J.
This is an appeal against conviction.
The defendant and appellant, Pablo Edgardo Bazan, was convicted by jury verdict of two counts of rape following a trial in the District Court. A majority verdict was returned on each count.
The incident giving rise to both counts occurred on 16 March 2008 at a suburban home at Burton. The first count related to an act of sexual intercourse by an act of cunnilingus upon the complainant. The second count related to an act of vaginal sexual intercourse upon the same complainant.
On the hearing of the appeal the defendant submitted that there was a risk of a miscarriage of justice arising in the trial as a consequence of the incompetence of counsel appearing for the defendant. It was contended that as a result of counsel’s conduct, evidence critical to the defence case was not presented. It was further contended that there was a failure to cross-examine the complainant and another important Crown witness as to critical matters going to the defendant’s state of mind at relevant times.
On the hearing of the appeal affidavits were tendered without objection which established a case of incompetence on the part of defence counsel, including a failure to raise and develop a number of matters in the course of the trial. The affidavits included an affidavit from the trial defence counsel who acknowledged a misunderstanding of the law, an oversight on a matter of importance and a failure to follow through certain instructions received from the defendant. I will return to the detail of these matters later in these reasons.
It should be noted immediately that the Director of Public Prosecutions did not challenge the assertions of fact made in the affidavits about the conduct of the defendant’s counsel at trial. The Director’s position was that if this Court accepted the material, there was no opposition to this Court setting aside the conviction and ordering a re-trial on the ground that a real risk of miscarriage of justice had arisen.
On my review of the affidavit material and the evidence in the trial, and bearing in mind the position taken by the Director, I have reached the conclusion that this is a case where there is a risk that a miscarriage of justice may have occurred and that in the circumstances it is appropriate that the convictions recorded on each count be set aside and that the matter be remitted for a re-trial. Having regard to the concessions made by the Director I propose to be brief in my review of the evidence at trial.
On the evening of Saturday 15 March 2008, a number of people gathered at a restaurant and bar in Gouger Street, Adelaide. The complainant went with a female friend. She had consumed a number of alcoholic drinks before going to the Gouger Street premises. They arrived at about 10.00pm or 10.30pm. Towards the end of the evening the complainant met a man with the first name of Lallo, a man with whom she had previously had a sexual relationship. That relationship had concluded several months earlier. At one stage the complainant went outside the bar with Lallo and smoked cannabis. While at the bar the complainant met the defendant, who was known to her. It was common ground that apart from kissing by way of a greeting they had nothing to do with each other at the bar.
The complainant left the bar at about 3.00am on 16 March 2008 with Lallo and went to his home at Burton. The defendant also lived at the Burton address and he had returned home earlier that morning with other friends. When the complainant and Lallo arrived at Burton the defendant was fighting with his girlfriend inside the Burton premises, so the complainant and Lallo stayed outside smoking cannabis. Eventually they moved inside. The defendant’s girlfriend left.
On the prosecution case the defendant at this time was upset and was crying. Lallo sent the complainant to his bedroom to go to bed, while he spoke with the defendant. A short time thereafter Lallo went to his bedroom and had consensual sexual intercourse with the complainant. The complainant was tired and wanted to sleep. Lallo left the bedroom and went into the lounge room to watch soccer with the defendant. At that time the two men consumed alcohol and smoked cannabis.
According to the evidence of Lallo, after he returned from the bedroom the defendant said to him “how about it, do you reckon I could have a turn” with reference to the possibility of sexual intercourse with the complainant. According to Lallo he responded “No, you’re joking”. Lallo next recalled waking on the couch and hearing the complainant screaming. He went to the bedroom and saw the complainant on the ground by the bed making a telephone call to the police.
The complainant gave evidence that she was asleep and floating in and out of consciousness. She had become aware of an act of cunnilingus being performed on her. She thought at the time that it was Lallo and she called out “Lallo, is that you, is that you” and that a voice replied “yes”. The complainant said that she again fell asleep and then woke up. Her evidence was “I just fell asleep, like I kept falling asleep. I thought I was dreaming but I woke up again and then he was humping me”. She added “he was having sex with me and that’s when I realised it wasn’t him, it wasn’t Lallo, that’s when I pushed him with my legs”. She recognised the man as the defendant and gave the following evidence:
Q.    Did you say anything to [the defendant] when you recognised his face.
A.    I said “Why did you do that for?” and he said “Lallo let me”.
Q.    Were they the words that you used; “Why did you do that for”.
A.I don’t think I did but he kept on saying “Lallo let me, Lallo let me” and I said “No he didn’t, no he didn’t, no he didn’t” and I was trying to rush out there to find him.
A transcript of the telephone call made by the complainant to 000 was tendered in evidence. At the time of the conversation the defendant was present. In the course of the telephone conversation the complainant gave an account of what had occurred that accorded with her evidence in court. In the course of that transcript the following appeared as words spoken by the complainant:
Yeah you did, you were licking me and you were fucking me, you cunt, and I thought it was Lallo and I was screaming his name until you said you were you, you cunt, and then you got off of me.
It was the prosecution case that the defendant in an intoxicated state as a consequence of alcohol and cannabis, went to the bedroom, pretended to be Lallo, took advantage of the complainant while she slept and as she gained some consciousness raped her twice in that process.
The defendant gave evidence. He recounted having had a previous sexual relationship with the complainant. In the course of his evidence-in-chief he said he went to the bedroom and lay on the bed in which the complainant was sleeping. After about 10 or 15 minutes he tapped her on the shoulder and asked if she wanted sex. She said yes. This involved cunnilingus followed by vaginal sexual intercourse. While having sexual intercourse he thought she was calling out the name Pablo, not Lallo. His case was that he mistakenly heard what he thought was Pablo even though she might have been saying Lallo. As soon as the complainant realised that it was the defendant and not Lallo she protested and he immediately stopped vaginal sexual intercourse.
There was no dispute about the events of the evening or as to the acts of sexual intercourse. What was in issue was the defendant’s state of mind as to whether the complainant was consenting. Defence counsel at trial also put consent in issue. However, a substantial issue was whether the prosecution had proved the necessary state of mind.
In the course of cross-examination of the defendant the topic of his conversations with Lallo in the lounge room arose. The defendant gave evidence directly contrary to that given by Lallo. It was the defendant’s evidence that he did not seek Lallo’s permission to have intercourse with the complainant. This was an important matter. The defendant’s account should have been put to Lallo. Lallo should have been challenged about his assertions.
On the hearing of the appeal it was contended that there was a failure to cross-examine Lallo on this topic and that that gave rise to a miscarriage of justice. It was submitted that Lallo’s evidence of conversations in the lounge room prior to the defendant entering the bedroom were relevant to the defendant’s state of mind in two respects: whether the defendant knew that the complainant was in the bedroom; and, whether the defendant had a reckless attitude as to consent at that time. Trial defence counsel through his affidavit deposed that his failure to cross-examine on this topic in accordance with instructions was through oversight. It was submitted to this Court that in the absence of any cross-examination on the topic it was open to the prosecutor to submit to the jury that Lallo was an impressive witness. Had Lallo been cross-examined on this topic it was said that it may well have been impossible for such a submission to be made.
In this respect the Director acknowledged that the defence counsel at trial should have cross-examined on these matters. However, it was said that the defendant’s account did emerge in cross-examination and that the jury had the evidence before them. In this circumstance it was said that this matter alone would not justify a setting aside of the convictions.
In the course of the preparation for trial the defendant raised with his counsel the possibility of calling character evidence. The defendant was in a position to put his character in issue in the trial. It is evident from the material placed before the sentencing Judge that a substantial body of good character evidence was available to be led on behalf of the defendant.
Trial counsel advised the defendant that good character evidence was not relevant to the trial but would be relevant on the question of sentence if he were to be convicted. This was plainly erroneous advice and represented such a departure from competent professional conduct as to be characterised as incompetence. The defence case primarily involved the defendant’s state of mind. Whether the jury believed his evidence or accepted that it gave rise to a reasonable hypothesis consistent with innocence, were critical features of the case. On the topic of his credibility, good character evidence was pertinent and relevant and should have been led. The Director accepted that this was a case where character should have been put in issue and conceded that a risk of a miscarriage of justice may have arisen.
The third matter raised by the defendant’s counsel on appeal related to the defendant’s prior relationship with the complainant. Evidence before this Court disclosed that the defendant had instructed trial counsel that he had had a prior sexual relationship with the complainant. The defendant provided trial counsel with the names of two witnesses who he claimed could support his assertion. Defence counsel did not contact either person. On the appeal, no attempt was made to provide affidavits or witness proofs from the named persons. It is a matter of speculation as to whether either could provide any relevant evidence.
If the truth of the matter were that there had been a prior sexual relationship it would explain why the defendant might tap the complainant on the shoulder and ask if she wanted to have sex with him. Without evidence of a prior sexual relationship the members of the jury might be incredulous of the defendant’s evidence in that respect.
It was also submitted on the appeal that there was evidence before the Court of the analysis of the complainant’s blood showing the presence of amphetamine. It was contended that this issue should have been explored in the context where the complainant had given evidence that she was asleep or falling in and out of sleep during the offences.
As outlined on the appeal these matters were important matters to be considered and raised before the jury. There is no reason to think that these were matters of forensic choice.
As earlier observed, the Director submitted that the failure to cross-examine Lallo did not, of itself, give rise to any miscarriage of justice. It was the Director’s submission that the particular matters of concern for this Court were the failure to explore the effect of amphetamine use, the failure to explore and put to the complainant the circumstances of her prior relationship with the defendant and the earlier referred to failure to lead good character evidence. The Director on the appeal accepted that these matters may well have led to a miscarriage of justice. It was accepted that once trial counsel acknowledged that no forensic choice had been made, there was a proper ground on which this Court could order a re-trial.
In three recent decisions the High Court has considered whether miscarriages of justice arose as a result of counsel’s incompetence: Ali,[1] TKWJ[2] and Nudd.[3] These authorities establish that the ultimate question to be answered is whether, viewed objectively, proven conduct gave rise to a material risk of a miscarriage of justice. In each case, it was decided that no such risk had been established.
[1]    Ali v The Queen (2005) 79 ALJR 662.
[2]    TKWJ v The Queen (2002) 212 CLR 124.
[3]    Nudd v The Queen (2006) 162 A Crim R 301.
In Nudd, Gleeson CJ observed that, where the conduct of defence counsel is said to give rise to a miscarriage of justice, it is the role of the appeal court to conduct an objective inquiry, focusing on what was done or omitted to be done rather than why such conduct occurred. The Chief Justice also noted that although this was the general rule, circumstances may arise where it will be necessary to ask that latter question.[4]
[4] Nudd v The Queen (2006) 162 A Crim R 301 at [10], [17].
Gummow and Hayne JJ in their judgment outlined that the gravamen of the inquiry is whether a miscarriage of justice has occurred. Their Honours noted that alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. Citing the judgments in TKWJ,[5] it was said that the inquiry requires a consideration of:[6]
…what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.
[5] TKWJ v The Queen (2002) 212 CLR 124.
[6] Nudd v The Queen (2006) 162 A Crim R 301 at [24]-[25]; Kirby J made similar remarks at [64],[68]; this is consistent with the approach taken by Hayne, with whom McHugh J agreed in Ali v The Queen (2005) 79 ALJR 662 at [18].
There are reasons, both legal and pragmatic, which support giving latitude to counsel appearing in trials.[7] Parties are ordinarily held to the way in which their counsel has presented the case,[8] as the relationship between lawyer and client finds its foundations in the law relating to agency and apparent authority,[9] and trials could not operate effectively without according deference to the mass of decisions necessarily made by a lawyer in the course of conducting a trial.[10] The realities of the trial process influence the approach taken by appeal courts.[11]
[7]    TKWJ v The Queen (2002) 212 CLR 124 at 147 [74] (McHugh J).
[8]    R v Birks (1990) 19 NSWLR 677 at 684 (Gleeson CJ). See also Re Ratten [1974] VR 201 at 214; R v Miletic [1997] 1 VR 593 at 598.
[9]    Strauss v Francis (1866) LR 1 QB 379 at 381 (Blackburn J) cited in TKWJ v The Queen (2002) 212 CLR 124 at [74] (McHugh J).
[10] R v Birks (1990) 19 NSWLR 677 at 682-685; TKWJ v The Queen (2002) 212 CLR 124 at [8] (Gleeson CJ); Ali v The Queen (2005) 79 ALJR 662 at [7] (Gleeson CJ).
[11] See R v Hughes (2007) 99 SASR 161 at [73] (Gray J).
In Nudd, Kirby J made the following pertinent comments about the dangers of focussing the inquiry on the incompetence of the legal representation at trial rather than the ultimate question of whether a miscarriage of justice occurred:[12]
In criminal appeals, courts are alive to the dangers of retrospective wisdom and appellate hindsight applied to instantaneous professional judgments that have to be made, often in fraught circumstances.[13] Moreover, they understand the natural tendency of some who "have been properly and deservedly convicted to attribute the result to the perceived incompetence of their counsel.[14]
Considerations such as these have led appellate courts everywhere to insist that those who complain on the score of suggested incompetence in their legal representation at trial must establish the defect of the resulting verdict or otherwise show a "miscarriage of justice". It is not the function of the appellate court to attempt "to rate counsel's conduct of the case according to some scale of ineptitude".[15]
[12] Nudd v The Queen (2006) 162 A Crim R 301 at [80]-[81].
[13] R v GDB [2000] 1 SCR 520 at [27] (Major J, delivering the reasons of the court).
[14] R v S [1998] 3 NZLR 392 at 394; see also Ratten v The Queen (1974) 131 CLR 510 at 516; cf TKWJ v The Queen (2002) 212 CLR 124 at [78] (McHugh J).
[15] Teeluck v Trinidad and Tobago [2005] 1 WLR 2421 at [39] (PC).

Applying the above principles in the present case allows the clear conclusion that there should be an order for a re-trial. In the present proceeding, good character evidence was important evidence relating to the credibility of the defendant. Good character evidence was available. The defendant had no relevant antecedents. Further, the failure to cross-examine the complainant and Lallo on critical matters was a significant deficiency in the presentation of the defence. Taken together, and viewed objectively, these matters, in my view, gave rise to a risk of a miscarriage of justice.
The incompetence of trial defence counsel has been established, in particular by defence counsel’s own admissions. That incompetence is confirmed by a review of the trial transcript. There were other unrelated matters which would suggest that trial defence counsel was not properly equipped to be defending the defendant before a jury. One might go so far as to say that trial defence counsel should not have been defending any matter before a jury.
It is to be recalled that the incompetence of counsel alone does not necessarily reveal what is said to be the miscarriage of justice. It is also necessary to consider what did or did not occur at the trial, whether there was a material irregularity in the trial and whether there was a significant possibility that the acts or omissions of which complaint is made, affected the outcome of the trial. [16]
[16] Nudd v The Queen (2006) 162 A Crim R 301 at [24]-[25] (Gummow & Hayne JJ).
In the circumstances of the present proceeding, I have reached the conclusion that the defendant was deprived of a fair trial by reason of the conduct of the defence case. The matters of complaint may be characterised as material irregularities in the trial and those matters may have affected the outcome of the trial. There is a real risk that the defendant was deprived by his counsel’s conduct of a chance of an acquittal. There is a real risk that a miscarriage of justice may have occurred as a result of the manner in which the defence case was presented and conducted.
Conclusion
I would allow the appeal, set aside the convictions and order a re-trial.
WHITE J. I agree with the orders proposed by Gray J. I do not wish to add to his reasons.