Taylor v R [2009] NSWCCA 180 (2 July 2009)

Last Updated: 11 August 2010

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Taylor v R [2009] NSWCCA 180


FILE NUMBER(S):
2007/12705

HEARING DATE(S):
4 June 2009 & 1 July 2009

JUDGMENT DATE:
2 July 2009

PARTIES:
Colin John Taylor (Appellant)
The Crown (Respondent)

JUDGMENT OF:
Campbell JA Latham J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/31/0266

LOWER COURT JUDICIAL OFFICER:
Hulme DCJ

LOWER COURT DATE OF DECISION:
26 February 2008


COUNSEL:
AJ Bellanto QC (Appellant)
V Lydiard (The Crown)

SOLICITORS:
Mandy Hull & Associates (Appellant)
Director of Public Prosecutions (The Crown)

CATCHWORDS:
CRIMINAL LAW – appeal and new trial and inquiry after conviction – appeal and new trial – miscarriage of justice – incompetence of counsel – whether accused lost a chance of acquittal by failure of counsel to articulate the grounds by which evidence was admissible under section 293 Criminal Procedure Act 1983 – whether the conduct of counsel is capable of rational explanation on forensic grounds – CRIMINAL LAW – evidence – evidentiary matters relating to witnesses and accused persons – evidence of sexual experience, reputation and morality – construction of the exceptions in section 293 Criminal Procedure Act 1983 – meaning of “relating to” and “relationship” – categories of exception to the prohibition to be construed broadly when there is material relevant to the case – proper procedure for an application under section 293 – WORDS AND PHRASES – “relating to”, “relationship”

LEGISLATION CITED:
Crimes (Domestic and Personal Violence) Act 2007
Crimes Act 1900
Criminal Procedure Act 1986

CATEGORY:
Principal judgment

CASES CITED:
R v White (1989) 18 NSWLR 332
R v Beserick (1993) 30 NSWLR 510
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
R v Morgan (1993) 30 NSWLR 543
R v McGarvey (1987) 10 NSWLR 632
Dimian v R (1995) 83 A Crim R 358
Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275
Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416; (1999) 168 ALR 211; 154 FLR 129
Law Society of New South Wales v Bruce (1996) 40 NSWLR 77
R v Birks (1990) 19 NSWLR 677
Criminal Appeal Act 1912
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614; 225 ALR 161; 162 A Crim R 301
R v Henning (NSWCCA, 11 May 1990, unreported)
R v Warner (NSWCCA, 7 May 1997, unreported)

TEXTS CITED:


DECISION:
Conviction quashed; new trial ordered.



JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/12705006

CAMPBELL JA

LATHAM J

HARRISON J

2 JULY 2009

Colin John TAYLOR v R

Judgment

1 CAMPBELL JA: In February 2008 the appellant was tried before Hulme DCJ (as his Honour then was) and a jury on a charge that, on 5 November 2006 and at a particular place, he: “... did have sexual intercourse with [ABC] without her consent, knowing she was not consenting and at the time of such sexual intercourse did maliciously inflict actual bodily harm upon her” contrary to section 61J(1) of the Crimes Act 1900.

2 There has been a non-publication order in respect of the identity of the complainant, in consequence of which I shall refer to her throughout this judgment as “ABC”. The particular form of sexual intercourse that ABC alleged she had been subjected to involved the appellant inserting a beer bottle into her anus.

3 After a four day trial the appellant was convicted of an attempt to commit this offence, but was not convicted of the offence charged. It appears that the jury were not satisfied that her anus had actually been penetrated by the beer bottle.

4 The appellant has been in custody from the date the jury returned their verdict, 26 February 2008. He was sentenced on 5 June 2008 for the offence of attempted aggravated sexual assault. The sentence was that there be a non-parole period of 4 years and 6 months and a balance of term of 1 year and 6 months, the sentence to date from 26 February 2008, with the appellant to be eligible for release on parole on 25 August 2012. Some other orders were made pursuant to sections 12(2) and 39 of the Crimes (Domestic and Personal Violence) Act 2007.

5 The appellant and ABC had been in a de facto relationship for several years before November 2006. They had purchased three adjacent houses in the Hunter Valley town in which they lived, and lived in one of those houses, that they were in the process of doing up. The appellant worked as an interstate truck driver, and was regularly away for days at a time. The events the subject of the charge occurred on a Sunday, after the appellant had returned on the previous Friday night from an interstate trip, and at a time when the appellant had consumed several bottles of beer, though the number of bottles and type of beer was a matter of contention at the trial.

6 The appellant appeals against his conviction, and, in the event that that appeal is unsuccessful, against the severity of the sentence. In the appeal against conviction the appellant has been granted leave to amend his grounds of appeal, so that they now read:

“Ground 1

There has been a miscarriage of justice in that defence counsel incompetently conducted the appellant’s trial in two respects:

(1) failed to properly articulate the basis upon which to cross-examine the complainant pursuant to section 293(4)(b) of the Criminal Procedure Act 1986; and

(2) failed to cross-examine in respect to the DNA evidence so as to ascertain the reasonable possibility of

(i) transference and

(ii) that the DNA may be from a relative; and

(iii) that the bottle did not come in contact with the complainant’s anus.”

7 There is a single ground in support of the application for leave to appeal against severity of sentence, namely:

“The learned sentencing judge erred in failing to find special circumstances in light of the following:

The applicant’s first time in prison (at age 52, without any relevant convictions and a person of good character).

The applicant had good prospects of rehabilitation.

The offence was an isolated aberration in the context of a de facto relationship when the applicant was under the influence of intoxicating liquor.”

Conviction Appeal

8 The witnesses called for the Crown were ABC, ABC’s daughter (to whom ABC had made a telephone call soon after the incident complained of), ABC’s aunt (who ABC telephoned after the incident, and who then drove to ABC’s house to collect her and take her to hospital), three police officers involved in investigation of the incident and collection of forensic evidence on the night of the incident and the next day, another police officer who was custody manager of the police station when the appellant was taken there, and a doctor who saw both ABC and the appellant on the night of the incident or the next day.

9 The witnesses in the appellant’s case were the appellant himself, and a next door neighbour who had seen and been involved in some of the events occurring around the time of the incident.

10 The Crown tendered various exhibits, including photographs of the injuries to the complainant, photographs of both the outside and the inside of the complainant’s house, and records of phone calls relating to the complainant’s house. There was also a certificate relating to a DNA analysis conducted on a beer bottle, and concerning swabs taken from the house which were positive for blood and matched the appellant.

The Section 293 Ground of Appeal

11 The first respect in which miscarriage of justice arising from incompetence of counsel is asserted arises from an application that counsel for the appellant at the trial (who was not the same counsel as appeared for the appellant on the appeal) made to the judge at the start of the second day of the trial. Counsel had begun his cross-examination of ABC the previous afternoon, but the cross-examination that afternoon had been only a few questions, of the most introductory kind.

12 At the start of the second day counsel sought a ruling “as to whether I can cross-examine without infringing the provisions of section 293 of the Criminal Procedure Act”.

The Statutory Provision

13 Section 293 Criminal Procedure Act 1986 provides:

“Admissibility of evidence relating to sexual experience

(1) This section applies to proceedings in respect of a prescribed sexual offence.

(2) Evidence relating to the sexual reputation of the complainant is inadmissible.

(3) Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible.

(4) Subsection (3) does not apply:

(a) if the evidence:

(i) is of the complainant’s sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and

(ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed,

(b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant,

(c) if:

(i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and

(ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person,

(d) if the evidence is relevant to:

(i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or

(ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person,

(e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence),

(f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked,

and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

(5) A witness must not be asked:

(a) to give evidence that is inadmissible under subsection (2) or (3), or

(b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible.

(6) If the court is satisfied:

(a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period:

(i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or

(ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and

(b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication,

the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified.

(7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury.

(8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision.”

14 The proceedings in the present case were ones in respect of a prescribed sexual offence.

Counsel and the Judge Discuss Section 293

15 The exchange between counsel and the judge concerning the possibility of the judge making a ruling concerning section 293 began:

“[COUNSEL]: My instructions the case of the accused is that shortly after 5 November 2006 the complainant and the accused re-commenced to have a relationship within the usual terms, an emotional relationship, including sexual relations, that continued right up until Monday afternoon of this week, Monday evening of this week, including Sunday the seventeenth, Monday the eighteenth of February and through January, through last year, 2007, at least three times a week, in circumstances where she was residing at the premises [where the incident had happened] and he was residing up at Gillieston Heights and/or travelling back from wherever he’d gone to in his destinations and journeys as an interstate truck driver; he’d come back and stop there and stay with her overnight and then go back to his own place, up at Gillieston Heights but I’m told that that carried on in that fashion for something like, I suppose – what are we talking about now – sixteen months, I suppose.

The issue is that the unlikelihood of – this is why I seek your Honour’s ruling – it’s the unlikelihood of such a relationship resuming and in the intimate way that it has, if there’d been the act carried out as alleged by the complainant, that is the insertion of the bottle and/or his fist into her anus as she alleges.

Now, whether that infringes the section itself is a moot point but the way I would want to put it is that there’s been a continuing – and I don’t want to go into the details, intimate details of it, your Honour, at all because that would be inadmissible but just merely to cover that relationship. It’s just not something – I mean an ADVO was taken out against him that he wasn’t to reside at the premises but that did not prevent him from going to the premises because he’s an owner of the house and two adjoining houses and continue to go there, working on those premises, during the last sixteen months.

HIS HONOUR: How do you say subsection 3 of section 293 does not apply?

[COUNSEL]: Subsection 3 of 293?

HIS HONOUR: You’ve got 293. Subsection 3 renders the evidence inadmissible. Subsection 4 provides exceptions. Which exception are you relying upon?

[COUNSEL]: Your Honour, I’m having difficulties in fitting myself into the section itself because we’re not going into any of those specific matters there. I’ve looked at it very quickly. I just can’t see that – I can’t deal with (a) for example, 4(a), that is the complainant’s lack of sexual experience; I can’t do that. Is of events that allegedly form part of a connected set of circumstances in which the offence was committed; well, no, I can’t bring it under (a)(2). (b) There was existing or [recent] at the time of the commission; I can talk about that matter but I don’t want to go into that in detail because it might contravene there.”

16 Counsel then sought to raise some other topics with the judge, but the judge directed his attention back to section 293:

“HIS HONOUR: ... You’re asking to be able to cross-examine her as to the continuation of a relationship from some time soon after 5 November until Monday of this week.

[COUNSEL]: Yes.

HIS HONOUR: So, which provision in subsection 4 would tend to permit that?

[COUNSEL]: I just don’t see it there, your Honour.

HIS HONOUR: Well, why do you say you should be allowed to raise it?

[COUNSEL]: Well, the cases seem to say this, your Honour, that this section should not be construed narrowly to prevent otherwise relevant evidence to be admitted.

HIS HONOUR: What cases are you referring to?

[COUNSEL]: I’m looking at Morgan’s case, your Honour, it’s in the reported service that I pulled off the net this morning.

HIS HONOUR: I think Morgan was one of the early cases in which something was said about if cross-examination of this nature was proposed that the parameters of it should be reduced to writing and provided. Has that been done?

[COUNSEL]: No, it hasn’t, your Honour but I can do that very shortly but I thought that as I didn’t come strictly within it, within the section itself, I’d articulate the matter in the first instance and then I can, your Honour will see, in short terms, it will only be very short.”

17 After counsel had accepted that the prohibition in subsection 3 made the evidence he wished to adduce prima facie inadmissible, the exchange continued:

“HIS HONOUR: So, subsection 4 is what you’ve looked to to find some exception to it.

[COUNSEL]: That’s right.

HIS HONOUR: And you’re saying that you can’t find any exception to it.

[COUNSEL]: I can’t, your Honour, no.

HIS HONOUR: Well, the section is quite clear in its terms then.

[COUNSEL]: Yes. Quite frankly, your Honour, I just can’t see where it fits in on subsection 4.

HIS HONOUR: Well, that seems to be the end of the matter.

[COUNSEL]: Yes but I suppose, your Honour, if the witness was asked the question, ‘You’ve continued to have a relationship with him’ and there being no suggestion of a sexual kind, that would not be prohibited. In other words, ‘You’ve seen him three times a week; you’ve made contact with him; you were with him on Monday and had coffee and drinks at a local hotel; he took you home; you were going to have dinner with him on Sunday evening; you were dressed and you made phone calls to him’.

HIS HONOUR: Well, the term ‘relationship’ has connotations, particularly when it’s in the context of two people who have had a relationship, which clearly included sexual activity. To say that she’s continued to have a relationship, to my mind, implies continued sexual activity which would be out of bounds, unless you can bring it within one of the exceptions.

[COUNSEL]: Yes.

HIS HONOUR: I suppose if you were to ask her whether she has seen him in certain situations which wouldn’t imply sexual activity, that wouldn’t be prohibited.

[COUNSEL]: No, of course but I’m trying to, as I say, I’m seeking the court’s guidance as well.

HIS HONOUR: I can’t advise you.

[COUNSEL]: No, I know that, your Honour but I’m seeking the court’s guidance in the sense that, as your Honour’s just said, “You’ve seen him”; yes, I acknowledge that. I don’t want to infringe the section itself. My learned friend and I have had some discussions about what my case is about and I don’t think that he’d argue to the contrary, about the facts.

HIS HONOUR: It seems to me that if you were to raise incidents in which they have seen each other but in terms that do not imply any sexual activity, that wouldn’t be prohibited.

[COUNSEL]: No.

HIS HONOUR: Anything you want to say about that, Mr Crown?

CROWN PROSECUTOR: No, I agree with that. I support what your Honour says about the use of the term ‘relationship’ though because the section’s quite clear, it’s a blanket prohibition and extends to any implication, quite clearly.

HIS HONOUR: Yes, I think that term would imply sexual activity, yes.

CROWN PROSECUTOR: But merely to go to instances where there’s been contact between the two--

HIS HONOUR: Yes, he’s lobbed around, she’s had him in the house, they’ve had coffee together or whatever. That’s a different matter.”

Evidence before the Jury about Post-Incident Contact

18 Upon resumption of the cross-examination of ABC, the first topic that counsel turned to was contact between ABC and the appellant after the offence. The second day of the trial was Thursday 21 February 2008. ABC accepted that the previous Monday she had gone with the appellant to a Gloria Jean’s coffee shop for a cup of coffee, then drove with him in his car to the licensed club where they consumed alcohol, after which he drove her to her home, and left. They were together from about 4:00 pm to 8:00 pm on that occasion.

19 In the previous week, the appellant had wanted to take ABC out for Valentine’s Day, but she was otherwise occupied. On the Sunday morning he had turned up at her house at 2:00 or 3:00 am, she let him in, and he left about 6:00 in the morning.

20 Since the incident the subject of the charge “three times probably” ABC had, at the appellant’s request, picked up some truck parts and dropped them off to the appellant’s premises at Gillieston Heights.

21 ABC accepted that she had been away with the appellant in his truck since the incident, including on trips to Melbourne, Adelaide and Tamworth. The trip to Tamworth was a one-day trip. She accepted that she had travelled with the appellant for seven days from Sydney to Woomera in South Australia, but said that was with the appellant “and plenty of other drivers”. Counsel cross-examined her suggesting various specific dates and destinations of trips on which she had accompanied him since the incident, but she did not assent to some of those suggestions, and in relation to some of those suggestions gave evidence to the effect that she thought that any such trip had been in 2006. She accepted that on Boxing Day 2007 the appellant was at her home. Concerning that incident she said:

“A. Yeah, the neighbours were coming. Yeah, the neighbours were there.

Q. And they came around for a drink?

A. He’s always there, he doesn’t leave.

Q. No, no. I said “And the neighbours came around for a drink”, isn’t that correct?

A. Yeah, the neighbours did.”

22 The cross-examination then turned to other topics, until there was a short adjournment. After the adjournment counsel returned to the topic of contact between ABC and the appellant:

“Q. I just want to go over a couple of things with you that we were – I was asking you this morning. Last Sunday morning 17 February, it is true that you contacted the accused using your mobile phone, is that correct?

A. I can’t remember, yeah.”

23 After some imprecise answers, the cross-examination continued:

“Q. But did you use that phone that belonged to your ex husband in the early hours of Sunday 17 February this year to ring the accused?

A. Yeah it’s in my bag but I don’t know the number.

Q. Yes, is that what you’re saying, yes?

A. Yeah.

HIS HONOUR

Q. I just want to be clear about this. You’re agreeing that you used that phone to contact the accused in the early hours of Sunday?

A. Yeah I think so, I’m not sure.

[COUNSEL]

Q. And I’m suggesting to you that the tone of the conversation was when was he going to arrive at [the town where ABC lived]. Do you agree with that?

A. No I thought it was the 6^th, the Saturday.

Q. I’m talking about Saturday night, Sunday morning, early hours of Sunday morning 17 February. Do you understand?

A. Yeah.

Q. Do you understand?

A. No.

Q. Well I suggest to you that you did ring him using this service that you say is subscribed in the name of your ex husband, [name] in the early hours of Sunday 17 February on at least four occasions before 3 am. What do you say to that, am I correct or not?

A. It could possibly be. I can’t – I think he rang a few times and it kept hanging up and I kept ringing back to see if he could be contacted.

...

Q. You’ve said that he left about 6 am that morning after you’ve had a conversation with him, is that right?

A. Yeah.

Q. I suggest to you it was 8 am when he left?

A. Yeah about 7 I thought.”

24 Other evidence concerning contact between the complainant and the appellant was:

“Q. You do agree that you rang the accused on the telephone, the mobile phone subscribed through your former husband, [name] at about 11.41 on 15 February, that’s last Friday?

A. Yeah that’s when he rang from somewhere for about four or five hours in the morning because it was the night after Valentines Day. He was accusing me of going out somewhere and I never went anywhere.

Q. You said – you left a message on his voice message which said “Just me, just wanted to find out if you got onto the bloke about the keys?”

A. Yeah the keys for the house.

Q. You rang him again at 3.50 on 15 February and--

A. --cause his phone kept cutting on. He’s got another prepaid number.

Q. All right, but you left a message saying “Just me, talk later”, is that right?

A. Oh probably yeah. I ring him on his normal number and it diverts to this other number.

Q. You rang him on Thursday 14 at 11.23 am and left a message “Just me, talk later.” Do you agree?

A. On what day?

Q. You left a message at 11.23 am on 14 February that said “Just me, talk later”?

A. Yeah because he sent flowers.

Q. He phoned you at 8 o’clock of Sunday last, 17 February and you spoke for some time with him. Is that correct?

A. I can’t remember.”

25 In re-examination the complainant was asked the following:

“Q. You’ve been asked a lot of questions about the contact that you kept with the accused Mr Taylor from the day of this incident, 5 November 2006, right through until this week?

A. Yes.

Q. Is there a reason why you kept contact with him during that period of time?

A. Because he owns half of the properties that we’re renovating and his attitude is he’s entitled to be there and I don’t know.

Q. You were asked about a number of trips you made with him in the truck since that day, 5 November 2006, including a long trip down into South Australia?

A. Yes.

Q. And at least one trip to Tamworth?

A. Yes.

Q. Is there a reason why you went with him on those occasions in the truck?

A. Because if you don’t go with him he thinks you’re at home with boyfriends or running around town somewhere, he doesn’t know where I am, so he’d prefer me to go in the truck with him.”

Addresses Concerning Post-Incident Contact

26 In the course of address the prosecutor said:

“It may well be suggested to you that [ABC’s] credibility nosedives because she’s maintained contact with the accused since these events on 5 November 2006 and you’ve heard that as recently as Monday of last week she had coffee with him at Gloria Jean’s and went to some licensed premises in Tomago and the argument might run that if these terrible things had been inflicted on her as she says, that she wouldn’t continue contact with him over the period of time that has elapsed since then. That I would submit to you, might be an argument of some weight if they were virtual strangers. That’s not the situation here. These are people that have been in a longstanding de facto relationship for at least two or three years. They met in, I think February 2002, they’ve been living together for quite some time and they’re tied together. Not because of mutual feelings that they have for one another and obviously there’s some feelings there, but they’re also tied together financially. They’re wrapped up in this development of the three properties that they had.”

27 In his address counsel for the appellant said:

“We would say to you that if you look at the relationship between these people in the sense that they’ve been seeing each other, they had legal arrangements between themselves in this land, there’s no doubt about that. But did you notice that when she was being cross-examined about having seen him, recent times, the trips down to Roxborough Downs, Woomera in a truck with him for a week, back to Melbourne, Dandenong, Sydney, Tamworth, Orange, Binnaway, Dunedoo. Unlikely that somebody, unlikely members of the jury, that someone who’d been assaulted in such a violent fashion, to insert a bottle into your anus, would want to go with a man in those circumstances, particularly when you’d made a statement to the police and on the Monday afternoon and there’s a little dispute about it. You might have thought this trial was listed to commence on Monday. She’s with him drinking coffee at Gloria Jean’s, somewhere in Hamilton she says, I think it might be in Darby Street, Cooks Hill or Newcastle, but anyway it doesn’t matter. Went to Tomago Bowling Club and had a couple of beers, or a drink or two.

Sunday morning, he says, arrived at her place at 3.30, left at eight. Arrangements, telephone calls with each other. The flowers for Valentine’s Day. If that was the case, he stuck a bottle in your anus, with the force that she described you’d hunt him. Commonsense, objective reality says that. Objective reality is the reality that all of us inherit from our parents, our society, that says that you don’t willingly you might have thought with commonsense keep company with a man that jams a bottle into your anus, in the fashion in which this woman says occurred. You’d think you’d keep right away from him. Irrespective of whether you had legal dealings with him in land or otherwise.”

28 In his summing up to the jury the judge said nothing about the evidence concerning contact between the complainant and the appellant after the incident.

Relevant Legal Principles

Section 293 Criminal Procedure Act

29 Section 293 Criminal Procedure Act is in terms that do not relevantly differ from those of the former section 409B Crimes Act 1900, which was enacted in 1981. Section 409B(3)(b) was in terms that differ only stylistically from section 293(4)(b) Criminal Procedure Act 1986.

30 In R v White (1989) 18 NSWLR 332 this Court (Gleeson CJ, Carruthers and Badgery-Parker JJ) considered the scope of the prohibition in section 409B(3) that is analogous to the present section 293(3) Criminal Procedure Act. Their Honours said, at 340C-D:

“The word ‘disclose’ means to make a statement which reveals or makes apparent some fact which was previously unknown to someone who hears or reads the statement: Foster v Federal Commissioner of Taxation (1951) 82 CLR 606. The evident purpose of the legislation is to limit the circumstances in which complainants in sexual assault cases will have to endure having what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court. The width of the expression ‘discloses or implies’ and the use of the phrase ‘has or may have had’ demonstrate that what attracts the prima facie exclusion is the information or imputation which the evidence conveys to someone who hears or reads it.”

31 Their Honours also considered the scope of the exception in section 409B(3)(b). They said, at 341D-F, that the “relationship” there spoken of “must be something more than what exists between two people who have met one another once or twice before and who strike up a conversation on a beach”. They held that the meaning that “relationship” had in that particular context was, of two possible dictionary meanings they considered, closer to the sense conveyed by a definition of “relationship” as being “an emotional connection between people, sometimes involving sexual relations”. It is to be noted that their Honours were not purporting to themselves give a definition of “relationship” as it appears in section 409B(3)(b).

32 The account of “relationship” given in R v White was extended by Gleeson CJ, Campbell and Mathews JJ in R v Henning (NSWCCA, 11 May 1990, unreported). Their Honours said, at 76-77:

“Putting aside for a moment the temporal requirements of paragraph (3)(b), it would seem to follow from White that an emotional and/or a sexual connection between the parties will ordinarily, although not necessarily always, be the basis for concluding that there is a ‘relationship’ between them. We say and/or a sexual connection, for we do not consider in the circumstances that the emotional aspect is as important as the sexual one. We are, after all, considering the matter in the context of an alleged sexual assault. So if the evidence were to disclose a reasonably regular sexual liaison between the parties, which was still current or recent at the time of the alleged offence, then we consider that this would constitute a relationship under paragraph (3)(b). It would be immaterial that there was little or no emotional involvement between the partners to the sexual activity.

We have entered into this discourse only because of its particular relevance to this case. For it would be unwise to attempt to define ‘relationship’ under paragraph (3)(b) too closely. In this volatile area of human activity, there must be a degree of latitude in order to enable judges to meet the particular exigencies of individual cases.”

33 Similarly, R v Beserick (1993) 30 NSWLR 510 at 517-8 recognised that “relationship” in section 409B can be wider than the meaning adopted in R v White, and can extend to the sort of relationship that exists between an adult and the child he sexually abuses, in which there might be no “emotional connection” beyond the abuser’s desire for the child.

34 The restriction on admissibility of evidence about sexual activity created by section 409B(3) applies to both consensual and non-consensual sexual activity: HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [28]- [31] per Gleeson CJ, [51] per Gaudron J, [92] per McHugh J, [124] per Gummow J, [147] per Hayne J.

35 It is possible for evidence of acts occurring after the incident the subject of the charge to be admitted under section 409D(3)(b) if they are relevant to the charge: R v Beserick (subsequent sexual contacts between accused and complainant admissible as showing guilty passion at the time of the alleged offence); R v Morgan (1993) 30 NSWLR 543 (evidence admissible under equivalent of section 293(4)(a) of complainant having sexual intercourse with her boyfriend [a man other than the accused] within an hour or two of the alleged offence and making no complaint to him).

36 There is ample authority in this Court that the categories of exception defined by section 409B(3) should be construed broadly when the material in question is otherwise relevant to the issues of the case: R v McGarvey (1987) 10 NSWLR 632 at 634C-D per Hunt J (with whom Wood and Allen JJ agreed); R v Henning at 70-1 per Gleeson CJ, Campbell and Mathews JJ; Dimian v R (1995) 83 A Crim R 358 at 365 per Hunt CJ at CL (with whom Smart and Simpson JJ agreed). In R v Morgan at 551D-E Mahoney JA (with whom Gleeson CJ and Sully J agreed) identified the reason for so doing as being that the court should “adopt a construction which favours the liberty of the accused”.

37 In R v Warner (NSWCCA, 7 May 1997, unreported) Gleeson CJ (with whom Grove and Sperling JJ agreed) upheld an appeal against a conviction for having sexual intercourse with a complainant without her consent and knowing that she was not consenting. The trial judge had rejected evidence described by Gleeson CJ as being that (at 5):

“... a few weeks after the alleged rape of the complainant by the appellant ... the complainant sought out the company of the appellant, went to live with him for a few days, and during that time resumed her sexual relationship with him.”

38 Gleeson CJ said, at 6, that the relationship relevant to section 409B(3)(b) “was the relationship which was allegedly existing at the time of the commission of the alleged offence.” He held that a “relationship” within the meaning of section 409B(3)(b) was in existence between the complainant and the accused at the time of the offence.

39 His Honour explained the relevance of the evidence that had been rejected as being (at 5-6):

“... it was possible that the jury might have thought that the fact that in March 1992 these two people were engaged in consensual sexual relations had a bearing upon the probabilities as to whether or not, a few weeks earlier, the appellant had subjected the complainant to the violent and degrading act of rape which she described in her evidence. There are some people who might think that conduct of that kind on the part of the complainant in March 1992 might have made it less likely that she was telling the truth about what she alleged had occurred on 30 January 1992. I hasten to say that there are other people who would not think that. It is, however, very difficult to predict what kind of effect evidence of that kind might have on the minds of individual jurors.”

40 Concerning the admissibility of the evidence, Gleeson CJ said (at 6-7):

“It seems to me impossible to deny that the evidence that was excluded in the present case was evidence relating to the relationship which was existing at the time of the commission of the offence. The relationship in question had begun before [the date of commission of the offence], it existed on [the date of commission of the offence] and it continued for a time thereafter. This was evidence about the relationship. In my view the evidence should have been allowed under s 409B(3)(b).”

41 Quite apart from the decision in Warner, there is ample judicial authority concerning the approach to be taken to a construction of the words “relating to” in a statute. For example in Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275 at 285 Beaumont and Lehane JJ said:

“Of the phrase ‘relating to’, Taylor J said, in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602 at 620:

‘... the expression ... is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so, all that a court can do is to endeavour to seek some precision in the context in which the expression is used.’

Taylor J went on to say (at 620) that ‘relating to’ in the context there considered was not the ‘equivalent of ‘referring to’; the ‘relationship’ must be based upon some more substantial ground’.

Other decisions of the High Court have acknowledged that, ordinarily, ‘relates to’ is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice (see Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 338 per Brennan J, at 347 per Dawson J, at 354 per Toohey J and at 370 per McHugh J; PMT Partners Pty Ltd (In liq) v Australian National Parks & Wildlife Service [1995] HCA 36; (1995) 69 ALJR 829 at 835-836 per Brennan CJ, Gaudron and McHugh JJ and at 845-846 per Toohey and Gummow JJ; Re Jarman; Ex parte Cook [1996] HCA 7; (1996) 70 ALJR 550 at 553 per Brennan CJ and Gaudron J and at 556 per Kirby J. Tooheys’ case has been followed in this Court (see, eg, Secretary, Department of Foreign Affairs and Trade v Boswell [1992] FCA 321; (1992) 36 FCR 367 at 374 per Hill J and at 383 per Cooper J).”

42 Similarly, in Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) [1999] NSWCA 416; (1999) 168 ALR 211; 154 FLR 129 Fitzgerald JA said, at [56]:

“The width of the phrase ‘relating to’ is undoubted. Lord Macnaghten stated that ‘[t]here is no expression more general or far-reaching’: Commissioner of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22 at 26. See also Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615 at 629; Colakovski v Australian Telecommunications Corporation (1991) 29 FCR 429; Secretary, Department of Foreign Affairs and Trade v Boswell [1992] FCA 321; (1992) 36 FCR 367; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 329-330, although the addition of the words ‘or depending on’ was presumably intended to give the combined phrase ‘relating to or depending on’ a wider operation than ‘relating to’. The difficulties of construction presented by such language have also been noted. Taylor J observed that ‘... the expression ‘relating to’ ... is ... vague and indefinite ...’ and ‘... leaves unspecified the plane upon which the relationship is [to be] sought and identified’: Tooheys Ltd v Commissioner of Stamp Duties [1961] HCA 35; (1961) 105 CLR 602 at 620. One area of debate has been whether, in particular legislation, a relationship need or need not be ‘direct’ or ‘direct and immediate’: see, for example, Ausfield Pty Ltd v Leyland Motor Corporation of Australia Ltd (No 2) [1977] FCA 6; (1977) 14 ALR 457 at 460, 462; 30 FLR 477 at 480, 483; Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 364 and 370; Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275 at 285; see also Perlman v Perlman [1984] HCA 4; (1984) 155 CLR 474. Overall, the position judicially adopted has been that the operation of the phrase ‘relating to’ is determined by the statutory context and purpose: Butler v Johnston [1984] FCA 118; (1984) 4 FCR 83 at 87; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491.”

See also Law Society of New South Wales v Bruce (1996) 40 NSWLR 77 at 84 per Giles CJ Comm D.

43 The potential width of the expression, “relating to”, together with the established principle that the categories of exception in section 409B(3) should be construed broadly when the material in question is otherwise relevant to the issues of the case (a line of principle clearly applicable to section 293 Criminal Procedure Act) provided a basis of authority for arguing that the evidence concerning the continuation of the relationship after the incident was admissible. This meant that having a sound basis for presenting an argument for admissibility of the evidence was not dependent upon counsel already knowing about, or being able to find, the unreported judgment in Warner. (I note that a reference, and hyperlink connection, to Warner emerges promptly if one searches the expression “409B” in judgments of the NSW Court of Criminal Appeal on Casebase, but put that fact to one side when there is no evidence about whether a search conducted at the time of the trial would have yielded the same result. These days, use of electronic aids to legal research is part of the standard that courts are entitled to expect of counsel.)

Procedure for an Application under Section 293

44 The procedure that counsel should adopt in making an application under section 409B were laid down by this Court in R v McGarvey. Hunt J (with whom Wood and Allen JJ agreed) said, at 634G-635B:

“Counsel should be vigilant to see that there is made a proper record of the material upon which a ruling is sought pursuant to s 409B. Preferably, a detailed written statement of the evidence proposed to be led or extracted in cross-examination should be handed to the trial judge and marked for identification. In that way, there should be no room for any later argument in the trial or upon appeal as to what had been permitted or rejected pursuant to s 409B.”

45 The desirability of counsel coming to an argument about admissibility under section 293 armed with a written statement of the evidence proposed to be given arises from the terms of the section itself. Unusually amongst rules of evidence, section 293(5) imposes limits upon the questions that counsel can ask of a witness – usually counsel is free (subject to limits of proper professional conduct) to ask any question he or she likes, and wait to see whether it is objected to.

46 By contrast, section 293(5) forbids counsel from asking a question that would elicit evidence that is inadmissible under subsection (2) or (3), and counsel can ask a question that would elicit evidence that is or may be admissible under subsection (4) only if there is a prior ruling of the court that the evidence would, if given, be admissible. For a section like that to be workable, it is necessary for both counsel, and the judge, to know in advance the substance of the evidence that would be elicited by the question.

47 The structure of section 293, so far as presently relevant, is that subsection (3) creates a blanket rule making inadmissible the types of evidence described in it. Subsection (4) then creates six exceptions to that blanket rule. Before an exception applies, the evidence that is proposed to be adduced must both: 1) be one or other of the types of evidence described in paras (a)-(f) of subsection (4), and 2) meet the test that “the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission”. The proposed evidence would need to be known in some detail before counsel or the judge was in a position to tell whether it fell within one or other of paras (a)-(f) of subsection (4), and whether the probative value of the evidence outweighed any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission.

48 Further, there is a mandatory requirement under section 293(8) for the court, before the evidence is given, to record or cause to be recorded in writing the nature and scope of the evidence that is so admissible, and the reasons for the judge’s decision that it is admissible. Again, that task can only be performed if the “nature and scope of the evidence” is known in advance. The judge’s ruling about the nature and scope of the permissible evidence should be made “with some precision”: Dimian at 367. However, there is no need for the questions that are to be asked to be specifically identified: Dimian at 364 per Hunt CJ at CL (with whom Smart and Simpson JJ agreed).

Miscarriage of Justice Through Incompetence of Counsel

49 In R v Birks (1990) 19 NSWLR 677 Gleeson CJ (with whom McInerney J agreed) said at 685:

“The relevant principles, may be summarised as follows:

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”

50 It will be seen that the third principle focuses on whether there has been a miscarriage of justice as being the test for appellate intervention, and identifies “flagrant incompetence” of counsel as “perhaps” one possible cause through which a miscarriage of justice comes about. It is the miscarriage of justice that is the basis of an appellate court’s intervention. That is because this Court is created by statute, and has only the jurisdiction that is given to it by statute. Its only presently relevant jurisdiction is that conferred by section 6(1) Criminal Appeal Act 1912, which provides:

“(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

51 In the present case it is not contended that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence, nor is it contended that the judgment of the court should be set aside on the ground of a wrong decision on any question of law. Thus the only way in which the complaints that form the substance of the appeal can find a footing in section 6(1) is if the court is satisfied that “... on any other ground whatsoever there was a miscarriage of justice”.

52 But a criminal appeal in which one of the grounds alleges miscarriage of justice arising from incompetence of counsel is not a civil trial of an action for negligence. It is not a disciplinary enquiry into an allegation of professional misconduct. As Gaudron J (with whom Gummow J agreed) said in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at 134 [30]- [31]:

“The words ‘on any other ground’ do not postulate the demonstration of error. Rather, they simply require that ‘something occurred or did not occur’ in the trial (see R v Scott (1996) 131 FLR 137 at 152; 137 ALR 347 at 362-363, per Doyle CJ).

As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of ‘flagrant incompetence’, ‘egregious error’ or the like.”

53 Similarly, in Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614; 225 ALR 161; 162 A Crim R 301 at [8]- [9] Gleeson CJ said:

“... where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred. ... The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.”

54 One way in which an objective standard is applied to the conduct of counsel is by enquiring whether that conduct is capable of rational explanation on forensic grounds: TKWJ at 131 [17] per Gleeson CJ, 133 [25]-[27] per Gaudron J, 158 [107] per Hayne J (Gummow J agreed with Gaudron and Hayne JJ); Nudd at [16] per Gleeson CJ, [31] per Gummow and Hayne JJ, [157] per Callinan and Heydon JJ.

Evidence Concerning Counsel’s Instructions

55 It was in the course of argument on this appeal that the appellant was granted leave to amend his grounds of appeal. Following that amendment, the hearing was adjourned, on application of the Crown, to give it the opportunity of obtaining evidence from the barrister who appeared at the trial. The appellant was also given the opportunity to put on any supplementary evidence.

56 Counsel who appeared at the trial has sworn an affidavit. It deposes to the following matters.

57 Counsel was first retained in September 2007. He was informed by the appellant on 25 October 2007 that the appellant’s relationship with ABC had ceased after he was charged and resumed spasmodically from some time in March 2007.

58 At a further conference between counsel and the appellant on 14 January 2008, instructions were received that the sexual relationship had resumed in about March 2007 and continued “until the evening of the 18^th February 2008” [sic]. On 14 January 2008 the appellant was requested to provide instructions and supporting material verifying that resumption of a sexual relationship.

59 On 17 February 2008 the appellant was requested to locate business records that could support his instructions. On the morning of 20 February 2008 the appellant produced his day books for the years 2006 and 2007, on the basis of which he instructed that sexual relations had resumed on or about 23 March 2007 at Armidale. He provided instructions about particular trips on which ABC had accompanied him, during which sexual relations had occurred.

60 Counsel says he came to the view that the provisions of section 293(3) applied to his factual instructions. He gave consideration to section 293(4)(b), and formed the view that the gap of four months and almost three weeks between the date of the alleged offence and the resumption of sexual relations meant that “there was no recent relationship that could connect to the commission of the offence”. He accepts that, in regarding the matter that way, he asked himself the wrong question. He was not aware of the decision in Warner.

61 A supplementary affidavit from the present solicitor of the appellant gives evidence that she obtained the file of the solicitors who acted for the appellant at the trial. It contained a folder said to be counsel’s brief. That folder contained four copies of a four-page document purporting to be a statement of the appellant, but that was not signed or dated. The former solicitors’ file also contained a document containing identical text to the statements just mentioned from counsel’s brief, that had a fax header identifying it as having been sent from the fax of the appellant’s former solicitors on 19 February 2008. That document paints a picture that differs in some details from the picture presented by counsel’s affidavit. It says that “since 5 November 2006” ABC and the appellant “have maintained an intimate relationship”, and that “since the alleged incident on 5 November 2006” they “have been engaging in sexual intercourse approximately three times per week”.

62 The statement includes a statement that the meeting between ABC and the appellant on 18 February 2008 included sexual intercourse.

63 It also includes details of specific dates when ABC accompanied the appellant to specific destinations, over the period 2 March 2007 to 18 January 2008, but the statement says nothing about whether sexual intercourse did or did not take place on those trips.

64 The Crown also filed an affidavit annexing a statement taken from ABC. It confirms that “we started to resume normal physical relations about March or April 2007”, and gives her explanation for why she did so. It was, in broad terms, that she was not strong, and had very low self-esteem, and “did not want to cause too much trouble and as time passed with the adjournments I felt an obligation toward allowing him there due to his half ownership of the property”. She asserts that now, after counselling, she recognises “that it was his dominance and control that had me remain in a relationship.”

Decision

65 Counsel appearing at the trial was right to concede that the evidence that he wished to adduce from ABC in cross-examination fell within the prohibition created by section 293(3). However, he failed to identify for the judge that section 293(4)(b) would enable the cross-examination to take place. In the present case, if counsel’s instructions were correct, there was clearly a “relationship” within the meaning of section 293(4)(b) between the appellant and ABC, and that relationship was existing at the time of commission of the alleged offence. Further, the evidence that counsel wished to adduce “related to” that relationship, because, if counsel succeeded in adducing it, and it was accepted by the jury, it would show that that relationship continued uninterrupted after the date of the alleged offence. The evidence is similar in nature to the evidence that the trial judge in Warner wrongly rejected. It would have precisely the sort of relevance that was identified by Gleeson CJ for the evidence that had been rejected in Warner.

66 Counsel was not able to identify any of the relevant cases for the judge, apart from Morgan. In the end, he did not press the application, and admitted defeat in trying to bring the evidence within subsection (4). In my view, if the application had been properly made to the trial judge, it would have been erroneous for the judge to have rejected it. That is so regardless of whether the application was made on the basis that sexual relations did not recommence until 23 March 2007, or that they commenced in the manner that counsel outlined to the judge (set out at para [15] above).

67 The discussion concerning section 293 did not get to the point of the judge needing to make the recording, required by section 293(8), of the nature and scope of the evidence that is admissible and the reasons why the judge decided it was admissible. However, had that stage been reached, counsel’s task in assisting the judge to comply with section 293(8) would have been considerably eased if counsel had had in written form a statement of the evidence proposed to be adduced.

68 Counsel’s affidavit and the statement that was contained in his brief provides proof of what I would in any event have inferred from the fact that the questions were asked at all, namely that counsel had instructions concerning the various specific trips away in the truck that he suggested to ABC had occurred after the incident. Of course, his having those instructions, and the instructions being true, or the facts to which they related ultimately being accepted by the jury, are quite different things. Similarly, to the extent to which the recently obtained statement from ABC survived any evidentiary objection, it would be a matter for the jury whether it accepted it, or regarded it as a reason for taking any different view than they would otherwise take concerning whether the elements of the offence were made out.

69 It is to be observed that there were various parts of ABC’s evidence that she volunteered that are consistent with an ongoing relationship that had a sexual component. I refer to her evidence that “He’s always there, he doesn’t leave” (concerning her home), the evidence about him sending flowers on St Valentine’s Day (though a jury might discount that on the basis that it was so close to the date of the trial), and the evidence about the accused regarding himself as having a right to control who ABC went out with and to know where she was.

70 In the present case, if one were restricted to drawing inferences from the transcript, it would be inconceivable that counsel appearing at the trial made an informed and deliberate decision not to present the type of argument that the court upheld in Warner as to why evidence of an ongoing sexual relationship between the accused and the complainant after the events that form the subject of charge was admissible. It would also be inconceivable that counsel appearing at trial made an informed and deliberate decision not to refer the judge to relevant cases on section 293 or its predecessor, or to cases that showed how the proposed evidence “related to” the relationship within the meaning of section 293(3)(b). It would also be inconceivable that counsel appearing at trial made an informed and deliberate decision to conduct the discussion (it can hardly be called an application) he had with the judge concerning section 293 when he had only “looked at it very quickly”, and without having reduced to writing the nature and scope of the evidence he hoped to elicit in cross-examination of the complainant. No forensic advantage could have come from counsel deciding to act in any of these ways. It was these actions that were the substantial cause of there being no attempt made to elicit the evidence concerning the topics on which he had instructions. Counsel’s affidavit confirms that, although he appreciated the clear relevance of the sexual relations between ABC and the appellant, he was not seeking any forensic advantage in failing to put these matters to the judge. Rather, he did not present what should have been a successful argument for admissibility of the evidence because it did not occur to him.

71 The Crown makes no submission that the continuance of the sexual relationship after the alleged offence is irrelevant. It submits that there was evidence before the jury of continuing contact between the appellant and ABC after the alleged commission of the offence, including trips away. It submits that we should not find that there was a substantial chance or a significant possibility that the jury would have acquitted the appellant if, in addition to that evidence of continuing contact, there had also been evidence of a resumed sexual relationship.

72 I do not agree.

73 The picture that the jury was left with, that a substantial reason for their ongoing contact was that they were locked together by their joint ownership of properties that were part way through a process of renovation, is substantially different to the picture that there would have been if the jury had had evidence of an ongoing regular sexual relationship. Of course, as Gleeson CJ explained in Warner, it would be very much a matter for the jury what significance they put on that different picture. However, when an important element of the appellant’s case was not able to be put before the jury because of the way counsel handled the application under section 293, it seems to me that the appellant has lost a real chance of acquittal. It is important, in reaching that view, that this is a case where the jury’s view of ABC’s credibility in her account of how the assault took place is of great importance, even though the Crown case is supported by more than her evidence.

74 In all these circumstances there has been, in my view, a miscarriage of justice.

75 It is unnecessary for the purposes of this judgment to give consideration to the possibility, adverted to by Gleeson CJ in Nudd at [9], that sometimes it may be necessary to understand why a particular course of action was taken at a trial to decide whether it results in a miscarriage of justice. The reasoning so far is sufficient to lead to the conclusion that the conviction should be set aside, and there should be an order for a new trial.

The DNA Evidence Ground of Appeal

76 Senior Constable Belinda Carrington is an officer of the Forensic Services Group, Crime Scene Operations Branch. She gave evidence of attending the premises about 11:30 am on Monday, 6 November 2006. The complainant was there, and pointed out various items to Senior Constable Carrington.

77 Senor Constable Carrington observed an empty 375 ml Tooheys Extra Dry beer bottle on the ground outside the house. She took one wet swab from both the inside and outside of the spout of the bottle, and one dry swab from those same locations. She identified the location as being “around the mouthpiece where you would normally touch a bottle if you touch a drink ... and, and also just inside the lip”.

78 A Certificate of Analysis from Ms Sharon Neville, an employee of the Division of Analytical Laboratories of the Sydney West Area Health Service, was tendered. She had available to her buccal samples taken from the appellant and the complainant respectively. She carried out DNA testing on two areas of the beer bottle (the body and the neck) and on the swabs that Senior Constable Carrington had taken from the beer bottle. Ms Neville reported:

“Colin TAYLOR has the same DNA profile (in the Profiler Plus System) as the DNA recovered from the swabs from the beer bottle (item 2). This DNA profile is expected to occur in approximately 1 in 24 million individuals in the general population. Traces of DNA from a second individual were also present. [ABC] could not be excluded as the source of this DNA.

[ABC] has the same profile (in the Profiler Plus System) as the DNA recovered from the body of the beer bottle (item 1, area ii)[.] This DNA profile is expected to occur in fewer than 1 in 10 billion* individuals in the general population. Traces of DNA from a second were also present. Colin TAYLOR could not be excluded as the source of this DNA.

The DNA recovered from the neck of the bottle (item 1, area i) is a mixture which appears to originate from two individuals, one male and one female. It is approximately 573 million times more likely to obtain this mixture if it originates from Colin TAYLOR and [ABC], than from Colin TAYLOR and an unknown, unrelated individual.

...

A billion is defined as 1000 million.”

79 Ms Neville was not called to give evidence in chief. The cross-examination of Senior Constable Carrington clarified exactly what steps she had gone through in taking the various forensic samples that she took that day, but did not touch on any of the topics listed in the second sub-ground of ground 1 of the appeal.

80 Senior Constable Carrington was in the process of undertaking a diploma course in forensic investigation through the Canberra Institute of Technology. She listed the courses and training that she had undergone:

“... chemical targeting of trace evidence at crime scenes; certificate IV in forensic investigation; Forensic Service Group physical evidence induction course; collection of DNA evidence under the Crimes Forensic Procedures Act 2000. I have completed other external and in-service courses that assist me with my duties.”

81 Her level of knowledge and experience concerning how DNA is transferred, and the extent of similarity of DNA of related persons, was not likely, on the basis of the qualifications and experience she listed, to be high. However her qualifications and experience were such that it was not a foregone conclusion that she would be unable to answer such questions.

82 In address the Crown Prosecutor referred to the DNA evidence:

“[ABC] has the same profile as DNA from the body of the bottle. Again, there’s traces of a second individual and the accused could not be excluded as the source of DNA from the neck of the bottle, a mixture of two individuals and it’s proper male and female, more likely from the accused and [ABC] than the accused and some unknown person. So there’s DNA on the bottle outside that lends support to what [ABC] says has taken place with that bottle. You’d have some expectation that her DNA would be on it somewhere and the location of the DNA fits in, you might think, with the way she says the bottle was used in the attack, that part of that bottle penetrated her bottom, that he was holding it in his right hand and punching at it, her bottom with it. So you’d have the expectation that there would be DNA of her around the top of the bottle and other places on the bottle as well because the other parts of the bottle would be making contact with her as well and, of course, he’s got his hand around it so his DNA would be on it as well.”

83 In address, counsel for the appellant pointed out that the testing of the swabs taken from the neck of the bottle showed the appellant’s DNA was there, but did not positively establish that ABC’s DNA was there. It also pointed out that the DNA of a second individual was said to be “traces”. There is some allusion to the testing of the neck and body of the beer bottle itself, in a context of suggesting that the location of the DNA was not consistent with her account of how she was injured.

84 In his summing up the judge summarised the DNA evidence, and said:

“Now one thing in relation to that ‘traces’, ladies and gentlemen, you should be careful about that, because you do not have any evidence about how DNA bearing material can be left on an object. Then you also, I suppose, need to bear in mind that you are looking at a swab, so a fairly small area of the surface area of the bottle. The entire surface area of the bottle is not the subject of this testing, but just the area from which a swab was taken.”

85 Though counsel’s affidavit gives some account of why he did not cross-examine on the DNA evidence, no useful purpose would be served by considering that account. That is because, even if I were to come to the view that there was no rational forensic explanation for failure to cross-examine on the DNA evidence, it would not contribute to the ultimate outcome of this appeal. In light of the conclusion to which I have already come, that the way in which section 293 was dealt with in the course of the trial has caused a miscarriage of justice, there would be a real difficulty in deciding whether the failure to cross-examine concerning the DNA evidence has deprived the appellant of a chance of acquittal that was fairly open to him. It would, in my view, be quite artificial to consider that question on the hypothetical basis that no miscarriage of justice had resulted from counsel’s having run the application for a ruling under section 293 in the manner he did. Notwithstanding the usual desirability of this Court dealing with all grounds of appeal, I do not think that, in the particular circumstances of this case, it is possible to decide the ground of appeal relating to the DNA evidence.

Order

86 I propose that the conviction be quashed, and a new trial held.

87 LATHAM J: I agree with Campbell JA.

88 HARRISON J: I agree with the judgment of Campbell JA and with the order he proposes. I would only wish to add some brief remarks.

89 As Campbell JA has accurately recorded, this is a case where the jury's view of ABC's credibility in her account of how the assault took place is a matter of great importance. One of the matters that was clearly of significance in that respect was the true nature of the relationship between her and the appellant. As a general proposition, there is an unsettling air of unreality about requiring a jury to give some consideration to the importance of any set of facts, such as a relationship between an accused person and a complainant in a sexual assault trial, without proper and appropriate access to all of the admissible details of it. In simple terms, the jury should be given the full picture if there is any chance that being given only some of it might lead to a misunderstanding of precisely what that picture was. What the jury does thereafter with that information is of course strictly a matter for the jury concerned. A jury might reason that the appellant and ABC had some form of financial interdependence from the evidence that was admitted at the trial. That was certainly an important part of their relationship but it was not the full picture. In my view, knowledge of less than all of the admissible facts about the relationship between ABC and the appellant in the particular circumstances of this case was potentially, if not actually, misleading. The exception that is contained in s 293(4)(b) appears to anticipate or to recognise this without doing any disservice to the very important safeguards and protections that it enshrines. The acts or omissions that led the jury in this case to decide it without the full picture also led to a miscarriage of justice.

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LAST UPDATED:
19 July 2010