Ramlagun v the Queen
[2015] VSCA 337
•11 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0125
| AMAN RAMLAGUN |
| v |
| THE QUEEN |
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| JUDGES: | WHELAN, SANTAMARIA and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 November 2015 |
| DATE OF JUDGMENT: | 11 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 337 |
| JUDGMENT APPEALED FROM: | DPP v Ramlagun [2014] VCC 270 |
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CRIMINAL LAW – Election for leave to appeal against conviction – Leave granted on proposed ground as to direction on burden of proof and amended proposed ground as to unbalanced and unfair comments on the evidence.
CRIMINAL LAW – Application to amend proposed notice of appeal to add proposed ground of appeal relating to admission of fresh/new evidence on appeal – Expert report – Forensic decision of applicant’s former solicitor not to request report for trial – R v TKWJ (2007) 212 CLR 124 applied – Application to amend proposed notice of appeal granted – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In Person | |
| For the Respondent | Ms D I Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA:
On 18 February 2014 the applicant was found guilty by a County Court jury of one charge of rape and two charges of indecent assault. On 11 March 2014 the trial judge sentenced the applicant to a total effective sentence of three years six months’ imprisonment and fixed a non-parole period of two years four months. On 19 June 2014 the applicant applied for leave to appeal his conviction on the following two grounds:
1.The learned trial judge erred in charging the jury in terms which suggested there was an evidentiary burden on the accused.
2.The learned trial judge erred in commenting on the evidence of Constable Albano in a way which would have conveyed to the jury that he was giving direction of law.
On 5 November 2014 Priest JA refused leave to appeal on those two grounds.[1]
[1]Ramlagun v The Queen (Unreported, Supreme Court of Victoria, Priest JA, 5 November 2014) (‘Leave Reasons’).
On 7 November 2014 the applicant elected to renew his application for leave to appeal his convictions and requested an oral hearing.[2]
[2]On the same day the applicant’s solicitor, Victoria Legal Aid (‘VLA’), sought leave to cease to act, which was granted by the Registrar of Criminal Appeals on 11 November 2014. The election was first listed for oral hearing on 27 February 2015. On 9 January 2015 the applicant’s partner, Ms Sue Sandonato, provided the Court with a report by Mr Mark Whitehouse dated 23 December 2014 which had not been adduced at trial or before Priest JA and which the applicant sought to rely on at his election hearing. The hearing date was vacated to allow issues surrounding this report to be addressed and to allow the applicant to make a new application to VLA for representation. The matter was re-listed for 27 May 2015. This date was vacated as VLA had yet to make a determination whether to represent the applicant, and so as to allow time for the Crown to file a report in response to Mr Whitehouse’s report. On 9 June 2015 the Crown provided the Court with a copy of a report by Mr Bryson Shearwood of the Victoria Police Forensic Science Department dated 25 June 2015. Thereafter, the applicant was advised that VLA would not provide representation. On 14 July 2015 the applicant’s partner provided the Court with a further report of Mr Whitehouse dated 12 July 2015. An ‘updated’ report of Mr Whitehouse dated 29 July 2015 was provided to the Court on 8 September 2015 together with a number of other documents. The matter was re-listed for hearing on 20 November 2015.
The applicant’s written case had been prepared by counsel on his behalf. The applicant did not have legal representation at his election hearing. Prior to this hearing, on 8 September 2015, the applicant filed a series of documents with the Registry. The documents were: a general application which referred to four attached ‘Exhibits’ denoted A, B, C and D which were said to constitute ‘new evidence’; a statement addressing the new evidence and a number of other complaints about the manner in which the trial had been conducted and setting out asserted shortcomings and inconsistencies in the prosecution case; and documents described as ‘Exhibits’ E, F and G which addressed both asserted shortcomings and inconsistencies in the prosecution evidence and additional material in the possession of the defence at the trial but not led in evidence. At the hearing two CDs referable to ‘Exhibit A’, one referable to ‘Exhibit B’, and one referable to ‘Exhibit C’ were produced to the Court.
In the course of the oral hearing it emerged that, in addition to the complaint made in proposed ground 2, the applicant wished to contend that there had been a substantial miscarriage of justice on the ground that the judge’s charge had been unfair and unbalanced in his treatment of the evidence of a police officer witness, Constable Albano. The document denoted ‘Exhibit G’ complained of the judge’s repeated instruction to ‘treat Constable Albano’s evidence with great caution’.
Before turning to the proposed grounds in the application, the complaint raised concerning lack of balance, and the matters addressed in the documents filed on 8 September 2015, it is necessary to say something about some aspects of the evidence at the trial and some other material relied upon by the applicant. Mindful of the fact that this is an application for leave which was not argued on the basis that if leave were granted the appeals would be heard instanter,[3] it is neither necessary nor desirable to review the evidence in detail or to attempt a comprehensive overview of the case.
[3]Because the applicant did not have legal representation at the election hearing, the parties had been advised that if leave were granted the appeals would not be heard instanter. This course was taken so as to give the applicant the opportunity to seek legal assistance either from VLA or elsewhere before argument on the substantive matter or matters.
Relevant aspects of the evidence and other material
The applicant and the complainant (who I will call ‘M’) had known each other for approximately two years at the relevant time. M was in a relationship with a friend of the applicant and she was a friend of the applicant’s girlfriend. M’s partner (who I will call ‘J’) was in gaol serving a short sentence at the relevant time.
On 9 August 2012 an incident occurred between M and the applicant. By the time of the trial there was no issue that there had been sexual activity. The issue was whether it had been consensual or not. The incident occurred at M’s house. The applicant arrived at M’s house at approximately 5:00 pm. The incident occurred after they had been talking for a time, had had a cigarette together on the porch outside, and had then returned inside. M and J’s young son was present in the house at the time.
For present purposes, it is unnecessary to set out M’s account of what occurred save to say that at the trial M’s evidence was that the applicant had exposed and kissed her breast without her consent (charge 1: indecent assault), had penetrated her vagina with his fingers without her consent (charge 2: rape), and had pulled down her pants and touching her back and bottom with his penis without her consent (charge 3: indecent assault). M’s evidence was that she resisted and the applicant left.
M complained about the incident to J and to others shortly after it occurred and she reported the incident to the police that night. Constable Albano was the first police officer she saw.
When police conducted a record of interview with the applicant, he denied that any sexual contact between him and M had occurred. At the trial, the applicant gave evidence that there had been sexual contact but that it had been consensual and had been initiated by M. He explained his denials in the record of interview by saying that he had been in a relationship at the time, that he was concerned J would inflict violence on M if he learned of what had occurred, and that he had promised M not to say anything.
Swabs which had been taken from the neck and breast of M contained the applicant’s DNA.
The background to the applicant’s visit to M that day was as follows. For some time the applicant and M had been discussing J’s infidelity or possible infidelity. M’s evidence and the applicant’s evidence differed as to who had initiated these discussions. The applicant visited M on the day of the incident to talk about this supposed infidelity. The applicant purported to give M what he said were details of the other woman involved, who he named as ‘Penny’, and also discussed a friend of ‘Penny’ who he named as ‘Georgina’. The applicant admitted in his evidence that these details were all lies. He said he told these lies because he had been repeatedly asked by M about the possibility of infidelity by J, and that he thought this would be a means of stopping these enquiries. The prosecution case was that these lies were part of a premeditated plan to pursue a sexual interest which he had in M.
Unbeknownst to the applicant, M had a microcassette recorder in her pocket when the applicant’s visit began. She had decided to record what he said so that she would have evidence of what the applicant was telling her about J’s supposed infidelity. The recording is approximately 15 minutes long, which was the length of the one side of the microcassette used. The evidence at the trial was that the recording finished when the tape ran out. M’s evidence was that she believed the tape stopped before the incident began. The recording was tendered by the defence during M’s cross-examination as Exhibit 1. I will return to that recording as it is that recording which is the subject of the ‘new evidence’ referred to in the documents filed 8 September 2015.
Not long after the incident, and after the applicant had left, J rang M from gaol. A recording of that call was tendered as part of M’s evidence-in-chief as Exhibit B. M sounds very upset during that call. At times she sounds as if she is hysterical. M gave J an account of what had occurred in that call. She attempted to play him parts of the micro-cassette recording without much success.
M also complained to others and she attended Preston Police Station that night. The police officer on the front desk was Constable Albano.
An important part of the defence case at trial concerned what were said to be inconsistencies between M’s various accounts of what had occurred. One inconsistency particularly relied upon concerned Constable Albano. In cross-examination Constable Albano agreed with a proposition put to him by counsel for the applicant that M had told him that she had been forced by a male to give him oral sex. In her evidence M had confirmed that that had not occurred and she had said that she could not recall saying that it had. In re-examination Constable Albano said that he had not made a note of this complaint about oral sex but said that it had been ‘a key point’ that he had kept in the back of his mind and that he had included it in a briefing which he had given specialist sexual offences police when they had arrived and taken over the matter that same night.
Later, under police instructions, M made what is sometimes called a ‘pretext’ call to the applicant. That call was recorded. It was not the subject of evidence at the trial. That call is one of the matters dealt with in the documents filed by the applicant on 8 September 2015.
Proposed ground of appeal 1: evidentiary burden on accused
Three passages in the judge’s charge are relied upon in the written case concerning this proposed ground.
The first passage is a portion of the charge dealing with the applicant’s evidence. The judge said:
You do not need to be convinced that this is what happened [i.e. the applicant’s version] in order to find him not guilty. If you find that explanation reasonable in the light of all the evidence then you will acquit him. This is because the burden is on the prosecution to exclude all reasonable hypotheses that are inconsistent with his guilt. If you find that the evidence which the prosecution has brought forward makes that explanation unacceptable and that it is an explanation that can be excluded given all the evidence that you find proven, then as long as you are satisfied of the facts beyond reasonable doubt that have been proven, you will convict him. Just remember that if you think any facts are essential to your determination, those facts must be proven beyond reasonable doubt.
The next passage concerned prior inconsistent statements, including the inconsistency relied upon by the defence based upon the evidence of Constable Albano. The judge said:
If you do find that they are inconsistent with her account to the court, you may use those statements in assessing her credibility and reliability. You may find that the fact that [M] had previously given an inconsistent account means that the evidence she gave in court is less likely to be truthful or accurate. You may decide that. You may therefore be less willing to accept her evidence. It is for you members of the jury to determine whether or not to draw this conclusion and we go back to drawing conclusions.
What are the established facts, what are you satisfied of in relation to what was actually said, how it was said, when it was said, why it was said, under what circumstances. What facts about that are proven beyond reasonable doubt and then what inferences can you draw beyond reasonable doubt is the only reasonable inference from that. It is for you to determine whether or not to draw that conclusion from any inconsistencies you find. Keep in mind that a witness who gives inconsistent accounts is not necessarily lying.
The applicant had contended that M was motivated to lie out of guilt because she was the one who had initiated the sexual activity. When dealing with the competing submissions which had been made concerning a motive in M to lie, the judge said:
Of course if you accepted what he says as a motive then that would lead you to reassessing her evidence and you would follow that line of reasoning through to see what impact it had on that credibility and reliability.
Priest JA refused leave to appeal. The way the matter was put was that the passages complained of had conveyed to the jury that they could make a positive finding of fact inconsistent with guilt but just treat that finding as part of the overall circumstantial picture rather than as an obstacle to conviction. Priest JA concluded that reading the charge as a whole the jury would have been left in no doubt that the burden of proving the case lay on the prosecution and that the prosecution needed to prove the case beyond reasonable doubt.[4] Priest JA did refer to what he described as ‘infelicity of expression’ in the third passage.[5]
[4]Leave Reasons [20].
[5]Ibid.
There are aspects of the three passages relied upon in relation to proposed ground 1 which, in my view, are at least open to an argument that a misdirection occurred.
The first passage appears to be a form of a Liberato direction.[6] It does not include all of the features of the standard Liberato direction.
[6]So called by reference to the High Court decision in Liberato v The Queen (1985) 159 CLR 507.
In relation to the second passage, it seems to me to be arguable that the jury might have been led to consider that they should apply the standard of proof beyond reasonable doubt to Constable Albano’s evidence.
The third passage is, as Priest JA said, expressed in an infelicitous manner. It arguably may have led the jury into error. If the jury accepted the applicant’s postulated motive in M to lie, it is difficult to see how they could have convicted him.
For the reasons set out below, I have concluded that leave to appeal should be granted on an amended version of proposed ground 2. That will require a consideration of the charge as a whole.
With some hesitation, and influenced by the fact that the charge as a whole will need to be reviewed in any event in order to address the amended proposed ground 2, I would grant leave to appeal on proposed ground 1.
Proposed ground of appeal 2: judge’s treatment of the evidence of Constable Albano
The passage of the charge relied upon in relation to proposed ground 2, is the following:
And the second one which is probably the most stark inconsistency is the evidence given by Albano, the young constable who says that [M] told him that there had been some either reference or some attempt at oral sex. This is a comment of mine members of the jury, both in relation to Lewis but particularly in relation to Mr Albano. Mr Albano was an inexperienced police officer, one of the skills which police officers develop over time is how you take notes. The fact that he briefs experienced sexual investigators later on and puts in the allegation that the complainant has told him about oral sex, comes in the heels of no note taken by him as a young inexperienced officer.
And my comment is that you should be very cautious and very careful to rely on his evidence when he says that [M] told him that detail. I am not telling you one way or another, I am asking you to examine that carefully and to be very cautious because the background situation is one which may lead to some unreliability about that. Now that is a matter entirely for you, you may have thought that he was very careful in his evidence, that he was adamant that he was taken through that evidence clearly.
I am sounding for you a note of caution when looking at his evidence in concluding that what he said is reliable about what [M] told him, particularly in view of the fact that that allegation does not appear in any other complaint whatsoever, which may be a way of testing whether that allegation was really made or whether perhaps there might not have been some conflation or confusion of thought by a young police officer involved in a serious investigation, probably for the first time who is not even investigating anything, he is just at the front desk. So I am simply sounding a note of caution if you are to rely on that evidence.
The ground as presently formulated contends an error was made because what was said conveyed to the jury directions of law rather than comments on the facts. Priest JA refused leave to appeal on this ground because the judge had made the difference between directions and comments perfectly clear and the remarks in the impugned passage were quite plainly said by the judge to be comments. I agree. The proposed ground as presently formulated is not arguable.
In the course of the election hearing the applicant was asked whether complaint was made about this portion of the charge on the basis that it was unbalanced and unfair. On one view, such a complaint is contained in the document filed by the applicant on 8 September 2015 as ‘Exhibit G’. The applicant confirmed that he did wish to make that complaint.
When that matter was taken up with counsel for the respondent, passages of the transcript were referred to in which counsel for the applicant had complained about the way in which the evidence had been dealt with in the relevant part of the charge. As a result of the concerns he raised, the judge returned to the issue and redirected the jury by summarising Constable Albano’s evidence.
The applicant ought to have leave to appeal on the ground that the charge in this respect was unbalanced and unfair. Proposed ground 2 must be amended accordingly. The matter was not addressed in this way in the written cases considered by Priest JA. The respondent has had no real opportunity to address this proposed amended ground. In the circumstances it is preferable not to address the merits of the argument save to say that, in my view, it is reasonably arguable that a substantial miscarriage of justice occurred by reason of an unbalanced and unfair treatment of Constable Albano’s evidence in the charge.
Documents filed 8 September 2015
The documents filed on 8 September 2015 (and the four CDs produced) raise a number of issues.
The first issue raised concerns the recording of the conversation between M and the applicant on 9 August 2012. This recording was tendered on behalf of the defence in the course of M’s cross-examination (Exhibit 1). The statement filed with the general application (‘the applicant’s statement’) asserts that the recording had been ‘edited’ and that M ‘had done this on another device and transferred what she wanted onto the micro cassette recorder’. The applicant’s statement asserts that the lawyer ‘provided by VLA’ had told him that the audio had been checked and ‘there was nothing on there’. The statement asserts that expert analysis by a Mr Mark Whitehouse has since revealed that the recording had been ‘edited’ in two places and that part of the recording had been ‘deleted’. A report from Mr Whitehouse dated 29 July 2015 and denoted ‘Exhibit A’ is amongst the documents the applicant filed. Also amongst those documents is: an affidavit by Mr Whitehouse sworn 29 July 2015 deposing to his instructions and attaching his report; a statement by a forensic officer at the Audio Visual Unit of the Victoria Police Forensic Services Department, Paul Anthony Tierney; and a further statement by the applicant, attached and denoted ‘Exhibit B’, which makes complaint about his solicitor’s failure to have the audio tape analysed and which attaches a letter from Mr Whitehouse to the applicant’s partner, Ms Sue Sandonato, dated 17 April 2015 referring to dealings he had had with the applicant’s solicitor in January 2014, before the applicant’s trial. Amongst the complaints made is the assertion that one reason why the audio tape was not examined prior to the trial was because his barrister was changed on the Friday before the trial started on the Monday. It is asserted that there was not sufficient time for the new barrister to prepare and to study the case. The two CDs referrable to ‘Exhibit A’ extract the portions of the recording where the ‘edits’ are said to have been made.
At the end of the applicant’s statement he refers to the fact that the informant had given evidence that he played the audio tape a few times and listened to it, and that the tape was 15 or 16 minutes on each side. The applicant’s statement asserts that the informant ‘didn’t have the original audio at the trial’ and that ‘he had this audio transferred on to a CD and brought a copy to the trial for the jury to hear’. The document denoted ‘Exhibit H’ asserts that the informant ‘lied to the courts’ because he knew the tape had ‘2 edit points’. It asserts that the informant made a copy of the call onto a CD ‘because when listening to the audio you can hear a click sound, this is why he didn’t bring the original recording to the court and only had a copy for the jury to listen to’.
The second issue raised concerns the pretext call. The applicant’s statement asserts: ‘You can hear on the recording Exhibit C that I had no idea what [M] was talking about.’ The CD referable to ‘Exhibit C’ contains a recording of the pretext call. The complaint made is that this call was not tendered and played at the trial. The document denoted ‘Exhibit C’ is a statement by the applicant asserting that the pretext call and the failure of M to ‘get a confession out of me’ proved that ‘I didn’t do this to her and shows that she lied and made this story up’. The document denoted ‘Exhibit C’ also includes a passage from M’s cross-examination in which she had agreed with a suggestion put to her that she does not swear on the bible but does swear on her father’s ashes. The assertion is made that this was consistent with an aspect of the applicant’s evidence namely that they had each promised each other never to tell anyone about the incident and that he had sworn on God and that she had sworn on her father’s ashes.
The third matter raised concerns another recording. It is said to be a recording of J talking to Ms Sandonato. The CD referable to ‘Exhibit D’ is said to be a copy of this recording. The document ‘Exhibit D’ is a statement by the applicant. In it the applicant asserts that the recording reveals J is ‘having doubt that what [M] has reported’. It asserts:
For [J] to have called he didn’t believe that [M] was telling the truth because [J] knows that [M] is a liar and is hiding something.
The next matter raised concerns evidence given in the trial by a medical practitioner, Dr Nicole Dyer. The document denoted ‘Exhibit E’ is a statement by the applicant in relation to Dr Dyer’s evidence and includes extracts from the transcript of Dr Dyer’s evidence. It is asserted that because there were no physical injuries located by Dr Dyer, in particular no bruising or marks or genital injuries, there was accordingly ‘no proof I did this’.
The next matter raised concerns evidence given by persons to whom M made complaint. The document denoted ‘Exhibit F’ concerns the evidence given by two of the persons to whom M made complaint and inconsistencies which are said to exist between their evidence of the complaints made and M’s evidence at the trial. Extracts from the transcript of the trial are included. A forensic medical examination record in relation to M is also included. In oral submissions the applicant explained that he included the forensic medical examination record so as to indicate the clothing that M was wearing on the day. It was submitted that given the amount of clothing M had been wearing (a bra, two singlets, a jumper and a jacket) it would not have been possible for him to have pulled her top down in the way that she had said that he did.
The next matter raised concerns the evidence of Constable Albano. The applicant’s statement refers to the evidence Constable Albano gave concerning ‘some attempt of oral sex’. In that context complaint is made about the judge having ‘put pressure on the jury’ to reach a verdict after they had been deliberating for four days. Complaint is also made that the judge ‘repeatedly instructed the jury to treat Constable Albano’s evidence with great caution’. The document denoted ‘Exhibit G’ is a statement repeating these complaints and attaching the reasons of Priest JA and an extract from the transcript of Constable Albano’s evidence.
I will address each of these matters separately. Most of the emphasis in the applicant’s oral submissions was on the recording of 9 August 2012.
Recording of 9 August 2012 — applicant’s material
Mr Whitehouse deposes in the affidavit forming part of the documents denoted ‘Exhibit A’ that he has a Bachelor of Electronic Engineering and a Diploma of Radio and Television Service. He says that he completed ‘forensic audio courses’ in the USA in 2006 and 2012. He gives no detail of those courses. In his report of 29 July 2015 he says that he has listened to the recording of the conversation between M and the applicant on 9 August 2012 and has identified two occasions where the recording device has been stopped and restarted. He places the first at 1:09 and the second at 12:44. He describes what he has detected as ‘edit points’, and he concludes that the handling noise heard around the edit points indicates that the tape has been manually restarted at those points. He also concludes that the tape stops recording at 15:40 because the ‘tape has run out’. He make the (self-evident) observation that whatever conversation there was when the recording was stopped would not have been recorded.
Mr Tierney, the forensic officer at the Audio Visual Unit of Victoria Police Forensic Service Department whose statement the applicant also produces, holds a Bachelor of Science (Applied Physics), has worked at the Audio Visual Unit since December 2007 and has previously worked as an Acoustic Consultant and Noise Management Officer within the Victoria Police Forensic Service Department. In his statement Mr Tierney places the two points at 1:13 and 13:20. In his opinion they are what he describes as ‘record overs’. He says these events occur when there is a momentary recording over of the original recording beneath. He says this can happen by accident when the recording is being replayed.
Material in the documents denoted as ‘Exhibit B’ reveals that the existence, or possible existence, of these features of the recording was known to the applicant’s solicitor before the trial. In the letter which is part of the documents denoted ‘Exhibit B’, Mr Whitehouse, writing to Ms Sandonato, says:
We had quoted PICA Lawyers in January 2014 for this work to be done. We did our preliminary investigation which showed the potential that edits had been done of the content. Which we reported to Bridget Coats at PICA [the applicant’s solicitor].
We did hear back from them briefly as she mentioned that they had a budget to cover the $120 for the initial work but couldn’t cover further work. I thought that was strange at the time given that there was a potential that the supplied recording was not a true reflection of the circumstances that had taken place.
After you contacted us later in the year to proceed with the work yourself I contacted PICA again to make sure there was no conflict in doing the work directly with you. At that time it was expressed to me that there was no money to do that work and that in their opinion it was better to concentrate on other avenues as the audio was only a small part of the case.
The applicant is critical of his former solicitor for making the decision not to pursue the issue.
Recording 9 August 2012 — respondent’s submissions
The respondent submitted that the evidence now sought to be put before the Court should not be admitted. The respondent submitted the existence of ‘edits’ is ‘contestable’ and, in that respect, relied upon Mr Tierney’s statement. The respondent also relied upon an earlier statement of Bryson Shearwood (which was attached), another forensic officer at the Audio Visual Unit of Victoria Police Forensic Services Department, to which the statement of Mr Tierney referred.
The respondent submitted that, in any event, leave should be refused for four reasons. First, the evidence was not led in the trial because of a conscious decision by the applicant’s lawyers. The applicant should be bound by the forensic decisions made on his behalf by those representing him. Secondly, it was the defence not the prosecution that relied upon the recording at the trial. It was not put to M that parts of the conversation had not been included in the recording; on the contrary, defence counsel had confirmed with M in her cross-examination that the recording was ‘continuous’. The recording was relied upon by defence counsel in final address as revealing that the complainant was ‘tenacious’ in pursuing the applicant about her partner’s supposed infidelity and as supporting a submission that the applicant had said that he intended to leave shortly after he arrived. That submission would have been undermined if the recording was not continuous. Thirdly, the applicant was a party to the recorded conversation. He gave evidence in the trial. At no point did he suggest that some part of the relevant conversation had not been included in the recording. Finally, it was submitted that, at best, the evidence could only go to M’s credibility.
Relevant legal principles
Where an applicant seeks to rely upon what is contended to be new or fresh evidence the relevant issue is whether there has been a substantial miscarriage of justice.[7] In addressing that issue in this context the authorities establish that ordinarily there will be no miscarriage of justice based upon new or fresh evidence unless: the evidence was not available at trial; the evidence is relevant and admissible; the evidence is apparently credible; and the evidence is such that there is, at the least, a significant possibility that the jury would have acquitted the applicant if the evidence had been before it.[8] In the end, of course, these factors, whilst always relevant, cannot be permitted to act as obstacles to a successful appeal where, on an analysis of the entire position, a conclusion is reached that a substantial miscarriage of justice occurred.[9]
[7]Criminal Procedure Act 2009 s 276(1)(c).
[8]R v Nguyen [1998] 4 VR 394, 400–401 (Kenny JA); R v AHK [2001] VSCA 220 [9] (Winneke P). See, more recently, eg Weng v The Queen [2013] VSCA 221 [29]–[30] (Osborn JA, Buchanan and Neave JJA agreeing).
[9]R v AHK [2001] VSCA 220 [9]..
As to forensic decisions made about the way a trial should be conducted, in R v TKWJ Gleeson CJ said:
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.[10]
[10](2007) 212 CLR 124, 130–1 [16] (‘TKWJ’). See also Patel v The Queen (2012) 247 CLR 531, 562–3 [114] (French CJ, Hayne, Kiefel and Bell JJ) and Hajar v The Queen [2015] VSCA 233 [34] (Maxwell P, Priest and Kaye JJA). The same principles apply in respect of forensic decisions made by counsel and solicitors in relation to the conduct of a trial: see, eg, R v Calis [2013] QCA 165 [21], Powell v Chief Executive Officer of Customs [2012] QCA 338 [55]–[56] and R v Lumley [2004] QCA 120 [69] and [70].
Recording 9 August 2012 — analysis
This is not a case where something previously entirely unknown has come to light after the trial. The applicant’s own material makes it clear that the existence of what the applicant’s expert now describes as ‘edits’ was known to his legal advisors before the trial and a decision was made not to pursue the matter as it was not seen as being potentially significant. The decision was that resources would be better spent in other areas.
It seems to me that what transpired at the trial confirmed that there was a sound basis for that forensic decision by the applicant’s legal advisers. Counsel argued the matter, and made submissions in support of the applicant’s defence, relying upon the proposition that the recording was complete and continuous. The applicant himself gave evidence and did not suggest that the recording was anything other than the conversation which occurred during the first 15 minutes in which he was in the house. He did not suggest something had happened during that time which had not been recorded. It was, after all, the defence which tendered the recording, not the prosecution. It was the defence that sought to rely on it.
Notwithstanding these obstacles to acceptance of the applicant’s position, I have listened to the recording and have listened to the two CDs referable to ‘Exhibit A’ which mark what Mr Whitehouse describes as ‘edits’ and what Mr Tierney considers to be momentary ‘record overs’. I will call them ‘events’. The conversation on either side of each of the events appears to me to be continuous, or at least not clearly discontinuous. Certainly, the subject matter of the conversation is the same before and after each event, and the conversation continues in the same vein for another three minutes after the second event.
The first forensic officer from the Audio Visual Unit of Victoria Police Forensic Services Department who assessed the two events, Bryson Shearwood, used the term ‘possible switching event’ to describe them. He referred to the fact that the particular recorder had a combined record/erase and playback head. He expressed the following opinion:
In my experience it is plausible that these events were created by the accidental momentary pressing of the RECORD button when listening back to the micro cassette. This accidental partial erasure of cassettes was a common experience during the 1990s and the early 2000s when these types of recording devices were widely used.[11]
[11]Emphasis in the original.
As indicated earlier, M herself attempted to replay the recording to J on the phone not long after the incident whilst she appeared to be very upset. The applicant’s material suggests that the informant had also replayed the tape and that he made a copy of it on to a CD which is what was played to the jury.
On the material before this Court it could not be concluded, as the applicant contends, that M had deliberately edited the tape, or that the informant had engaged in a deliberate deception of the jury. The applicant appears to be under the misapprehension that merely identifying irregularities in the recording leads to the inevitable conclusion that M is responsible for them and that she has committed perjury. This is untenable.
Further, if the tape does record the first 15 minutes or thereabouts of the applicant’s visit, it is difficult to identify what there could have been which was of real significance and which was edited out, given that the incident that was the subject of the charges occurred after then. If something of significance had occurred and been edited out, it seems inconceivable that the applicant would not have said so in his own evidence.
The assertions about the effect of the change in counsel are inconsistent with the applicant’s own material which reveals that a decision was made in January 2014 not to pursue the issue.
Insofar as the applicant’s documents are to be characterised as an application to amend the proposed notice of appeal to add a proposed ground of appeal relating to the admission of fresh or new evidence (proposed ground 3) I would grant the application but refuse leave to appeal on that ground.
The pretext call
The applicant is critical of those representing him at the trial because the pretext call was not led before the jury. As to the legal principles which apply to such a complaint, I refer to the passage from TKWJ quoted earlier.
The applicant handed up a recording of the pretext call on the CD referable to the material denoted ‘Exhibit C’. I have listened to that recording. The applicant considers that the pretext call assists his case. In my view it is not at all clear that that is so. Amongst other things, the pretext call reveals:
·The applicant was very anxious not to talk to M on the phone but wanted to talk to her in person.
·The applicant persisted in his lies concerning ‘Penny’ and ‘Georgina’.
·The applicant did not deny it when M said to him that she had told him to stop but that he had not stopped and that he had pulled her pants down. His response was not to say that that had not occurred. His response was to say that she should not worry about it, that it was ‘nothing’, and that ‘this is just me and you’.
The pretext call may be open to differing interpretations, but in my opinion there was a sound basis for the forensic decision made not to lead the pretext call in evidence.
Call between J and Ms Sandonato
The applicant’s assertions in relation to this call are misconceived and untenable. Even if the call did reveal that J had doubts as to M’s credibility, no basis has been advanced as to how that could have been admissible in the trial. In any event, this is another matter to which what was said in TKWJ applies.
Evidence of Dr Dyer
The matters raised by the applicant in relation to Dr Dyer are all matters that were dealt with in full before the jury and which were properly matters for the jury to assess. In any event, Dr Dyer expressed the professional opinion that genital injuries are ‘uncommonly found after penetration’ (whether that penetration is
consensual or not consensual) and said that it was ‘not unusual to see no injuries’.
Complaint evidence other than Constable Albano
The matters raised in the material in the documents denoted ‘Exhibit F’ concern inconsistencies said to exist between the account given by M in her evidence and the complaints which she made to others, other than Constable Albano, shortly after the incident. Again, all of the matters relied upon were led in evidence before the jury and it was for them to assess them.
Evidence of Constable Albano
Complaint is made in relation to matters concerning the evidence of Constable Albano in the documents denoted ‘Exhibit G’. As indicated, in my view there is sufficient substance in the complaint that the judge ‘repeatedly instructed the jury to treat Constable Albano’s evidence with great caution’ to warrant leave to appeal. It is unnecessary to add anything further.
Conclusion
My conclusion is that leave to appeal should be granted on proposed ground 1. Leave should also be granted on proposed ground 2 provided that it is amended so as to read:
The learned trial judge erred in commenting on the evidence of Constable Albano in a way which was unbalanced and unfair.
Insofar as the matters raised in the applicant’s documents filed 8 September 2015 are the basis of an application to add proposed ground three relating to the admission of fresh or new evidence I would grant the application to amend but refuse leave to appeal on that ground.
SANTAMARIA JA:
I agree with Whelan JA.
KAYE JA:
For the reasons stated by Whelan JA, I agree that leave to appeal should be granted on ground 1 and on revised ground 2 but not on ground 3.
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