Saddik v The Queen
[2018] VSCA 249
•1 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0205
| ASHRAF SADDIK | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | WHELAN, KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 September 2018 |
| DATE OF JUDGMENT: | 1 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 249 |
| JUDGMENT APPEALED FROM: | DPP v Saddik (Unreported, County Court of Victoria, 23 June 2017) (Conviction) |
---
CRIMINAL LAW – Appeal against conviction – Appellant medical practitioner – Convicted of two charges of indecent assault on patient – Address by prosecutor to jury based on speculation and contrary to evidence – Attack by prosecutor on credibility of prosecution witness – No application by prosecutor to cross-examine witness – No application by defence counsel to judge for direction – Verbal admission by appellant to witness – Incriminating conduct evidence – Adequacy of judge’s directions - Substantial miscarriage of justice resulting from prosecutor’s address to jury - Whether appropriate to order acquittal in lieu of retrial - Retrial ordered.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Dann QC and Mr R Edney | Doogue & George |
| For the Respondent | Mr B Sonnett | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA:
I have read in draft the reasons of Kaye and Niall JJA. I agree with them that the appeal on ground 5 must be allowed. I wish to briefly state my own reasons for that conclusion. Otherwise, I agree with their reasons on the other grounds of appeal, and I agree with their conclusion as to the disposition of the appeal for the reasons they have given. These reasons assume knowledge of the reasons of Kaye and Niall JJA.
The prosecutor, in his final address, made the following assertions (expressly or implicitly) which had not been put to Father Abdelmalek:
(1)Father Abdelmalek had been engaged by the accused, or by a combination of the accused and Father Rizkalla, to seek to privately resolve the ‘problem’ of the offences which the accused had committed against the complainant.
(2)Father Abdelmalek was not telling the truth when he gave evidence that the accused had not told him what the ‘problem’ was.
(3)Father Abdelmalek’s evidence was motivated by bias in favour of the accused.
What the prosecutor said was unwarranted and improper, because those matters had not been put to Father Abdelmalek. The prosecutor, if he intended to make those submissions, ought to have sought leave to cross-examine Father Abdelmalek under s 38 of the Evidence Act 2008. There was a clear basis in Father Abdelmalek’s evidence in chief for that application. His evidence was unfavourable to the prosecution, and there were grounds upon which critical aspects of that evidence could have been, and should have been, directly challenged. Those grounds included the following:
(1)Father Abdelmalek maintained that he had volunteered to help solve a ‘problem’ about which he knew nothing, until the complainant told him that she had been assaulted. This might be seen as improbable.
(2)Father Abdelmalek sought to ‘correct’ the transcript of his conversation with the complainant in a critical respect, in a manner favourable to the accused. The transcript recorded him as having agreed with the complainant when she said the accused should not be practicing, and as having said that the accused should ‘pay the price’ and ‘be punished’. Father Abdelmalek sought to ‘correct’ that by adding an untranscribed qualification to the effect that ‘if he had done the wrong thing’ he should be punished.
(3)The burden of Father Abdelmalek’s account of events in his dealings with Mr Fahmy was that Mr Fahmy, acting on behalf of the complainant, was seeking to ‘blackmail’ Dr Saddik. Father Abdelmalek expressly characterised what had happened in that way in his evidence in chief. Father Abdelmalek’s evidence in chief was that Dr Saddik resolutely rejected these blackmail attempts. He said Mr Fahmy had contacted him ‘many times’ and had been trying to ‘force’ him to exercise influence over the accused. The phone records (exhibit B) reveal that Father Abdelmalek contacted or attempted to contact Mr Fahmy on 28 occasions. Mr Fahmy contacted or attempted to contact Father Abdelmalek on 8 occasions. When asked about these figures in evidence in chief (the figures put were ‘approximately’ 29 and 6), he said he could not remember. Perhaps more significantly, Father Abdelmalek unsuccessfully attempted to contact Mr Fahmy 10 times between 4 February and 13 February 2015. His explanation was that he was concerned about Mr Fahmy’s welfare and that he wanted to make sure that he was all right. The nature, timing, and extent of his contacts and attempted contacts with Mr Fahmy might be seen as inconsistent with his characterisation of what had occurred, and his explanation for his attempted contacts in February might be seen to be at odds with his characterisation of Mr Fahmy as a blackmailer.
Counsel for the accused were obviously aware that the prosecutor had made submissions concerning Father Abdelmalek that had not been put to him, and had made submissions which did not have an evidentiary basis. Senior counsel addressed the issue with the jury.
Counsel for the accused, having heard what was said in the prosecutor’s final address, had three options:
(1)They could seek a discharge of the jury. The problem with that course was that Father Abdelmalek had given evidence which was favourable to the accused and which had been substantially unchallenged. There was every reason to be concerned that that position would not be repeated on a retrial.
(2)They could seek judicial directions. Counsel might have had concerns about how such directions might affect the jury, and whether they could highlight issues in a way which was not in the accused’s interests.
(3)They could deal with the issue themselves, pointing out to the jury that there was no evidence for the assertions the prosecutor had made, and relying on Father Abdelmalek’s unchallenged evidence to support submissions made about the complainant’s credit and the credit of Mr Fahmy.
Defence counsel chose the third course, and usually, for the reasons Kaye and Niall JJA have explained, that would be very significant in the consideration of whether any substantial miscarriage of justice had occurred as a result of the prosecutor’s address. Here, however, I consider that a substantial miscarriage of justice occurred notwithstanding that consideration. I have reached that conclusion for two reasons.
First, what the prosecutor said not only attacked Father Abdelmalek’s credit but also suggested that there had been something akin to a conspiracy instituted by the accused which involved enlisting Father Abdelmalek to ‘solve’ the ‘problem’. Viewed in that light, what the prosecutor had said potentially reflected not only on Father Abdelmalek but upon the accused as well. In circumstances where senior counsel for the applicant addressed the jury as soon as the prosecutor had concluded, I am unpersuaded that counsel for the applicant would have appreciated the full import of what the prosecutor had said.
Secondly, adopting the third course was not inconsistent with seeking directions from the judge which would fortify counsels’ submissions to the jury. When viewed now, with time for careful consideration, the prosecutor’s address required that such directions be given in order to prevent a substantial miscarriage of justice.
In those circumstances, I consider that a substantial miscarriage of justice has been established in relation to ground 5, that the appeal should be allowed on that ground, and that a new trial should be ordered.
KAYE JA
NIALL JA:
Following a trial in the County Court, the appellant was convicted of two charges of indecent assault, contrary to s 39(1) of the Crimes Act 1958. He was sentenced to serve a Community Corrections Order for a period of two years, with special conditions, including that he perform 150 hours of unpaid community work during the period of the Order, and that he participate in a sex offenders programme. The appellant, by leave, appeals against his conviction.
At the time of the offences, the appellant was a general medical practitioner, conducting a practice in Coburg. The complainant was born in Sudan, and came to Australia in 1998. At the time of the offences, she was 30 years of age. The appellant
had been her general practitioner for a period of five years before the time of the offences.
At 3.30pm on 10 November 2014, the complainant consulted the appellant about stomach cramps and muscle discomfort around her stomach. The appellant asked her to lie down on an examination table. When she did so, the appellant lifted her skivvy, and commenced to palpate her lower abdomen, where she was feeling pain. In her evidence, the complainant stated that, while the appellant was conducting that examination, he lifted her top and bra to her neck, and squeezed her breasts. That conduct was the subject of charge 1. The appellant then kissed and suckled the complainant’s right breast over the nipple. That conduct was the subject of charge 2.
Two days later, on 12 November 2014, the complainant reported the matter to the police. She subsequently made a statement to the police on 31 January 2015. Shortly after the complainant had reported the matter to the police, she was contacted by Father Thomas Abdelmalek, a parish priest of St George Coptic Church in St Albans. Father Abdelmalek met with the complainant and sought to act as an intermediary between the complainant and the appellant in respect of her complaint against him. As a consequence, the complainant sought the assistance of a friend, Hany Fahmy. Mr Fahmy spoke with Father Abdelmalek, and also had a conversation with the appellant, in which, the prosecution alleged, the appellant made a form of an admission to him. The appellant, Father Abdelmalek, Mr Fahmy and another priest, Father Mina Rizkalla, each gave evidence at the trial.
The other principal witness was the informant. In his evidence-in-chief, the prosecution tendered, as Exhibit D in the trial, the medical records of the appellant relating to the complainant. Those records contained two notations concerning the consultation with the complainant on that day. The first notation, entered at 3.55pm, recorded that the complainant felt burnt out, that it was ‘not her day’, and that she had had problems at work. The notation then stated:
burn out.
also somatizations with headache, also feels tender ab with epigastric tenderness
and unable to perform her exams and exercises.
feels exaggerating things expecting worse things to happens.
insomnia.
The second notation, that was entered at 6.18pm on the same date, was in the following terms:
she is very worried of her abdominal pain, chest pain with breast tenderness and left shoulder pain.
she is still worried about contracting cancer?
seeking to be fully re-examined.
thorough physical examinations and discussion.
assured no signs could suggest any sinister pathology.
no lumps.
no LN.
no tender bones.
no signs of pathological fractures or lumps.
That second entry, at 6.18pm, was relied on by the prosecution in the trial as incriminating conduct on behalf of the appellant. In the course of cross-examination of the informant, the defence tendered, as Exhibit 3, the records of 24 of the appellant’s other patients between 5 November 2014 and 17 November 2014, in which the appellant had made two entries on the same day for the same patient, the second entry being made at a time subsequent to the first.
Grounds of appeal
The appellant, by leave of a single judge of the Court, relies on five grounds of appeal. During the appeal, the appellant was given leave to substitute, for ground 4, a reframed ground 4A. The grounds of appeal are as follows:
1.A substantial miscarriage of justice occurred because of the use of an alleged admission in circumstances where the probative value of that evidence was outweighed by unfair prejudice to the appellant and it was not open to use the utterances attributed to the appellant as an admission.
2.A substantial miscarriage of justice has occurred because of the failure by the learned trial judge to direct the jury that before they could use the appellant’s use of the word “mistake” as an admission they had to be satisfied that when the appellant said that word he was intending to make an admission to the specific offences on the indictment.
3.A substantial miscarriage of justice has occurred because of the adducing of evidence by the prosecutor from a witness to previous representations, that the appellant has never denied the allegations.
4A.A substantial miscarriage of justice has occurred, in circumstances where there was a failure to comply with the provisions of the Jury Direction Act 2015 – as those provisions relate to evidence of incriminating conduct – both at the stage when the learned prosecutor relied on certain evidence as evidence of incriminating conduct and at the stage when the learned trial judge gave his direction as to the evidence relied upon as evidence of incriminating conduct.
5.A substantial miscarriage of justice has occurred because of the failure of the prosecution to challenge the evidence of Father Thomas Abdelmalek on the basis of bias and partiality and despite the absence of such a challenge, the advancement of an argument to the jury in the prosecutor’s closing address that the testimony of that witness was biased and partial to the interests of the appellant.
In order to give context to those grounds, it is necessary to summarise the evidence of the appellant, Father Abdelmalek, Father Mina Rizkalla and Mr Fahmy, in more detail.
Summary of evidence
In her evidence, the complainant stated that, when she consulted the appellant on the day of the offences, she told him that she had some stomach cramps and muscle discomfort, and that she had not felt that sort of pain previously. After she lay on the examination table, the appellant lifted her top to below the level of the bra line, and pressed on her lower abdomen to ascertain where she was feeling pain. The complainant, who was looking at the ceiling, then felt the appellant’s hands go under her bra, and grab her breasts. She said, ‘Wait doctor what are you doing? The pain is not there’. In response, the appellant moved his hands, and kissed the right side of her breast. She also felt suckling on it. The appellant said, ‘You’re beautiful’. He then said, ‘I’m sorry’. The complainant was then in a state of confusion and disbelief. She put her clothes back on, and left, after the appellant gave her a prescription.
Subsequently, at 7.30pm, the complainant sent the appellant a text message stating:
… What’s happened today was inappropriate in so many ways. You examining me let to kiss of my breasts that I’m feeling mentally disabled as you are one of our trusted doctor. My family appreciate you and this has just broke my trust in so many ways. I’m not feeling well at all, I’m still shaken by your actions which I’m not sure what’s provoked it. It’s a really big deal.
After she sent that message, the appellant tried to telephone her a couple of times on the same day, and a couple of times on the next day, but she did not answer her telephone. As she was still feeling shocked, she consulted a psychologist called Daniel, who, in turn, contacted the Footscray Police Station. As a consequence, the complainant spoke to a police officer at Fawkner Police Station on 12 November. She subsequently received a further message from the appellant, and responded with a text message stating: ‘Please don’t contact me again, I’m talking to police, just stop violating your patient after long years of trust …’.
On the following day, the complainant was contacted by Father Thomas Abdelmalek. She had not known him previously. Father Abdelmalek told the complainant that he wanted to talk to her about ‘a problem’, which was to do with the appellant. As a consequence, they met at a small restaurant in Sunshine. Father Abdelmalek told the complainant that there was a problem he wanted to sort out. When the complainant asked him what the problem was, Father Abdelmalek responded that he wanted to hear it from her, because the appellant had come to him and said there was a problem and he wanted to sort it out. In the conversation, Father Abdelmalek spoke about forgiving and moving on, and not to worry about going to any authorities. He said he could help the complainant mentally and spiritually. The complainant recorded the conversation on her mobile telephone, and the recording, and a transcript of it were tendered in evidence.
After that meeting, Father Abdelmalek tried to telephone the complainant again. As she had mixed feelings about him, she ended up speaking to her friend, Mr Fahmy. She told Mr Fahmy what had happened with the appellant, and that she had been contacted by Father Abdelmalek, who had said things that she was not happy about. She said she did not want to continue to speak to Father Abdelmalek.
As a consequence, Mr Fahmy spoke to Father Abdelmalek, and then reported back to the complainant. He told her that Father Abdelmalek had mentioned again there was no need for the police to be involved and that there were ways of sorting the problem out. When asked by the prosecutor whether she had ‘mapped out’ a proposal with Mr Fahmy to put to Father Abdelmalek, the complainant responded that she did not map anything out, but Mr Fahmy discussed with her that there was a request that the appellant should apologise and pay sums of money of $100,000, pay her psychological or medical bills, and for an overseas trip. The complainant said that she made no comment in response to Mr Fahmy’s suggestion.
The complainant was then cross-examined for almost one day. Her cross-examination occupied 100 pages of the transcript. It is not necessary, for the purpose of the issues raised by this appeal, to summarise it in any detail. However, it is relevant to note the topics covered by the cross-examination.
The cross-examination commenced with questions that were directed to demands which, it was put, had been made by the complainant to the appellant for compensation. The complainant was then cross-examined about the fact that, after she initially saw the police, she prevaricated on a number of occasions, before ultimately making a statement at the end of January 2015. It was put, in the cross-examination, that the complainant had deferred making the statement, while seeking to negotiate the demands she was making upon the appellant for money and other matters. Counsel put to the complainant: ‘Do you deny that you and Mr Fahmy together came up with an idea to get money out of (the appellant)?’.
After further questions, counsel suggested that, by the time the complainant telephoned the police on 26 January 2015 to make an appointment to make her statement, the request had been made to the appellant through Mr Fahmy for $100,000 and a business class holiday, and that that had been refused, with the appellant stating that under no circumstances would he meet those demands. In further cross-examination, the complainant was questioned as to why she did not tell the police about the demands that were made on the appellant for the payment of $100,000 and the provision of a holiday. Counsel suggested that the complainant did not tell the police about those matters because she had made up the allegations so she could get money out of the appellant.
The cross-examination, so far summarised, covered some 50 pages of the transcript. Counsel then diverted, for the following 25 pages of the transcript, to question the complainant concerning her evidence relating to the offences, and the appellant’s examination of her on 10 November 2014. Counsel then, for the balance of the cross-examination, that occupied a further 25 pages of the transcript, reverted to the topic that she had commenced the questioning with, suggesting that the complainant had conspired with Mr Fahmy to make demands upon the appellant in order to make money out of him.
Counsel cross-examined the complainant about her contacts with Father Abdelmalek. Referring to the transcript of the first conversation that the complainant had with Father Abdelmalek, counsel put to her that the compensation that she was requesting was the payment of money. Counsel directly put to the complainant that she had got Mr Fahmy involved because she thought that he might be useful in helping to extract money from the appellant. She suggested that the complainant had a ‘big conversation’ with Mr Fahmy, in which they came up with the four points that they were going to demand from the appellant. The complainant repeatedly rejected the proposition that she had asked for money. She said that she was going to sue the doctor, and that she was going to go to the police about his conduct.
After further cross-examination along the same lines, counsel concluded by putting to the complainant that the assaults which she alleged never occurred, that she made them up in an attempt to get money out of the appellant, and that she had withheld making a formal statement to the police while she was trying to get money out of the appellant and the other benefits, including the holiday. The complainant rejected each of those propositions. Counsel put to the complainant that she had enlisted the aid of Mr Fahmy because he was going to be helpful in extracting the money, that together, they came up with the four points, and that when that was refused, she went to the police and made a formal statement. Again, the complainant rejected each of those propositions.
Father Abdelmalek, in his evidence, said that he had consulted the appellant as his general practitioner for more than 20 years. On one occasion, in 2014, when he attended the appellant at his practice, the appellant told him that he was upset, that one of his patients had upset him, and that he was not happy ‘about what she accused me’. Father Abdelmalek did not ask the appellant what the problem was, because it was ‘something private’, and the appellant did not tell him. Father Abdelmalek asked the appellant if he could help, and, in response, the appellant gave him the complainant’s telephone number.
As a consequence, Father Abdelmalek telephoned the complainant on 20 November, and arranged to meet with her at a coffee shop. At that meeting he told the complainant that if the appellant did something wrong, he should be punished. She told him that she would see a solicitor, and Father Abdelmalek said, ‘It’s up to you’. He also told her that he hoped to solve the problem in a peaceful way, but he did not know exactly what the problem was. He said that if the complainant wished to go to the police, or to a lawyer, or to the court, it was up to her, but if she wanted him to be involved because he was a priest, he had no authority to force her, he was a man of peace who could only conciliate. The complainant then started to negotiate about compensation, stating that the appellant should pay the price. In the course of the conversation, the complainant told him that the appellant had assaulted her. At the conclusion of the meeting, Father Abdelmalek said that if she needed any help from him, she could call him.
Subsequently, Father Abdelmalek received a telephone call from Mr Fahmy, and they arranged to meet at Father Abdelmalek’s church in St Albans. At that meeting, Mr Fahmy said that the complainant had told him about ‘the story’, and then Mr Fahmy started to negotiate. He said that he could end the matter if the appellant paid $150,000 or $170,000, that the complainant needed a holiday every year on first class airline air flights and accommodation, and that the appellant should also pay the cost of treatment by a psychiatrist or psychologist. Father Abdelmalek responded that it was not his business, that he was a person who dealt with the spiritual issue, but that he would inform the appellant about what Mr Fahmy had said. Father Abdelmalek, in his evidence, said that the conversation ‘made me sure more that this is a blackmail look to (the appellant)’.
Father Abdelmalek met Mr Fahmy again subsequently at a restaurant. Father Abdelmalek told Mr Fahmy that the appellant rejected the deal that was offered by Mr Fahmy, and he requested Mr Fahmy to telephone the appellant. As a consequence, Mr Fahmy telephoned the appellant.
At that point in his evidence, the prosecutor, in the absence of the jury, sought leave to cross-examine Father Abdelmalek, pursuant to s 38 of the Evidence Act 2008, on the basis of a previous statement made by the witness, which was inconsistent with his present evidence. The prosecutor, having outlined the inconsistency to the judge, said:
And there’s an issue about his potential bias, I suppose given his relationship with the accused …
After further discussion with the judge and counsel for the appellant, the judge said that he was ‘a bit loathe’ to permit cross-examination on bias at that time, but that he would permit cross-examination concerning the previous inconsistent statement. The judge said that ‘we can deal with that other matter (bias) if it comes to that stage’, but he would probably need to consider what further evidence was given before that was done. The judge stated to the prosecutor, ‘I think you might need a further application’.
Father Abdelmalek then continued his evidence. After being taken to his witness statement, he said that Mr Fahmy talked about money and holidays on more than one occasion. When pressed about the dates, and having been referred further to his statement, Father Abdelmalek said that that topic was raised in a telephone conversation he had with Mr Fahmy a couple of days after they had met at the restaurant. Father Abdelmalek said that, from the beginning, the appellant refused each such offer.
At the time of the trial, Father Mina Rizkalla was unwell, and he was unable to attend Court. Accordingly, a transcript of the evidence, given by Father Rizkalla at the committal proceeding, was read into evidence.
In 2015, Father Rizkalla was the senior priest at the Archangel Michael and Saint Anthony’s Church in Oakleigh. Mr Fahmy was a member of that church, but he only attended it infrequently. In mid-February 2015, Mr Fahmy telephoned Father Rizkalla and said he wanted to meet him. About a week later, he met Mr Fahmy at the church. Mr Fahmy asked Father Rizkalla if he knew the appellant, and Father Rizkalla responded that he did. Mr Fahmy stated that the appellant had some trouble with a patient, that in examining her, he had fondled her, and touched something on her body. Father Rizkalla responded that he knew that the appellant was a very good person and he could not believe it, and that he would speak to the appellant about it. Mr Fahmy then said: ‘The girl needs $100,000 and a business class ticket for a holiday and some sort of psychological help or healing for the rest of her life’. He also said that the female had said that, in the absence of a response within 72 hours, she would go to the police.
On the next day, the appellant was at church as usual. Father Rizkalla spoke to the appellant after the church service had concluded, and told him what Mr Fahmy had told him. The appellant responded that the allegation that the female had made about him was ‘rubbish’, that he had only treated her with respect. He said that if she wanted to go to the police, ‘let her go to the police, I’m not going to pay anything’.
In cross-examination, Father Rizkalla stated that he knew Father Thomas Abdelmalek. He said that Father Abdelmalek had not spoken to him before he had been contacted by Mr Fahmy. He confirmed that it was Mr Fahmy who contacted him, that he had not contacted Mr Fahmy. He stated that he had no doubt that Mr Fahmy had told him that the female needed $100,000 and a business class ticket for a holiday and some sort of psychological help, and that the appellant had 72 hours to comply with that request, or she would go to the police.
In his evidence, Mr Fahmy said that he had known the complainant since 2010, and that they had become good friends. He said that, in mid-December 2014, after he had returned from being away, he received messages from the complainant. When he spoke to the complainant, she said that she needed to talk to him urgently. They arranged to meet in the first week of January 2015, and the complainant came to his work in Carlton. Mr Fahmy said that the complainant told him that she had a big problem with her family doctor. She said that she was a bit ill, and she went to the doctor because of a problem with her abdomen. She said that he started to touch her abdomen, and then, in two seconds, he moved his hands up her body, pushed her bra up, and put both his hands on her breast. She said that the doctor was trying to touch her breasts with his lips. While that was happening, the doctor told the complainant: ‘You are beautiful’. He then stopped and said that he was sorry.
The complainant told Mr Fahmy that she had contacted the police or another doctor. She then told him that the doctor was the appellant. She said that the appellant had been sending messages, apologising to her. She also told Mr Fahmy that she had spoken to a priest, Father Abdelmalek, who she subsequently met at a café. She said that Father Abdelmalek was defending the doctor most of the time. The complainant also told Mr Fahmy that the priest said: ‘The doctor can help you financially, and he can help you psychologically and the church will help you spiritually’. Father Abdelmalek asked her: ‘What you’re going to benefit if the whole thing goes outside… our circle?’.
The complainant told Mr Fahmy that she did not want to speak to Father Abdelmalek again, and she asked Mr Fahmy to contact him, which he did. They arranged to meet at Father Abdelmalek’s church in St Albans. Father Abdelmalek told Mr Fahmy that there was a problem, and that the doctor had asked him to intervene in the problem. He said that the doctor was not a bad person, but he had committed a mistake. Father Abdelmalek said: ‘… we’re trying to solve it for him, talk to the girl and … [the] doctor can help her financially and also if she needs any medical examination or medical support he would help her’. Father Abdelmalek also said to Mr Fahmy that he should calm the complainant down, that she would not benefit anything if it became public. Mr Fahmy denied that it was he who raised the issue of money during the meeting. He said most of the time, he was listening to Father Abdelmalek.
At the conclusion of that meeting, Mr Fahmy told the complainant what had happened. She was confused and did not know what to say. They discussed the offer that Father Abdelmalek had made, but it never came to the point that they would accept it. She was concerned what would happen if the matter became public. Mr Fahmy suggested to her that the appellant should apologise to her personally, but she responded that she did not want to see him. Mr Fahmy and the complainant talked about the matter, and they came up with four points, namely, money, holidays, medical assistance and an apology. He said that the amount of money was $100,000.
Mr Fahmy then returned to Father Abdelmalek and told him about the matter. Father Abdelmalek said that he would speak to the appellant and get back to Mr Fahmy at his restaurant. Subsequently, Father Abdelmalek returned to the restaurant with a man who he introduced as his father. Father Abdelmalek gave Mr Fahmy a telephone and said that the appellant wanted to speak to him. Mr Fahmy then spoke to the appellant. The appellant said the problem had three dimensions, number one is a problem with the girl, the second is a problem with the Medical Board, and the third is a problem with the police. He said if one of them is solved, it would not mean it would be finalised. He told him that Father Abdelmalek needed to go, and Mr Fahmy gave the appellant his telephone number.
Mr Fahmy told Father Abdelmalek the details of the discussion that he had had with the appellant. The appellant then telephoned back and arranged to see Mr Fahmy at 10.00pm at the restaurant. When the appellant attended, he said that he was the family doctor of the complainant’s family, and that he was always helping her and listening to her problems. He then said: ‘The mistake was out of my character, yes, I have touched her breast and I’m waking up to myself suddenly, and I told her, “My apology, I’m sorry”, and I give her a kiss on her head … forehead’.
In the course of that conversation, the appellant asked him which church he attended, and Mr Fahmy told him that he went to the Oakleigh church and he trusted Father Mina Rizkalla.
Subsequently, on 17 January 2015, Mr Fahmy received a telephone call from Father Rizkalla. When Mr Fahmy confirmed that he would be attending church for a particular festival, Father Rizkalla asked him to see him as soon as he arrived. Accordingly, when Mr Fahmy attended the church, he spoke with Father Rizkalla in a small room at the church. Father Rizkalla said: ‘There is a problem with Dr Ashraf (the appellant), and I believe that and I’m sure that God has sent you to this problem to solve it’. Father Rizkalla drew up a list of names that he should say in his prayers. Mr Fahmy responded that he was not a mediator, but that he was supporting the complainant because she did not have any other support. Mr Fahmy did not say anything to Father Rizkalla about the four points, namely, the money, the holiday, the apology and the medical treatment. He said that nothing was said about the problem involving the complainant.
On the same evening, after the service had concluded, Father Abdelmalek telephoned Mr Fahmy. Father Abdelmalek asked Mr Fahmy what Father Rizkalla had told him. Mr Fahmy said that he did not know what to do in the matter, with different people contacting him, so he decided to give the matter back to the complainant. Subsequently, Father Abdelmalek tried to telephone him, but Mr Fahmy did not respond.
Mr Fahmy was then cross-examined by counsel for the appellant. The cross-examination was extensive, occupying almost a whole day of the trial. The tenor of the cross-examination was set by the first half dozen questions, in which it was suggested that the complainant and he had discussed a way in which to extract $100,000 out of the appellant, that they had told Father Abdelmalek, Father Rizkalla and the appellant that they wanted $100,000, and, in about mid-January 2015, Mr Fahmy had given up because he was frustrated in his attempts to get that sum of money out of the appellant. Counsel then put to Mr Fahmy, directly: ‘You are lying on oath aren’t you?’.
The cross-examination then proceeded, at length, along the same lines. It was put to Mr Fahmy that, in the first witness statement that he made to the police, he did not include in it that he had made, on behalf of the complainant, a request for the four items, including the payment of $100,000 and a paid holiday. Counsel put to Mr Fahmy that he had conspired with the complainant to blackmail the appellant. A little further on in the cross-examination, counsel put to Mr Fahmy that he had decided to take the opportunity to speak to Father Abdelmalek because he saw it as a ‘money-making opportunity’. In the course of that questioning, counsel also put to Mr Fahmy that he was going to get part of the $100,000 that was under discussion.
In the same vein, counsel cross-examined Mr Fahmy as to the origins of the four points that were put to Father Abdelmalek, namely, the payment of $100,000, the holiday, the medical assistance and the apology. In the course of that cross-examination, Mr Fahmy reiterated that the idea of the payment of $100,000 originated from Father Abdelmalek. Further on in the cross-examination, counsel questioned Mr Fahmy again concerning the four points. Mr Fahmy stated that he did tell Father Abdelmalek of those matters, but he said that it was Father Abdelmalek who originally offered the sum of $100,000.
The cross-examination concluded with counsel putting to the witness that he had reached an agreement with the complainant that neither of them would tell the police that the complainant and he had agreed to tell Father Abdelmalek that the complainant would accept $100,000 and a holiday. Mr Fahmy rejected that suggestion. Counsel put to Mr Fahmy that he and the complainant had entered into a conspiracy, which was why they he did not tell the police about the $100,000. He again put to Mr Fahmy that: ‘This is just an attempt to make money’.
Grounds of appeal – absence of objection by trial counsel
Before turning to the individual grounds of appeal, it is important to note that none of the matters, raised by any of the grounds, were the subject of any objection, or submission, by counsel then acting for the appellant. At the trial, the appellant was represented by very experienced senior counsel and, for most of the trial (but not for the concluding stages, including final addresses), by an experienced junior counsel. In that context, the absence of any objection, or even comment or discussion, at trial in relation to the matters that are now the subject of appeal, is significant.
In recent times, and particularly since the commencement of the Jury Directions Act 2015, this Court has, repeatedly, emphasised that it is the role of trial counsel to determine, in the context of the particular trial, whether a particular matter ought to be the subject of objection or submission to the trial judge. That principle, which stems from the fundamental nature of the role of counsel, is well-known and well understood. Accordingly, where a ground of appeal is relied on, which was not the subject of any objection or argument at trial, it may ordinarily be inferred that trial counsel made a forensic judgment, based on the atmosphere and context of the trial, that the particular matter was not detrimental to the interests of the accused at trial, and did not infringe, or adversely effect, the right of that accused to a fair trial.[1]
[1]See R v Luhan [2009] VSCA 30 [37]; R v Momcilovic (2010) 25 VR 436, 479–80 [160]–[163]; MB v The Queen [2012] VSCA 248 [25], [33] (Beach JA), [41] (Maxwell P); NJ v The Queen [2012] VSCA 256 [43]–[47] (T Forrest AJA, with Maxwell P and Harper JA agreeing); Cavanagh v The Queen [2016] VSCA 305 [100]–[102] (Osborn, Whelan and Priest JJA); Arico v The Queen [2018] VSCA 135, [131]–[144] (Maxwell ACJ, Weinberg and Priest JJA) (‘Arico’).
In a case, such as the present one, in which the appellant was represented at trial by experienced counsel, that inference is of particular weight. While this Court has read and examined the transcript of the trial and the exhibits, it is not ordinarily in the same position as trial counsel and the trial judge to fully appreciate the atmosphere and context in which matters, that are the subject of the appeal, emerged and were dealt with.
Bearing in mind those principles, we now turn to the grounds of appeal. We shall commence by considering ground 5, which was the principal ground of appeal pressed during oral argument.
Ground 5: the prosecutor’s address
Ground 5 is based on the proposition that, although the prosecutor declined to seek leave to cross-examine Father Abdelmalek on the basis of his bias and partiality, nevertheless, during his final address, the prosecutor advanced an argument that the witness was biased and partial to the appellant’s interests.
The prosecutor commenced his address to the jury by submitting that the complainant was a credible and truthful witness. He referred to her evidence, of her visit to the appellant’s surgery, and to the text message that she sent to the appellant on the same evening. The prosecutor noted that that message was ‘clearly not about money’, notwithstanding that the defence had asserted that she was ‘motivated by some windfall’. The prosecutor then turned to the evidence of Father Abdelmalek. He stated:
Now, there was a problem I think that was referred to with Father Abdelmalek, and that problem was a serious problem for the accused man, and that’s why he engaged Father Abdelmalek to assist with the problem. And I’ll come back to the details of it that the good Father in that recorded conversation with the complainant when they met seemed to be in the dark about what the problem was. It’s incredible. Might think it’s unbelievable, test it.
But he’s a religious man. But he was also close friends and a patient of the accused. The accused had been his doctor for many years. So the complainant asserted that she felt he was going in to bat for the doctor. Wasn’t there to help her solve any problem and that assertion by him that he didn’t know the particulars or in a general sense what was alleged, it’s not believable.
I’ll just say something to you. The prosecution has an obligation and a duty to call all relevant witnesses in cases. We call Father Rizkalla, we call Father Abdelmalek, we call Fahmy. Called the complainant of course. Doesn’t mean we have to accept everything that these witnesses say. But it’s your important task to sort it all out. But query the impartiality of Father Abdelmalek. Even someone with the best of motives, if you’ve got a long-term friend, you might not be acting as fairly or justly as might be expected with other people.
Counsel then referred to the recorded conversation between Father Abdelmalek and the complainant, the recording of which was tendered in evidence. He contended that the recording supported the genuineness of the complainant’s allegation, and noted: ‘… but the defence will have you believe that (the complainant) and Hany (Fahmy) engaged in some sort of conspiracy to blackmail Dr Saddik’. The prosecutor contended that, if that were the case, then why did the appellant not go to the police and report the blackmail that was being perpetrated on him? The prosecutor contended that there was only ‘one answer’ to the issue of blackmail, namely, that the accused well knew that he had indecently assaulted the complainant, and there was no blackmail attempt, but rather, it was an attempt ‘… initiated by Dr Saddik of people he knew to resolve the matter and to not involve the authorities’. It was an attempt to ‘keep it in the circle’, which was something that Father Abdelmalek had said on the tape.
Having made those submissions, the prosecutor returned to the question of the credibility of the complainant. He referred to the clinical notes, and, in particular, to the addition that the accused made to them on the evening of 10 November 2014. The prosecutor noted that it was not necessary for the defence to suggest a motive for the complainant to fabricate her evidence. However, as the defence had done so, the jury should ask why the complainant would suddenly target the appellant ‘out of the blue’.
The prosecutor returned to the text message sent by the complainant to the appellant on the evening of 10 November. He again noted that the message did not mention anything about money or the like. The prosecutor contended that, after that text, the appellant went into ‘overdrive’, making a number of telephone calls on that day and the next day. He referred to the telephone call records that noted calls made between Father Rizkalla and the appellant on 13 November, and he reminded the jury that Father Rizkalla was the priest at the church that the appellant attended.
The prosecutor turned to the question of the delay, by the complainant, in making her statement to the police, contending that it was understandable that the complainant was in a confused and complex situation. He then returned to the topic of Father Abdelmalek, stating:
The next event that happens after this text messaging to Dr Saddik, the attempts by him to contact her unsuccessfully, we have Father Abdelmalek enters the picture. A patient of the doctor’s. The Father’s take on it, his evidence of this involvement is “Well, I was in the surgery and the good doctor was looking a bit out of it and I queried what’s going on” and that’s how he got involved.
It’s incredible to believe it happened that way, especially when you look at the phone records. (The prosecutor then referred to the telephone records). So I’d ask you really to come to the view that the accused has been talking to Father Rizkalla, and they’ve both talked to Father Abdelmalek and that’s how he got the guernsey to come in. He had some knowledge or expertise with the Sudanese community at Melton, he tells you, so he was the go-to man about that issue.
It’s a matter for you, but just because someone is a priest or wears priestly clothing doesn’t mean that they’re immune from other human frailties, but the reality is the accused … didn’t go to the police – the accused engaged Father Abdelmalek … and there was a problem that had to be resolved, his problem, calling on a friend to assist.
The prosecutor then referred to the complainant’s evidence that she did not know Father Abdelmalek at all, and she recorded the conversation she had with him. The prosecutor continued as follows:
It’s a recording you’ll obviously replay and re-read, but the incredible part of it, as I said earlier, is when he’s talking about the problem, the complainant’s asking, “Well I’m surprised that you’re not telling me what he said to you. He’s already told you the problem, he’s already told you what he’s done to me” and then his assertion is “No I don’t know what the problem is. I’m just here as a man of God to resolve it”. It doesn’t make sense. It doesn’t pass the pub test, does it? On any level. Especially when you know that the contact over many years as patient, I suppose cultural, religious affiliations. …
You may accept my view on it, you might think there’s nothing in it but it’s clearly an attempt to manipulate this woman, we say, to not take it any further. That’s a problem this man had, Dr Saddik, and he enlisted the support and help of others to overcome that problem.
The prosecutor pointed out that the transcript of the conversation revealed the complainant’s turmoil and difficulty in the circumstances. He continued:
And I’m sure the defence will want to pick the bones of it and say, “Well she raises this issue of compensation”. The first thing to say … is she produces this document, you might think, that doesn’t help her on some levels because she clearly says at one stage how is she going to be compensated. … I’d ask you not to attach too much weight to it, really, because the approach is made by Father Abdelmalek. He’s the middleman that’s been assigned the task of helping Dr Saddik and he’s … a fair reading of this conversation suggests he’s being a bit cagey on many levels.
The prosecutor referred to the telephone calls on the call charts. He then told the jury as follows:
The drivers, the people that are orchestrating the settlement, are really Dr Saddik’s people. There’s Father Abdelmalek and Father Rizkalla seems to have a lot of phone contact with Father Abdelmalek and Dr Saddik in those calls. … But they’re the drivers, they’re the ones that made the approach to the complainant. And Mr Fahmy, he’s been painted as some gun for hire, middleman on commission. Again I’d ask you to take the view that he was simply helping the complainant.
Submissions on ground 5
On this appeal, counsel for the appellant submitted that, in the foregoing passages from the prosecutor’s final address, the prosecutor impermissibly alleged that Father Abdelmalek was biased as a witness, in order to impugn his credibility. Counsel noted that, in the course of seeking leave to cross-examine Father Abdelmalek about the contents of a previous statement made by him, the prosecutor had foreshadowed that he might seek also to cross-examine the witness on the basis of bias, but he did not persist in that application. The judge, at that stage, warned the prosecutor that, if he sought to allege bias, then he might need to make a further application to cross-examine the witness under s 38 of the Evidence Act. Notwithstanding that warning by the judge, the prosecutor refrained from making any application to further cross-examine Father Abdelmalek in relation to that matter.
Yet, it was contended, in his final address, the prosecutor launched a full-scale attack on the credibility of Father Abdelmalek, alleging that his evidence was infected with bias. In particular, the prosecutor submitted: that Father Abdelmalek’s evidence was incredible and unbelievable; that due to his friendship with the appellant, he was not impartial; that, as a result, he might not have been acting as justly and fairly as might be expected; that, although he was a priest, he was not immune from other human frailties; that his evidence did not make sense or ‘pass the pub test’, particularly when the jury knew of his contact with the appellant over many years; that Father Abdelmalek had attempted to manipulate the complainant so that she would not take the matter any further; that Father Abdelmalek was a middleman who had been assigned with the task of helping the appellant with a problem that had to be resolved; that it was Father Abdelmalek who was driving the settlement negotiations with the complainant and Mr Fahmy; and it was Father Abdelmalek who made the approach to the complainant about a financial statement.
Counsel submitted that the combined effect of those propositions were tantamount not only to an allegation of bias, but also constituted an allegation that Father Abdelmalek had been involved in a conspiracy with the appellant to attempt to pervert the course of justice.
In addition, it was submitted, the prosecutor’s attack on Father Abdelmalek’s credit was based on propositions that were not supported by the evidence. In particular, the prosecutor alleged that the appellant had approached Father Abdelmalek to assist him to resolve the problem arising out of his conduct with the complainant, and that proposition was unsupported by the evidence of Father Abdelmalek as to how he had become involved in the issue. Further, the prosecutor, erroneously, alleged that the appellant had been talking to Father Rizkalla, and that the two of them had procured Father Abdelmalek to become involved in the issue. Counsel noted that that proposition was contrary to the evidence of Father Rizkalla, and was not the subject of any questions asked by the prosecutor of Father Abdelmalek.
Counsel for the appellant noted that the issue, whether the complainant had a motive to lie in order to obtain payment of a large sum of money from the appellant, was a central issue in the trial. Father Abdelmalek was an important witness in relation to that issue. In her final address, senior counsel for the appellant contended that the complainant had told ten lies, each of which was concerned with the communications and conversations, in the course of which the defence alleged that the complainant had sought to extract a financial benefit for herself from the appellant by way of blackmailing him. In that way, the matters, that were the subject of the prosecutor’s final address, were critical to the credibility of the complainant, Father Abdelmalek and Mr Fahmy, which, in turn, was relevant to the jury’s assessment of other evidence, including the evidence of Mr Fahmy as to the admissions that he said the appellant had made to him.
Counsel for the appellant referred to a number of decisions in the New South Wales Court of Criminal Appeal, including R v Livermore,[2] MRW v The Queen,[3] Kennedy v The Queen,[4] and R v Teasdale[5] in support of the submission that conduct of the prosecutor, such as that engaged in in this case, has such a capacity to substantially impact on the fairness of a trial, that the absence of objection by defence counsel cannot cure the defect, or obstruct a conclusion that there has been a substantial miscarriage of justice.
[2](2006) 67 NSWLR 659 (‘Livermore’).
[3](1999) 113 A Crim R 308 (‘MRW’).
[4](2000) 118 A Crim R 34 (‘Kennedy’).
[5](2004) 145 A Crim R 345 (‘Teasdale’).
In response, counsel for the respondent accepted that the prosecutor, in his final address, had impermissibly overreached in some of the respects contended for by counsel for the appellant. In particular, counsel accepted that the prosecutor had acted inappropriately by submitting that Father Abdelmalek’s evidence did not make sense or ‘pass the pub test’, in suggesting that Father Abdelmalek had attempted to manipulate the complainant to deflect her from taking the matter any further with the police, and in contending that Father Abdelmalek was the middleman who had been assigned, by the appellant, with the task of helping the appellant with a problem that had to be resolved. However, counsel for the respondent submitted that, in the circumstances of the case, there was no substantial miscarriage of justice arising out of those submissions advanced on behalf of the prosecution at trial.
In particular, Counsel for the respondent noted that the jury had the advantage of a copy of the recording of the conversation between the complainant and Father Abdelmalek at the restaurant, and a transcript of that recording. That evidence strongly supported the credibility of Father Abdelmalek, and adversely affected the credibility of the complainant in respect of her version of their conversation at the restaurant. Counsel pointed out that Father Abdelmalek’s evidence was consistent with the transcript of the conversation. Thus, it was contended, the submissions made by the prosecutor, impugning his credit, could not have wounded or damaged his credibility. Counsel further submitted that counsel for the accused, in her final address, had effectively refuted the submissions made by the prosecutor, first, that Father Rizkalla had engaged Father Abdelmalek to act on behalf of the appellant, and, secondly, that Father Abdelmalek had become involved as a result of some design on behalf of the appellant. Counsel at trial had, correctly, pointed out to the jury that the first proposition was entirely unsupported by the evidence, and that the second proposition was directly contrary to the uncontested evidence of Father Abdelmalek.
Counsel for the respondent contended that it is significant that senior counsel for the appellant, at trial, did not object to, or raise any issues with the judge about, the matters contained in the final address of the prosecutor that are the subject of ground 5 of the appeal. He contended that counsel for the appellant, at trial, did not do so because she had been able to seize on the flaws that were contained in those submissions, and exploit them, as part of her final address.
Counsel for the respondent further submitted that the critical issue in the trial was whether the jury was satisfied, beyond reasonable doubt, as to the complainant’s evidence as to the two indecent assaults, that she alleged were committed on her, in the appellant’s surgery on 10 November 2014. The central evidence relating to that issue was the evidence of the complainant, the text message that she subsequently sent to the appellant, Mr Fahmy’s evidence as to the admission made to him by the appellant, and the alleged post-offence conduct, comprising the additions that the respondent made to his medical records. In that context, it was submitted, the issue of the complainant’s motive to lie was not a central question in the trial, notwithstanding that it did occupy a substantial part of the trial. In those circumstances, it was submitted, the particular passages in the final address of the prosecutor, which were inappropriate, did not result in a substantial miscarriage of justice.
In considering the competing submissions concerning ground 5, two propositions can be readily accepted. First, the prosecutor, in his final address, made submissions that directly impugned the credibility of Father Abdelmalek and Father Rizkalla, and the evidence that they gave at the trial. Secondly, the prosecutor, being minded to make those submissions, was entitled to, and should have, made an application to the judge to cross-examine Father Abdelmalek on those aspects of the evidence that were unfavourable to the case of the prosecution, pursuant to s 38 of the Evidence Act. The critical issue, to which we shall return, is whether the prosecutor, by making those submissions, without first seeking to cross-examine Father Abdelmalek, undermined the fairness of the trial such as to give rise to a substantial miscarriage of justice in the case.
It is well-established that the prosecution does not warrant the truthfulness of its witnesses. Accordingly, the prosecution is not obliged to accept the evidence given by any particular witness called by it.[6] That is because the prosecution has the obligation to present its case in conformity with the requirements of fairness to an accused person, and, as such, is ordinarily required to call all relevant witnesses in the trial, unless there is a good objective reason for not doing so.[7] Consequently, a prosecutor is entitled to invite a jury to accept the evidence of one particular witness in preference to another. In an appropriate case, a prosecutor may be entitled to put to the jury that the prosecution does not put forward a particular witness as a witness of truth, provided that the prosecutor has an appropriate basis for such a submission. In particular, the prosecutor may be able to rely on circumstances such as an internal inconsistency within the evidence of a particular witness, or on the fact that the witness’s evidence is contradicted by other evidence in the case, or on the fact that the witness’s evidence is inherently improbable.
[6]R v Le (2002) 54 NSWLR 474, 486–7 [68] (Heydon JA); R v White (2003) 140 A Crim R 63 [65]–[68].
[7]Richardson v The Queen (1974) 131 CLR 116, 119; Kanaan v The Queen [2006] NSWCCA 109 (‘Kanaan’) [80]–[81] (Hunt AJA, Buddin and Hoeben JJ).
In the present case, the prosecutor did, in evidence-in-chief, ask Father Abdelmalek how he could go from seeing the appellant, without knowing what the problem was, and then meeting with the complainant and getting her side of it. However, he did not press that issue any further, and he certainly did not provide Father Abdelmalek with the opportunity to respond to the proposition, forcefully advanced in final address, that he was not telling the truth in that part of his evidence. On a plain reading of portions of the final address, the prosecutor went much further than advancing the proposition that the jury should not accept that aspect of the evidence of Father Abdelmalek. Rather, the prosecutor embarked on a significant attack on the credibility and integrity of Father Abdelmalek, and also impugned the evidence of Father Rizkalla in the same way, without having given Father Abdelmalek the opportunity to respond to the propositions advanced by the prosecutor to the jury.
As noted, the prosecutor commenced by contending that the evidence of Father Abdelmalek, that he did not know the details of the problem, was ‘incredible’, and ‘unbelievable’. The prosecutor suggested that Father Abdelmalek was biased in favour of the appellant, because he was a close friend and patient of the appellant. Having planted that seed in the mind of the jury, he later returned to the same topic. He sought, in strong terms, to persuade the jury not to accept Father Abdelmalek’s evidence as to how he had learnt of the problem mentioned to him by the appellant. In that way, he asked the jury to reject that aspect of Father Abdelmalek’s evidence, in circumstances where there was no evidence to the contrary.
The contention thus advanced by the prosecutor was not confined to an attack on the credibility of Father Abdelmalek. By forcefully challenging Father Abdelmalek’s evidence, that he did not know what the problem was when he spoke to the complainant, the prosecutor sought to convey to the jury that Father Abdelmalek did know what the problem was, but he was not prepared to disclose it in his evidence. The suggestion, that Father Abdelmalek was concealing what he had been told by the appellant, was, in the circumstances, calculated to suggest to the jury that Father Abdelmalek knew that what the appellant had told him was detrimental to the case of the appellant, and that, accordingly, he was not prepared to reveal it in his evidence.
The prosecutor then went further, and invited the jury to come to the view that the appellant had been talking to Father Rizkalla, and that they had both recruited Father Abdelmalek to intervene, because he had some knowledge of or expertise with the Sudanese community at Melton. That proposition was plainly contrary to the uncontradicted evidence of Father Rizkalla, that he first became involved in the matter in mid-February 2015, when Mr Fahmy contacted him. It was also plainly contrary to the evidence of Father Abdelmalek, and no questions were put to Father Abdelmalek by the prosecutor as to whether he had had any contact with Father Rizkalla before speaking to the appellant.
The proposition, advanced by the prosecutor at this point, sought to portray some kind of joint collusion between the appellant, Father Rizkalla and Father Abdelmalek to deflect the complainant from proceeding with her complaint to the police. In that way, the prosecutor sought to put a sinister texture to Father Abdelmalek’s involvement, noting that, although he was a priest, it did not mean that he was ‘immune from other human frailties’. Having thus assailed the integrity of Father Abdelmalek, the prosecutor returned to the topic that he had started with, contending that ‘an incredible part of it’ was that Father Abdelmalek did not know what the problem was, and maintaining, in quite persuasive colloquial terms, that that proposition ‘doesn’t pass the pub test’.
Father Abdelmalek was an important witness in the trial for two related reasons. First, it was part of the prosecution case, advanced through the evidence of the complainant, that the appellant had engaged the services of Father Abdelmalek (and Father Rizkalla) to dissuade the complainant from persisting in her complaint to the police. Secondly, and connected with that, Father Abdelmalek provided evidentiary support for the proposition, advanced on behalf of the appellant, that the complainant had a motive to concoct the allegations that she had made against him to the police.
In those circumstances, it is clear that the evidence given by Father Abdelmalek would be considered to be ‘unfavourable’ for the purposes of s 38(1)(a) of the Evidence Act 2008. There is a substantial body of authority, comprising a number of decisions in New South Wales, that the word ‘unfavourable’, in s 38(1), should be construed to mean ‘not favourable’.[8] In Director of Public Prosecutions (Vic) v Garrett,[9] this Court adopted and applied those decisions as determining the correct construction of ‘unfavourable’ in s 38(1)(a).[10]
[8]See, for example, R v Souleyman (1996) 40 NSWLR 712, 715 (Smart J); R v Fowler [2000] NSWCCA 142 [121] (Wood CJ at CL); Kanaan [2006] NSWCCA 109 [83] (Hunt AJA, Buddin and Hoeben JJ); R v Adam (1999) 47 NSWLR 267, 277 [99].
[9](2016) 257 A Crim R 509.
[10]Ibid [66]–[67] (Maxwell P, Redlich and Beach JJA).
In a case in which leave to cross-examine a witness is granted under s 38(1)(a), the permitted cross-examination is not at large, but, rather, is confined to cross-examination of the witness on the aspects of evidence given by the witness that are unfavourable. However, s 38(3) provides that the cross-examiner may, with leave, also question the witness about matters that are relevant only to the witness’s credibility. In R v Le,[11] Heydon JA stated the principles, relating to such cross-examination, in the following terms:
In my opinion, on the true construction of s 38, leave may be granted under s 38 to conduct questioning not only if the questioning is specifically directed to one of the three subjects described in s 38(1), but also if it is directed to establishing the probability of the factual state of affairs in relation to those subjects contended for by the party conducting the questioning or the improbability of the witness’s evidence on those subjects. In establishing the probability or improbability of one or other state of affairs, the questioner is entitled to ask questions about matters going only to credibility with a view to shaking the witness’s credibility on the s 38(1) subjects.[12]
[11](2002) 54 NSWLR 474.
[12]Ibid 486 [67]; R v White (2003) 140 A Crim R 63 [66]–[68]; Doyle v The Queen [2014] NSWCCA 4 [293]–[294] (Bathurst CJ); Kanaan [2006] NSWCCA 109 [83] (Hunt AJA, Buddin and Hoeben JJ); Meyer v The Queen [2018] VSCA 140 (‘Meyer’) [182] (Priest and Kaye JJA).
Cross-examination of a witness, called by a party, is by leave, pursuant to s 38(1) of the Evidence Act. In considering whether to grant leave, the Court is required to consider the matters prescribed in s 38(6), and also in s 192 of the Evidence Act. The principles, that ordinarily apply to the grant of such leave, were recently considered by this Court in Meyer.[13] They have also been discussed in a number of New South Wales decisions, including Burrell v The Queen[14] and R v Parkes.[15] A central consideration is whether the grant of leave would be unfair to a party or to the particular witness under s 192(2)(c). In considering whether to grant leave, it is important to guard against the misuse of s 38 as an unfair tactical or forensic device.
[13][2018] VSCA 140 [182] (Priest and Kaye JJA).
[14][2007] 180 A Crim R 148, 205 [234]–[235] (McClellan CJ at CL).
[15](2003) 147 A Crim R 450, 462–3 [72]–[76] (Ipp JA).
In the present case, as mentioned, the evidence given by Father Abdelmalek was clearly unfavourable to the prosecution. The issue, to which Father Abdelmalek’s evidence was directed, was relevant in the trial, and, in particular, to the matters raised in the cross-examination of the complainant, as to her alleged motive to lie. It was not suggested, on this appeal, nor do we apprehend, that it would have been unfair to any party, or to the witness, had the prosecutor been granted leave to cross-examine Father Abdelmalek. Further, it could not be maintained that such an application, by the prosecutor, would have constituted some unfair tactical or forensic device.
In those circumstances, if the prosecutor had been minded to do so, he had a strong basis upon which to apply to cross-examine Father Abdelmalek in relation to the matters asserted by him in his final address. In that context, it is significant that when the prosecutor, in the course of Father Abdelmalek’s evidence, raised with the judge the question of Father Abdelmalek’s ‘potential bias’, the judge, correctly, reminded the prosecutor that he might need to make an application to cross-examine the witness on that basis. Notwithstanding that warning by the judge, the prosecutor refrained from making any further application to cross-examine Father Abdelmalek.
It is a fundamental aspect of our criminal justice system that a prosecutor, occupying the role as a ‘minister of justice’, has an obligation to present the case of the prosecution in accordance with the dictates of fairness to the accused.[16] The submissions made by the prosecutor, that are the subject of ground 5, were in clear breach of that fundamental duty. They were unfair to Father Abdelmalek, and, in addition, to Father Rizkalla. Matters were put to the jury by the prosecutor which seriously impugned the integrity and credibility of Father Abdelmalek, and also Father Rizkalla, without Father Abdelmalek being given the opportunity to respond to those matters.
[16]R v Apostilides (1984) 154 CLR 563, 576–7; Richardson v The Queen (1974) 131 CLR 116, 119; R v Puddick (1865) 4 F. & F. 497, 499; 176 ER 662, 663; Kanaan [2006] NSWCCA 109 [80]; R v Bazley (1986) 21 A Crim R 19, 29 (Young CJ); Meyer [258] (Priest and Kaye JJA).
More significantly, that unfairness, to Father Abdelmalek, redounded to the disadvantage of the appellant in respect of the issues that were at large in the trial. The prosecutor’s submissions were part of his argument that the appellant had engaged Father Abdelmalek, and Father Rizkalla, to act on his behalf, in their guise as spiritual leaders of the community, in order to induce the complainant not to take the complaint any further. The credibility of Father Abdelmalek, and, indeed, Father Rizkalla, was important to the rebuttal of that proposition. In addition, it was important to the counter-proposition advanced on behalf of the appellant at trial, namely, that the complainant had a material motive to fabricate her allegations against the appellant.
In that way, the conclusion is irresistible that the conduct of the prosecutor constituted an irregularity in the conduct of the trial. Indeed, counsel for the respondent did not submit to the contrary. Rather, the critical question, on this appeal, is whether, as a result of that irregularity, there has been a substantial miscarriage of justice, pursuant to s 276(1)(b) of the Criminal Procedure Act 2009.
As we have mentioned earlier, counsel for the appellant referred the Court to four decisions of the Court of Criminal Appeal of New South Wales in which, he submitted, similar conduct by the prosecutor at trial had been held to constitute a miscarriage of justice by reason of which the trial miscarried. An examination of those decisions is of assistance to the determination of that issue in this appeal.
In Teasdale, the appellant, who was an off-duty policeman, was alleged to have thrown a glass at one Eggins at a hotel in Hamilton. The prosecution called a number of witnesses, including nine off-duty police members. The non-police witnesses all saw the glass being thrown, but only one of them was able to identify the appellant as the miscreant. None of the off-duty police saw who threw the glass at Eggins. The prosecutor did not make an application to cross-examine any of those witnesses, pursuant to s 38 of the Evidence Act. In his final address, he alleged that there was a conspiracy of silence between the off-duty police witnesses to protect the appellant because he was guilty of the offence charged. He noted that all the other civilians, who had seen the glass being thrown, had the ‘benefit’ of never having been ‘to the Goulburn Academy for 12 months’. He observed that the off-duty police seemed to have a ‘unique ability to witness assaults on fellow police but don’t seem to be able to witness assaults on anybody else’. Defence counsel did not raise any objection to that aspect of the prosecutor’s address.
On appeal, the New South Wales Court of Criminal Appeal expressed the view that the prosecutor’s conduct, in making that address, was such as to ‘require this Court’s most severe disapproval’.[17] The Court considered that the trial judge ought to have given a direction to the jury to have disregarded that aspect of the prosecutor’s address.[18] Notwithstanding the failure of the appellant’s counsel at trial to object to the prosecutor’s address, the Court nevertheless concluded that the conduct of the prosecutor was such that leave to appeal should be granted and the ground of appeal upheld.[19]
[17]Teasdale (2004) 145 A Crim R 345, 350 [23].
[18]Ibid 351 [26]–[28].
[19]Ibid 352 [30].
In Kennedy, the appellant was convicted of two sexual offences, in which it was alleged that he had had sexual intercourse with the complainant without her consent on two occasions. In his final address, the Crown prosecutor asserted that the complainant’s mother, in her evidence, had endeavoured to protect the appellant, and was doing her best to look after his interests. The prosecutor had not put any questions to that witness to give her the opportunity to answer that suggestion, nor did he seek to cross-examine her under s 38 of the Evidence Act. Studdert J (with whom Heydon JA and Greg James J agreed) held that the address by the prosecutor had departed from the fair and proper presentation of the prosecution case. In particular, the jury may well have been influenced by the prosecution’s submissions to reject evidence given by the complainant’s mother that was favourable to the appellant’s case in a number of aspects. Although counsel for the appellant had not sought a direction from the trial judge, nevertheless, the Court held that what had occurred amounted to a serious irregularity, so that the ground of appeal was established.[20]
[20]Kennedy (2000) 118 A Crim R 34 , 41–42 [37]–[40].
In MRW, the appellant was convicted of one count of indecent assault of a girl under the age of 16 years. On the complainant’s account, the incidents, which gave rise to the charge, occurred in the presence of the appellant’s daughter. The prosecution called the appellant’s daughter as a witness, but, after asking her name, address and occupation, did not adduce any evidence from her. In cross-examination, she gave evidence that was materially inconsistent with the account given by the complainant in a number of important respects. In his final address, the prosecutor, forcefully, sought to nullify the daughter’s account. He told the jury that he had not questioned the daughter ‘because he knew that she wasn’t telling the truth’. The prosecutor alleged that the appellant and his daughter had agreed to present joint lies in evidence, notwithstanding that the appellant himself had denied discussing the events with his daughter. James J (with whom Beasley JA and Newman J agreed) held that, notwithstanding that defence counsel at trial did not seek a direction from the judge, the contents of the prosecutor’s address resulted in a miscarriage of justice, so that the appeal should be allowed. James J described the conduct of the prosecutor as ‘completely indefensible’.[21] He stated:
... I consider that this address and the course of conduct regarding this witness was so unfair and the directions so inadequate to deal with that unfairness that, in my view, the trial was fundamentally flawed. The Crown’s submissions that his Honour inadequately directed the jury on the witness’s evidence must be rejected.
…
I am of the view that there was a serious irregularity in the conduct of the trial and his Honour’s directions were entirely inadequate to deal with it. His Honour did not administer the appropriate antidote.[22]
[21]MRW (1999) 113 A Crim R 308, 316–17 [38].
[22]Ibid 317–18 [44], [50].
Finally, in Livermore, the appellant was convicted on three counts of sexual intercourse without consent and one count of assault with an act of indecency. The appellant was a friend of the complainant’s boyfriend ‘Mick’. The complainant alleged that the appellant had gained entry to her flat while her boyfriend was absent, and had non-consensual sexual intercourse with her. While they were doing so, Mick arrived at the premises, and knocked on the door. The complainant said that she was yelling at the time. On the other hand, in his evidence, Mick said that when he arrived at the door and listened, he only heard the complainant say ‘No stop’ in a soft and frightened voice. When he opened the door, and noticed her state, he was angry with her, because he considered that she had betrayed him.
In his final address, the prosecutor attacked the credit of the complainant’s boyfriend, Mick, describing him as an ‘idiot’. He said to the jury:
You can’t hold Mick’s thinking, or apparent lack of thought and compassion, against (the complainant). It is not her fault that he says the things he does.
Having reviewed the authorities, the Court considered that the final address by the prosecutor constituted a breach of the duty of fairness for four reasons, namely, because it was based on material that was not in evidence, because it used intemperate or inflammatory comments that tended to arouse prejudice or emotion in the jury, because it belittled or ridiculed part of the accused’s case, and because it conveyed to the jury the prosecutor’s personal opinions.[23] The Court said:
It was an intemperate attack that was inclined to arouse the jury’s prejudice towards a Crown witness who was integral to the defence case theory. It was also a submission that was designed to ridicule and belittle that case theory. By conveying to the jury in no uncertain terms that counsel representing the interests the community and of the State regarded a witness as a fool to entertain for one moment the thought that the complainant may have had consensual sexual intercourse with the accused, the jury were in effect being told that they were also fools if they were to reach the same conclusion. Such a submission represents a significant departure from the responsibilities and obligations of a Crown prosecutor to persuade a jury of an accused’s guilt by way of balanced and rational argument based upon the evidence in the trial.[24]
[23]Livermore (2006) 67 NSWLR 659, 667 [31]–[33].
[24]Ibid 667–68 [36].
That review of the four New South Wales decisions is instructive, as it illustrates the approach taken by appellate courts to cases such as the present, in which the prosecution has undertaken a substantial attack on the credibility of a witness or witnesses in final address, in circumstances in which the prosecutor should have, but did not, seek leave to cross-examine that witness or those witnesses, in the course of their evidence. In each case, the aspect of the prosecutor’s address, that was impugned on appeal, had the effect of unfairly damaging the case on behalf of the accused person at trial, by undermining a material part of it. As such, in each case, the New South Wales Court of Criminal Appeal was persuaded that the irregularity, thus occasioned by the conduct of the prosecutor, was of sufficient importance to constitute a miscarriage of justice.
Each case, of course, depends on its own particular facts. In the present case, as already discussed, the aspects of the prosecutor’s address, that are the subject of ground 5, had a dual adverse effect on the case of the appellant. In the first place, the prosecutor’s address unfairly undermined the credibility of a witness who, in important respects, supported the case that was advanced on behalf of the appellant, namely, that the complainant had a motive to fabricate the allegations that she made against the appellant. Secondly, the attack made by the prosecutor on the credit of both Father Abdelmalek, and Father Rizkalla, was designed to bolster a case advanced on behalf of the prosecution, namely, that the appellant had recruited Father Abdelmalek and Father Rizkalla in order to extricate himself from the consequences of his conduct with the complainant. That proposition, that was advanced in final address, was tantamount to an allegation on behalf of the prosecution that the conduct of the appellant was part of a strategy, instigated by him, to cover up his criminal actions. As such, the submission bore a close resemblance to an argument that the appellant engaged in post-offence incriminating conduct. In that way, the counter-proposition, advanced in the final address by the prosecutor, had a particular sting for the accused, and, as such, was potentially particularly detrimental to his case.
Counsel for the respondent submitted that the issues, argued by the prosecutor, were not central to the case, but, rather, were collateral issues. He correctly pointed out that the critical issue was whether the jury was satisfied, beyond reasonable doubt, of the evidence of the complainant as to what occurred on 10 November 2014, when she attended upon the appellant’s surgery.
However, that submission overlooks the circumstance that the discussions and communications between Father Abdelmalek, Mr Fahmy and the complainant were not only relevant to, and part of, the case that was presented on behalf of the appellant, but they were also a not insignificant part of the prosecution case. Certainly, the appellant relied on those discussions and communications as evidence of an alleged motive of the complainant to fabricate the allegations that she made against the appellant. However, at the same time, from a very early stage in the trial, the prosecution led evidence concerning those communications and discussions, and relied on them, as evidence of the attempts made by the appellant, through Father Rizkalla and Father Abedelmalek, to divert the complainant from proceeding with her complaint to the police about what had occurred in his surgery on 10 November 2014. Thus, it was the prosecutor who adduced from the complainant, in evidence in chief, detailed evidence of her contacts with Father Abedelmalek and with Mr Fahmy in the period that followed 10 November. The prosecutor also called Mr Fahmy, who did not become involved in the matter until mid-December 2014, and adduced the evidence of Father Rizkalla, who did not become involved in the issue until mid-February 2015.
For those reasons, we reject Ground 3.
Ground 4A
Ground 4A is concerned with the reliance, by the prosecution, on the second notation, made by the appellant, in his medical records at 6.18pm on 10 November 2014. By Ground 4A, it is contended, on behalf of the appellant, that two errors were made in the trial, in respect of the reliance by the prosecution on that notation as evidence of incriminating conduct on behalf of the appellant. First, it is submitted, the judge failed to make a determination, as required by s 20(b) of the Jury Directions Act 2015, that the notation constituted conduct that was reasonably capable of being viewed, by the jury, as evidence of incriminating conduct by the appellant. Secondly, it is submitted that, in any event, the direction given by the judge to the jury, as to that aspect of the evidence, failed to comply with the requirements of s 21 of the Jury Directions Act 2015 and therefore was deficient.
It was common ground that the prosecution gave adequate notice, pursuant to s 19 of the Jury Directions Act, of its intention to rely on the second notation, in the medical records, as evidence of incriminating conduct by the appellant. At the commencement of the trial, the prosecutor submitted to the judge that it was preferable that the question, whether that evidence constituted incriminating conduct, should be deferred until the evidence in the trial was complete. Counsel for the appellant did not demur to that suggestion. At the conclusion of the evidence, there was no detailed discussion as to that matter. However, the defence had prepared a list of directions that it sought from the trial judge. That document was the subject of discussion between the judge and senior counsel for the appellant. Having briefly referred to the alleged admission, made by the appellant to Mr Fahmy, the judge then referred to ‘incriminating conduct’. Senior counsel for the appellant then noted that the prosecution had filed the notice, with respect to the second entry in the appellant’s medical records, at 6.18pm, which was the subject of the cross-examination, that senior counsel had undertaken with the informant (in the course of which Exhibit 3 was tendered). The judge and senior counsel then moved to another matter.
After the completion of that discussion, the prosecutor commenced to make his final address to the jury. In the course of it, he referred to the second notation in the medical records. He contended that the appellant knew that he had done the wrong thing, and that ‘part of the exercise for him was to cover his trail, so he entered another note’. He noted that the first entry was consistent with the complainant’s evidence that she had told the appellant that she suffered epigastric tenderness, and, thus, the second entry was made, because the appellant knew he had done the wrong thing, and needed to cover it up.
As earlier mentioned, senior counsel for the appellant did not take any exception to any aspect of the prosecutor’s address. In her final address to the jury, senior counsel for the appellant sought to rebut the proposition relied on by the prosecution, by referring to the progress notes, contained in Exhibit 3, in which the appellant had made subsequent additions to a number of progress notes during the same month. Counsel submitted to the jury that that exhibit demonstrated that the appellant was a doctor who had the habit to review his notes, and update them to make sure that they were accurate.
At the conclusion of addresses, the judge commenced his charge. He did not complete it on the same day. On the next day, before he recommenced the charge, the judge said to counsel, in the absence of the jury, that there were some matters that he wished to clarify with counsel. He told counsel that, in relation to incriminating conduct, he was going to point out the contents of the notice provided by the prosecution, and then give a charge in accordance with the ‘charge book’. He foreshadowed telling the jury that the prosecution sought to contend that the addition to the notes was evidence of ‘incriminating conduct to show that he had committed the offences charged’. The judge stated that he would direct the jury that it may only use that evidence in that way, if it found the conduct occurred, and the only reasonable explanation of the conduct ‘is that the accused thought that the additional notes would explain his earlier behaviour’.
The judge said that he did not think it was necessary to give a direction under s 22 of the Jury Directions Act. Counsel for the appellant agreed with that proposition, and said, ‘We wouldn’t seek the section 22’. The judge then said the following:
Yes. It seems to me that in light of Exhibit 3, if a jury were to rely upon that as evidence of incriminating conduct, there’d be cause for concern elsewhere. … That was really the only matter I thought I can keep the charge a little bit short. I know incriminating conduct is something I’ve got to say something about but not very much.
Counsel for the appellant then responded, ‘Thank you Your Honour’.
Apart from the exchange between counsel and the judge, to which we have just referred, it would seem quite clear that, before the commencement of final addresses, counsel for the appellant had accepted that the added notation in the appellant’s records could be relied on by the prosecution as evidence of incriminating conduct, and that the judge should give to the jury a direction in relation to that evidence under s 21 of the Jury Directions Act. That conclusion is sufficiently established by reference to the very brief exchange between counsel for the appellant and the judge, before the commencement of final addresses, by the fact that senior counsel for the appellant did not object to the prosecution relying on the notation as evidence of incriminating conduct, and the fact that senior counsel for the appellant then sought to rebut that proposition in final address. It would, therefore, seem clear that, by that stage of the trial, it was common ground that the evidence of the notation was capable of constituting incriminating conduct, pursuant to s 21(1)(b) of the Jury Directions Act.
Certainly, in cases in which a judge might have some reservations as to whether evidence might properly be considered to be incriminating conduct, the judge ought to raise that matter with counsel, notwithstanding that defence counsel might not take issue with the prosecution’s intended use of it in that way. However, apart from the comment made by the judge in the course of discussions with counsel, and to which we have just referred, it does not seem that the judge had any such reservations.
It was not suggested, on this appeal, that the second notation was not capable of constituting incriminating conduct. Nor would there be an appropriate basis for such a proposition. The first note reflected, relevantly, the evidence of the complainant as to what she told the appellant when she consulted him, namely, that she had abdominal and epigastric tenderness. It is a significant coincidence that, three hours later, the appellant included, in the second notation, the reference to ‘breast tenderness’, and that the complainant was seeking to be fully re-examined. In the circumstances of this case, there was an appropriate basis for the judge to be satisfied that a jury could reasonably consider that second notation as evidence of ‘incriminating conduct’ by the appellant.
In that context, it is not possible to comprehend what the judge meant by the observation that he made, in the course of discussion with counsel, that if a jury were to rely on the notation as evidence of incriminating conduct ‘there would be cause for concern elsewhere’. However, whatever the judge meant by that observation, it does not alter the fact, that it was common ground that the evidence could be used as incriminating conduct, and that there was an appropriate basis for the parties, and the judge, to act on that basis. Accordingly, the first point, sought to be raised under Ground 4A, does not succeed.
After that discussion with counsel, the judge resumed his charge. In the course of doing so, he told the jury that he was required to give a direction in relation to what was relied on as ‘incriminating conduct’. His Honour referred to the notice, given by the prosecution, and to the progress notes, contained in Exhibit 3, tendered on behalf of the defence. The judge then gave the following direction to the jury:
The direction that I have to give you is that whilst the prosecution rely on it to say, well, it is evidence of incriminating conduct in effect acknowledging his guilt, you may only use that evidence in that way if you find that this conduct did occur – I do not think there is much argument that the notes were made – and this is the passage that I want to stress to you – and the only reasonable explanation of this conduct is that the accused thought that they would tend to show that there had been nothing improper at the time of his examination of (the complainant) earlier in the day.
Again I say to you – and this is what the direction says – that even if you find that the accused believed he had committed the offence charged, you must consider all the evidence when deciding whether the prosecution have proved the accused’s guilt beyond reasonable doubt. So the important part of that direction is that you can only use that evidence as evidence of incriminating conduct if you find the only reasonable explanation is that the accused thought that it would lessen the negative evidence that was given in relation to what had happened earlier in the day.
Under Ground 4A, counsel for the appellant submitted that, in giving that direction to the jury, the judge failed to comply with the requirements of s 21 of the Jury Directions Act. In our view, that submission must be accepted. Indeed, more fundamentally, the direction given by the judge to the jury was confusing, and failed to provide to the jury an appropriate instruction as to that important aspect of the prosecution case.
As noted, the prosecution contended that the jury should infer that the appellant made the second notation at 6.18pm because he knew he had done ‘the wrong thing’ and, accordingly, he made that note in order to ‘cover his trail’. In essence, the prosecutor submitted that the accused knew that he had indecently assaulted the complainant, and he made the note in order to provide an innocent and lawful explanation for his conduct.
In those circumstances, it was necessary for the judge to direct the jury, in accordance with s 21(1)(a) of the Jury Directions Act, that, in order to treat the notation as evidence of the accused’s belief that he had committed the offence charged, or an element of it, the jury must be satisfied that the only reasonable explanation for the conduct of the appellant, in making the second notation, was that the appellant believed that he had indecently assaulted the complainant, and that he made the notation in order to create an innocent explanation for his conduct in doing so. The direction given by the judge fell materially short of such an instruction to the jury. In particular, the direction failed to specify to the jury the particular inference that the prosecution contended should be drawn by the jury from the additional notation in the appellant’s records, and to direct that the jury, in terms of s 21(1)(a)(ii) of the Jury Directions Act, that it was only entitled to draw that inference if it concluded that that was the only reasonable explanation for the conduct of the appellant in making the addition to the records on that date.
As discussed, the evidence of the second notation in the medical records of the appellant at 6.18pm was an important part of the prosecution case. It was necessary that the judge correctly direct the jury as to the use that the prosecution sought to make of that piece of evidence in the trial. On the other hand, it is significant that senior counsel for the appellant did not take exception to that part of the directions given by the judge to the jury. It is well understood that evidence of ‘incriminating conduct’ can assume an important role in a criminal trial. In a case such as this, a decision by trial counsel, not to take exception to a direction given by the judge to the jury concerning that aspect of the evidence, is of particular relevance when determining whether the offending direction has given rise to a substantial miscarriage of justice. Defence counsel had made quite persuasive submissions in response to that part of the prosecution case that was concerned with the addition to the appellant’s medical records. The direction given by the judge to the jury, while unsatisfactory, touched quite lightly on the topic. In those circumstances it might be inferred that counsel for the appellant considered that there was a forensic advantage in not highlighting the issue by seeking a re-direction by the judge in relation to it.
For those reasons, while the failure of the trial judge to give an appropriate clear direction to the jury concerning the additional notation to the appellant’s records, as required by s 21 of the Jury Directions Act, is a matter of some concern, we would not conclude that, of itself, it was such as to constitute a substantial miscarriage of justice in the trial.
Accordingly, we do not uphold ground 4A.
Disposition of appeal
The appellant having succeeded on Ground 5, the question arises as to the disposition of the appeal.
Senior counsel for the appellant contended that, if the appellant succeeded on Ground 5, the Court should not order a retrial, but should instead enter a verdict of not guilty in respect of each of the two charges brought against the appellant. Counsel contended that that course should be adopted because the irregularity, that was the subject of Ground 5, was the result of the conduct of the prosecutor at the trial. Counsel relied on a number of cases, including Teasdale, MRW and Kennedy, and the decision of this Court in R v Nicoletti[27] as authority for the proposition that, where the conduct of the prosecutor has occasioned a mistrial, that circumstance is a relevant factor, weighing in favour of the exercise of the Court’s discretion to enter verdicts of acquittal on behalf of an appellant, instead of ordering a retrial of the charges against the appellant.
[27](2006) 164 A Crim R 81.
Counsel further contended that, if the evidence of Father Abdelmalek and the evidence of Father Rizkalla had not been unfairly attacked by the prosecutor, but had been accepted by the jury, that evidence would have demonstrated that the complainant had given false evidence when she repeatedly denied that she was not seeking monetary compensation from the appellant. In that way, the complainant’s credibility would have been significantly damaged. In such a case, the incriminating conduct evidence relied on by the prosecution would have assumed a different perspective in the eyes of the jury. Thus, it was submitted, the prosecution case was by no means a compelling case, but, rather, it was and is beset with credit issues, internal inconsistencies and conflicts of evidence.
Section 277(1) of the Criminal Procedure Act 2009 provides that if this Court allows an appeal against conviction, in a case such as the present, the Court must either order a new trial or enter a judgment of acquittal on the charges brought against the appellant. In determining which course should be adopted, the Court is required to weigh the public interest, in securing a trial of an alleged wrongdoer, against any public inconvenience and expense, and against any possible unfairness or oppression to the appellant, that might result from a retrial of the charges that were the subject of the appeal. Ordinarily, where there is evidence that is capable of sustaining a conviction on a retrial, the discretion to order an acquittal is exercised with caution, and only in exceptional circumstances.[28]
[28]R v ALH (2003) 6 VR 276, 280 [18] (Callaway JA).
In R v Bartlett,[29] Winneke P (with whom Charles JA and Southwell AJA agreed) expressed the principles as follows:
In normal circumstances it would be proper to direct a new trial if there is evidence upon which a reasonable jury could, assuming a trial in accordance with law, convict. However the Court has a discretion not to order a retrial if there are circumstances which would render it unjust to require the applicant to stand his trial again …[30]
[29][1996] 2 VR 687.
[30]Ibid 698. See also Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, 630; Bauer (a pseudonym) v The Queen (No 2) [2017] VSCA 176 [115]–[122].
As each of the cases, relied on by counsel for the appellant, reveals, it is well accepted that, where the conduct of the prosecutor at trial has resulted in the quashing of the conviction on appeal, then that conduct is a relevant factor in considering whether or not a retrial should be ordered. However, in each of those cases, the decision of the appellate court to order a verdict of acquittal, rather than a retrial, was based on significant factors that were additional to the conduct of the prosecutor at the trial.
In Teasdale, the Court noted that the events in question had taken place three years earlier, and the evidence of witnesses at the trial had been affected by the lapse of time that had already taken place. In addition, all the witnesses at the trial had been affected by alcohol to some degree on the night, and their memories were unlikely to have improved. Further, the Court considered that the prosecution case was not of substantial strength in light of the discrepancies in the evidence of various witnesses. It was for those reasons that the Court ordered a verdict of acquittal, rather than a retrial.[31]
[31]Teasdale (2004) 145 A Crim R 345, 355–6 [49].
In MRW, in ordering an acquittal, the Court noted that the jury had acquitted the appellant on one count, and had found him guilty on another count, in circumstances which were difficult to reconcile. The Court noted that the verdict of acquittal indicated a degree of lack of satisfaction by the jury with the evidence of the complainant, and, in addition, the complainant’s evidence itself was the subject of intrinsic unlikelihood and inconsistencies.[32]
[32]MRW (1999) 113 A Crim R 308, 318–9 [53].
In Kennedy, the events that were the subject of the charges had taken place between 14 years and 19 years before the date of the appeal. In ordering an acquittal, rather than a retrial of the charges against the appellant, the Court noted that one of the reasons that the trial had miscarried was due to the conduct of the prosecutor. The Court also considered that it was significant that the case was a very old case, there had already been a lengthy delay between the commission of the offences and the first trial, and there would be a further delay if the appellant was required to stand trial again.[33]
[33]Kennedy (2000) 118 A Crim R 34, 51–52 [90].
Finally, in Nicoletti, Maxwell P (with whom Neave JA and Bongiorno AJA agreed) noted that the respondent had conceded, in that case, that the misconduct of the prosecution at trial was relevant to the exercise of the discretion. However, his Honour also took into account that two previous trials had miscarried through no fault of the appellant. In addition, the custodial portions of the sentences had been wholly served by one appellant, and almost wholly served by the other appellant.[34]
[34]Ibid 91 [52]–[53].
In the present case, the circumstances that were the subject of the charges occurred less than four years ago. There is no suggestion that, apart from Father Rizkalla, any of the other witnesses will be unavailable to appear at trial. Father Rizkalla was too ill to attend Court to give evidence at the trial, and he has since passed away. However, a recording of his evidence is available, and his evidence was favourable to the appellant. The circumstances that are the subject of the appeal are relatively confined and straightforward. There is nothing about the case which would render a retrial unfair or oppressive to the appellant.
Certainly, the fact that Ground 5 has been upheld on the basis of the conduct of the prosecutor, is a relevant consideration, in the exercise of the Court’s discretion, as to the course which it should take in allowing the appeal. However, in the present case, there are no other circumstances which could be likened to the factors that persuaded the Courts, in the cases to which we have referred, to order the entry of an acquittal, rather than a retrial of the charge or charges against the particular appellant. As we have earlier noted, on its face, the prosecution case was quite strong. The conduct of the prosecutor constituted a clear breach of his duty to present the case in a manner that was fair to the appellant. However, it was not so egregious as to warrant, without more, the dismissal of the charges against the appellant.
The appellant has apparently completed the unpaid community work, that was the subject of the Community Corrections Order, and he has served a substantial part of that order. Nevertheless, the charges against the appellant are serious. As discussed, on the face of it, the prosecution case against the appellant was quite strong. It would not be in the interests of justice for this Court to determine those charges on a basis that does not constitute an adjudication of the merits of the charges on their facts. In all the circumstances, a proper exercise of the discretion, reposed in the Court by s 277(1) of the Criminal Procedure Act, requires that the Court order a retrial of the charges against the appellant.
It is unfortunate that, as a consequence of the outcome of the appeal on ground 5, the parties and witnesses, will be required to endure another trial. However, a conclusion, that the verdicts of the jury should stand, would unacceptably devalue the right of the appellant to a fair trial of the charges against him. We note that the complainant gave her evidence at the trial from a remote location. There should therefore be available a recording of her evidence at the trial. If that is so, we would expect that her recorded evidence should stand as her evidence in the retrial, unless there is good reason that it should not.
Summary of conclusions
For the foregoing reasons, the appeal should be upheld on Ground 5 of the Notice of Appeal. The verdicts entered against the appellant on both charges should be quashed, the convictions set aside, and a retrial ordered in respect of both charges.
---
11
20
0