[1995] HCA 58
Dietrich v The Queen (1992) 177 CLR 292
[1992] HCA 57
Director of Public Prosecutions (NSW) v Chaouk [2010] NSWSC 1418
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Source
Original judgment source is linked above.
Catchwords
[1995] HCA 58
Dietrich v The Queen (1992) 177 CLR 292[1992] HCA 57
Director of Public Prosecutions (NSW) v Chaouk [2010] NSWSC 1418
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Judgment (30 paragraphs)
[1]
The applicant's case at trial
In essence, in his evidence, the applicant stated that Lilith and Jennifer, assisted by biased police officers at Campsie Police Station, had fabricated the allegations and had manipulated the complainant. He contended that Lilith was mentally unbalanced, and had manipulated the applicant to marry her, and had given birth to the complainant to enhance her immigration status. He further alleged that Lilith had manipulated the complainant to give evidence against him in order to receive full child support. He also alleged that Lilith was getting back at the applicant for having her son removed from the family home following the incident of sexual abuse by her son against the complainant.
In the course of the trial (and as noted by Syme DCJ), the applicant stated on many occasions that he suffered from memory loss as a result of work related stress. The stress had increased since he was charged with the current offences.
It can be noted that Syme DCJ stated that she made allowances in the running of the trial and was careful to allow the applicant to give his evidence sequentially, in narrative form, and if there were any interruptions to remind him where he was beforehand. Her Honour stated:
"I did not observe any difficult either with his level of organisation or his short or long term memory. I also observed that his character witness, [PR], with whom he worked at Cooma, said that she had never observed any memory problem and that he had very good attention to detail and recollection as was required for his employment.
To my observation he had good recall for details of prior events and conversations. He gave a very detailed history of his relationship with [the complainant's] mother, including details relating to the mother's immigration status, and paperwork required before hand. Throughout his evidence he gave very detailed evidence recalling not only the names of various people he had spoken to either from his employment or DoCS or the school, over the years, but also gave concise and he said verbatim record of those conversations. I did not at any time observe him to be suffering [from] any disadvantage or difficulty in either expressing himself or recalling any part of the evidence either as it was given or recalling it later. He only required prompting with respect to putting dates on particular events. I have not summarised all of his evidence as much of it related to issues that do not appear to be relevant although I have taken a very generous view of relevance when it came to evidence that [the applicant] wished to put before the court. He did not always take directions as to what the court considered to be relevant.
His degree of organisation appeared to be impeccable. Never the less the trial proceeded slowly, in order to give him ample time to organise himself. If he asked for more time he was given that time he requested."
As to the applicant's examination of both Jennifer and Lilith, her Honour stated:
"As both women were important witnesses for the Crown, I allowed significant evidence concerning those two witnesses to be led by [the applicant] sometimes over objection from the Crown, with the understanding that some of it may become relevant and to avoid unnecessary delay. In that way the history of the relationship between the adults took a considerable part of the evidence, but in order to consider the credibility of the complainant's evidence, this was necessary."
In the course of the applicant's evidence he outlined how his work took him and the family to different locations. He often worked night shifts as a security officer for a federal defence facility. After he and Lilith married, they moved to Cairns. The complainant was born in Queensland. The applicant gave evidence that his wife called the police on more than one occasion despite his claim that there was never any physical or verbal aggression. In mid-2003, the family moved to Sydney and lived with the applicant's parents in Punchbowl where they remained until 2008.
In December 2008, an Apprehended Domestic Violence Order (ADVO) was sought by Lilith against the applicant. The applicant contested the circumstances surrounding the obtaining of the ADVO and Syme DCJ determined that it was neither possible nor relevant to make a finding as to the allegations underpinning it. However, it is of note that the ADVO was taken out at Campsie Police Station. The applicant contended the ADVO was orchestrated by Jennifer, and that Campsie Police Station was chosen because she had a personal relationship with a police officer at that police station. This was denied by Jennifer. In her evidence, Lilith stated that she chose Campsie Police Station because it was close to Punchbowl where the family resided. Syme DCJ noted "This makes sense."
The applicant gave evidence that the family eventually moved out of the Punchbowl home and into accommodation near Campbelltown. There were several separations during the marriage, with the final separation occurring in about January 2011.
Syme DCJ found that the applicant had gone out of his way to present Lilith in as bad a light as possible to the Court, and that his "casual lies" to the Court diminished his credibility. Syme DCJ noted, as an example, the following:
"[The applicant] holds great bitterness towards [h]is wife, although he denied this. His character witness Mr [V] put this issue beyond doubt, when he told the court that [the applicant] had told him all about it and show[ed] him an affidavit prepared by [the applicant] in which [Lilith's] lies to the department of immigration and apparent bigamy were exposed. It may well be that [the applicant] feels that he has been lied to by his wife, however, it does him no credit to pretend that he has not gone out of his way to place her in as bad a light as possible, with the court, and with others. Such casual lies to the court diminish his credibility."
Another example of a "casual lie" included by Syme DCJ was that the applicant stated under oath that at the beginning of the trial he and his partner were sleeping in his car because of renovations being undertaken on the Punchbowl home. However, the applicant's mother gave evidence that he and his partner were both residing in the Punchbowl home. Syme DCJ gave other examples of such minor lies which her Honour indicated had the effect of diminishing the applicant's credit and credibility.
Syme DCJ also referred to the evidence of several character witnesses called by the applicant being his brother, his mother, a council officer from Wentworth who worked with the applicant there, several people who worked with the applicant at Cooma Council, Mr S (a local minister) who assisted in caring for the complainant after school at Wentworth, and the applicant's current partner. Most of this evidence went to these witnesses' observations as to the apparent normalcy of the relationship between the complainant and the applicant. Mr S' evidence has been referred to in part above. He had described the complainant as a "very strange" and "confused little girl", and "all she did was talk about how ill […] she was treated by her mother." Mr S described that the complainant was not only confused but untrustworthy, he noted the stories about her mother were like a repeated story. Some aspects were contradictory, and he formed the view that she was not always truthful.
It was noted by Syme DCJ that the observations of the character witnesses were interesting but did not carry a great deal of weight with respect to the specific allegations made by the complainant. The evidence from the complainant was clear that she did not disclose the problems with her father to anyone before 8 July 2013 for reasons that she had provided. Her Honour stated:
"I do not doubt that [the applicant] fed and accommodated his child appropriately during that period of time. Such an observation is of little assistance in the current case. The assaults were said to have occurred at night, when the child and the accused were alone in a cabin or alone at Punchbowl. There was no opportunity for any of the citizens of Wentworth to observe the child immediately after an assault occurred and assess her state of presentation at that time."
Syme DCJ noted that the applicant raised some issues in closing submissions which she went on to address. Her Honour stated:
"He submitted that he helped [Lilith] in her time of need and this shows how he cares for people. I have found this not to be the case. He submits that his job role was working side by side with police and this does appear to be the case and underlines why [the complainant] was so reluctant to tell anybody about the assaults. He submitted that there were no expert medical reports proving the assaults by him and this is an accurate statement. A medical examination which would only have been able to be conducted some months after the assault would not be expected to produce any evidence therefore this lack of evidence is insignificant. He pointed out that sexual assaults against [Jennifer] had never been proven. I accept this and say that those alleged assaults are irrelevant to my considerations. He referred in detail to actions against him by his sister and submitted that she had worked on numerous occasions to force separations between himself and other partners in the past, and between his current family members. I have referred to this issue in my reasons. He pointed out that his sister was reluctant to come to court and this is true however she did, and was made available for cross examination. I find that the reasons for her reluctance were not specifically due to this case.
[The applicant] said that there were inconsistencies in [the complainant's] evidence relating to which child she had played with and the exact layout of the cabin but I have not found these to be significant. [The applicant] asked rhetorically why she would come to the father's bed when she had her own bed and [the complainant] gave evidence in relation to this. He pointed out that a condom was mentioned in the second interview but not the first interview however I have dealt with this as the condom was referred to in the conversation with SC Evans. He submitted that the second interview was not conducted lawfully but I have found that it was, as the Children's Criminal Procedure Act does not apply. He said that Campsie police are biased but there was no evidence of this. He said that [the complainant's] mother needs custody of her to avoid deportation but there was no evidence of this. He submitted that on the whole the allegations of the child were as a result of parental alienation caused by a conspiracy between the child's mother and his sister and presumably the child. There is no evidence of this.
During the course of these reasons for decision I have made findings concerning the honesty and accuracy and reliability of the complainant's evidence. I have made finding[s] that her evidence can be accepted at the very high standard required in criminal proceedings and have given reasons for that. With respect to each of the primary charges save for count 13 and this is a matter of detail and inference. I find that there is compelling evidence as alleged by the Crown. I do not accept the evidence of [the applicant's] denials. His credibility is questionable in many areas and I find he did not tell the truth in relation to his sexual interest in the child."
[2]
The verdict
The trial judge found the applicant guilty of all but one of the substantive charges (that is, Count 13 - but found him guilty in relation to the alternative Count 14).
[3]
The sentence
The applicant was sentenced on 10 February 2017 to imprisonment for 14 years commencing on 22 July 2016 and expiring on 21 July 2030 with a non-parole period of 9 years and 9 months expiring on 21 April 2026.
[4]
Appeal to the Court of Criminal Appeal against conviction and sentence
On 20 September 2018, the applicant sought leave to appeal on four grounds - the first three of which went to the conviction appeal as follows (the fourth one being an appeal in relation to the sentence):
1. The trial judge failed to provide procedural fairness to the unrepresented applicant (in particular, the primary judge failed to assist into admission of evidence recorded telephone conversations which may have been recorded unlawfully).
2. The trial judge erred in finding Count 14 of the indictment proved on a factual basis not relied upon by the Crown.
3. The primary judge failed to scrutinise the complainant's evidence with care.
Leave to appeal was granted, but the appeals against both conviction and sentence were dismissed. The reasoning of the CCA so far as the first three grounds which went to conviction was as follows:
[5]
Grounds 1 and 2
Ground 1 was further particularised as follows:
"Particular one - her Honour failed to assist the admission into evidence of a recorded telephone conversation(s) between [Jennifer] and her mother without:
(a) hearing evidence whether the telephone conversation(s) were recorded unlawfully;
(b) determining whether to exercise the discretion under s 138 of the Evidence Act to admit the evidence.
Particular two - her Honour convicted the appellant of Count 14 on a case not relied upon by the Crown and not raised with the appellant/applicant.
Particular three - her Honour made findings in relation to the appellant/applicant's memory without reports relevant to this issue being tendered."
In relation to ground one particular one, affidavits from the applicant and Mary (his mother) were read on the appeal. The affidavits both attached identical transcripts of the six recordings of the phone calls. The applicant submitted that a key part of his defence was that he was a victim of a conspiracy between Jennifer, Lilith and the complainant to fabricate sexual abuse allegations against him and that the evidence could have had a substantial effect on Jennifer's credibility.
The CCA concluded that the evidence in relation to the six telephone conversations between Mary and Jennifer established that they were recorded (by Mary and/or the applicant) in contravention of the Surveillance Devices Act 2007 (NSW) and were therefore caught by the exclusionary provision in s 138(1) of the Evidence Act 1995 (NSW).
It was accepted by the CCA that the trial judge's explanation to the applicant about the potential admissibility of the recorded conversations under s 138 of the Evidence Act was incomplete. However, it concluded that the recorded conversations could not have affected Syme DCJ's findings about the credibility of Jennifer, the complainant or Lilith, nor could they have rationally affected the probability of the existence of any fact in issue. Essentially this was because the CCA found that the recordings were consistent with the evidence Jennifer gave at trial, could not have affected her credit, and were not capable rationally of supporting a suggestion that Jennifer had a role in coaching the complainant to make false allegations.
Ground one particular two was dealt with together with Ground 2, as the same submissions were relied upon in relation to both issues. Essentially, it was argued that the Crown case was that Count 14 had been committed (in Punchbowl) after the applicant had been in Cooma, but that the applicant's evidence was that he did not return to Punchbowl after he had been in Cooma.
The CCA found that the complainant's evidence was not that the Punchbowl incident was limited to an allegation that it had occurred after the applicant had travelled to Cooma. The applicant had not shown any arguable forensic detriment was suffered by the applicant's attention not having been drawn more specifically to the trial judge's proposed finding.
In relation to ground one particular three, the CCA found that the trial judge had explained to the applicant that medical reports about his memory (that were before her Honour on the applicant's application for a judge alone trial) were not before her Honour for the purposes of the trial. The CCA was satisfied that her Honour had explained to the applicant that if he wanted the reports in evidence he would need to tender the reports and demonstrate that they were relevant to an issue in the trial. The trial judge had asked the applicant whether the reports were relevant to the issues in the trial to which he responded, "I couldn't say if [they are] or not."
The opinions in one of the reports were entirely dependent upon self-reporting by the applicant and the limited observations of the applicant in a single consultation in December 2015. No cognitive tests were conducted and Syme DCJ had the opportunity to observe the applicant over the course of the trial which was significantly more recent. The applicant had raised concerns about his memory loss and the trial judge had made relevant allowances. Further, the CCA observed that senior counsel for the applicant could not identify the issue to which they were relevant on the appeal, and the CCA could not discern for itself any such relevance. The applicant had not demonstrated that the trial judge had erred in failing to admit the reports into evidence.
[6]
Ground 3
The applicant alleged that the primary judge had failed to scrutinise the complainant's evidence with care by failing to take into account that additional and more specific allegations were made in the second interview than had been made in the first interview.
In rejecting this ground, the CCA noted that the trial judge had considered these matters and had found the reluctance of the complainant to disclose her complaints during her first interview as "obvious". The CCA also found that it was not only "open" for the trial judge to find that the complainant had only spent half an hour together with Jennifer and that there was not enough time for them to conspire, but that the finding was "correct" on the available evidence.
[7]
The Part 7 application
The application has been made by way of a 56 page application dated 3 November 2021 (filed on 31 January 2022), together with a large amount of supplementary material filed on 22 February 2022:
1. A letter addressed to the Chief Justice of New South Wales dated 10 February 2022;
2. A letter addressed to the Chief Justice of New South Wales dated 12 February 2022;
3. A letter addressed to the Chief Justice of New South Wales dated 15 February 2022;
4. A document entitled "Merit #3 [Alexander] v R HCA" comprising 45 handwritten pages; and
5. Various other documents including, for example, annotated trial transcript.
The application includes a number of complaints which the Attorney General has categorised as broadly relating to: (a) the alleged failure of the trial court to accord him procedural fairness; and (b) alleged breaches of prosecutors' duties. I accept this as a useful categorisation of most of the complaints and will largely adopt those two categories as covering most of the complaints raised. From my examination of the material, I have also gleaned a number of other complaints which I will deal with under a heading "Other miscellaneous complaints". Some of the complaints fall under more than one heading but the categorisation provides a convenient starting point.
[8]
Consideration
I will now consider each of the issues raised.
[9]
(a) The applicant was forced to represent himself, contrary to Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 ("Dietrich") and the International Covenant on Civil and Political Rights (ICCPR)
The applicant complains that he was "forced" to represent himself contrary to Dietrich and Art 14 of the ICCPR. He cites, in support, an exchange between himself and Syme DCJ on 27 June 2016 in relation to his legal representation. The applicant had been represented by Mr Licha of counsel at mentions prior to trial.
"ACCUSED: Your Honour I probably have about $200 in my pocket at the moment in my accounts, I've got outstanding bills and so forth and--
HER HONOUR: Simple question, is it the case you haven't paid [Mr Licha]? He asked for money before the trial started?
ACCUSED: I don't have the money to--
HER HONOUR: Simple question, I don't need the explanation--
ACCUSED: Sorry.
HER HONOUR: --really, I don't need the explanation because the explanation has got nothing to do with the decisions that I will make."
This passage must be seen in a broader context. That context is included in Syme DCJ's judgment on 28 June 2016 in relation to the applicant's application for a judge alone trial ("the Judge Alone Trial Judgment") and includes the following:
1. The trial was vacated on two occasions (15 September 2014 and 13 April 2015) in order to facilitate the applicant obtaining legal representation given that the applicant had been refused Legal Aid.
2. On 25 September 2014, the matter was mentioned in the District Court, at which time the Court made orders standing the matter over to the Registrar to seek pro bono assistance, and made a notation that a trial date must be allocated on the next date (14 October 2014) if no Legal Aid was available.
3. In September 2015, a third trial date was vacated due to concerns about the applicant's fitness to stand trial.
4. The applicant was seen by a psychiatrist, Dr Adams, who provided a report in February 2016. On 27 May 2016, whilst the applicant was legally represented, Blackmore DCJ refused to vacate the fourth trial date, being 27 June 2016.
It can be seen from the transcript of proceedings before Syme DCJ on 28 June 2016 that the issue of the applicant's lack of legal representation was carefully considered by the trial judge in the context of his application for a judge alone trial and a chronology which had been provided to the Court on 27 June 2016, of which the applicant had a copy. That he was refused Legal Aid, and also had no success in obtaining a lawyer through the Law Society's pro bono scheme was noted by Syme DCJ. At one point the following exchange was recorded:
"HER HONOUR: Am I correct, and I'm not sure if I am correct or not, so please tell me if I'm not - am I correct that your financial position is such, you say, that you can't afford a lawyer anyway, even if you were given more time to do so?
ACCUSED: I'd have to save up, your Honour.
HER HONOUR: As I understand it, you've had nine months to save up for the gentleman who eventually didn't turn up yesterday but you weren't able to manage that.
ACCUSED: That's correct, because I've outstanding debts that I'm also, you know, trying to battle.
HER HONOUR: That's been the situation which seems to have existed for a long time.
ACCUSED: It eventuated all because, you know, someone departed the relationship, and here I am today."
There was then further detailed discussion about the applicant's financial position, and then further submissions were sought from the Crown in relation to whether or not the trial should be further adjourned given his lack of representation.
In the course of the Judge Alone Trial Judgment (which also dealt with the most recent adjournment application), Syme DCJ found that the applicant had ample time, since 2014, to arrange for legal representation if he had made it a priority. Her Honour stated the following:
"With respect to what I have assumed is the application for an adjournment of the current hearing, the Crown points out the history of this matter as I have just related and is contained in voir dire exhibit 2, that is, the chronology. The Crown points out the efforts that they have made to ensure that the accused has been given sufficient time to arrange legal representation, if he wished to do so. [Alexander] told the Court yesterday and today that he has been saving to get legal representation but does not have money. This position seems to be at odds with his advice that he is fully employed and has been refused legal aid, on the grounds that he does not qualify under the means test.
[…] I find that [Alexander] has had ample time to arrange representation, at least since 2014, if he made it a priority. I do not know exactly what his financial position is; however, he is working fulltime and I would have thought that, if being legally represented was a priority, arrangements could have been made over the last two years. [Alexander] referred to Mr Licha agreeing to being briefed directly and to accept reduced fees for acting for him but, even on that basis, apparently [Alexander] has found himself not in a position to make legal representation a priority."
Syme DCJ was clearly cognisant of Dietrich as can be seen from the following passage from the Judge Alone Trial Judgment:
"I am cognisant of the principles and, as enunciated in Dietrich's case, the principal requirement is for a person, if necessary, to be given the opportunity to receive funding from the public purse. [Alexander] has had that opportunity. He has either not taken advantage of it or has decided not to pursue it. He has, it would seem, if he made it a priority, the ability to obtain representation for himself. Dietrich's case, however, confirmed the principle that it is the Court's duty to ensure that an accused receives a fair trial. In this case, I am not satisfied that, even given further time, the accused would arrange representation for himself. I am not satisfied from what he told me, that he either wishes to or would be successful in obtaining legal aid. He will remain unrepresented. Therefore, it becomes the duty of the Court to ensure that he receives a fair trial, and there are many ways a Court can do that.
As I have advised [Alexander] on a couple of occasions so far, it is the Court that is charged with the responsibility of ensuring that he has a fair trial. As he would be unrepresented, this obligation of the Court is even more pronounced; that is, in part, to anticipate potential issues for him to consider, as I have done, yesterday and today, and arranging, as I have done yesterday, for him to some [sic] pro bono assistance with respect to an issue that I thought he probably should consider. He has had that legal advice, I note, and I thank Mr D'Souza, who I note is still in Court, for providing that advice this morning."
(Emphasis added.)
A few further observations can thus be made. The Dietrich principle applies where an accused who is charged with a serious offence is unable to obtain representation "through no fault on his or her part". In such circumstances, absent "exceptional circumstances", the trial should be adjourned, postponed or stayed until legal representation is available. In Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at [21], the High Court considered the phrase, "through no fault on his or her part", and concluded that the test focused on the reasonableness of the accused's conduct in all of the circumstances, and excluded the situation where it was fair to say the accused "by his gratuitous and unreasonable conduct, had been the author of his own misfortune".
Syme DCJ was clearly aware of the relevant principles. The applicant was afforded significant time to obtain legal representation, with the trial being adjourned a number of times in order to accommodate his efforts. The decision to allow the trial to proceed with the applicant representing himself was well open to her Honour.
It is also important to note that the applicant was represented by experienced senior (and junior) counsel on his appeal. The issues on the appeal included whether or not procedural fairness was provided to the applicant by Syme DCJ in the trial in a particular respect (see Ground 1 of the CCA appeal above). It can be assumed that if other issues going to procedural fairness were reasonably arguable as occasioning a miscarriage of justice, such issues would have been put on his behalf at his appeal.
For the above reasons, the applicant's argument that there was a miscarriage of justice on the basis of Dietrich must be rejected.
I now turn to the applicant's argument in relation to Art 14 of the ICCPR. Article 14(3)(d) provides, relevantly, for the right of a person in the determination of a criminal charge:
"[…] to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it."
The applicant's argument based on the ICCPR is not persuasive for two reasons. First, the evidence before Syme DCJ did not establish that the applicant did not have sufficient means to pay for his representation. Second, the ICCPR does not give any enforceable right in the justice system of New South Wales. The argument based on the ICCPR therefore must be rejected.
[10]
(b) Syme DCJ allowed ten charges to be added on the first day of the trial, concealed the introduction of the new charges from the printed transcripts, and falsified the arraignment date
The applicant claims that Syme DCJ permitted 10 new charges to be added on the first day of his trial and that her Honour concealed the introduction of those charges from the transcripts, as well as falsifying the arraignment date. It is claimed that the addition of his charges at this late stage deprived the applicant of the opportunity to obtain legal advice.
The applicant relies on the following exchange in support of the assertion that he did not receive a copy of the indictment until the first day of the trial:
"HER HONOUR: So there are a number of charges on the indictment. Have you got a copy of that indictment for [the applicant]?
CROWN PROSECUTOR: I have."
As to the allegation that Syme DCJ concealed the addition of further charges, the applicant points to the verdict judgment where Syme DCJ states that the applicant was arraigned on "14 June 2016", a date on which the applicant claims he was not in Sydney. The applicant claims that "[t]he Judge clearly knew this was misleading as it was undertaken on 27 June 2016 with 10 new charges", and that the date of 14 June 2016 was "fabricated by the trial judge […] to help protect her Honour's Prejudicial Bias towards the accused." He further suggests that Syme DCJ has possibly committed a criminal offence.
These claims must be rejected. The indictment was filed in the District Court on 29 April 2016 - apparent from a stamp appearing on it. The charges in that document include the 10 charges in question. It is unsustainable to claim that they were not added until 27 June 2016.
The reference to 14 June 2016 appears to be a simple error. To suggest that a serving District Court judge has deliberately fabricated a date is a serious allegation and one which requires strong evidence to sustain. There is no such evidence. Further, the error has no consequence for the fairness of the trial. The applicant was represented up until 27 May 2016 and had legal assistance in the weeks leading up to the trial. The records of the Office of the Director of Public Prosecutions (ODPP) show that a copy of the indictment was served on the applicant's counsel on 28 and 29 April 2016. There is no basis to infer that the applicant was not provided with the indictment by his then legal representative. Further, the 14 counts in the indictment reflected the factual allegations raised in the first and second interviews with the complainant. There is no suggestion he was not clearly aware of the allegations against him contained within these interviews. No doubt or question within the meaning of s 79(2) of the Act has been raised by this complaint.
[11]
(c) The applicant did not receive daily transcripts during the trial and did not receive trial transcript until after his appeal to the CCA
The gravamen of this claim is that the applicant suffered a forensic disadvantage during the trial because the trial judge and the prosecutor did not allow or offer him daily transcripts, and that if he had received them, he would have noted that Lilith stated on oath that she was married at the time she met the applicant.
First, it can be noted that Lilith stated that she "told him" she was married (Tcpt, 7 July 2016, p 142), not that she was married.
Second, whether or not the applicant had transcripts of the trial, the applicant fails to articulate how this raises a "doubt or question" as to his guilt, as to any mitigating circumstances, or as to any part of the evidence in the case. At some points in his application the applicant appears to point to Lilith's "bigamy" as somehow undermining his convictions and indicating there was a miscarriage of justice. However, it can be noted that this portion of the transcript does not prove Lilith's "bigamy". And further, whether or not Lilith was a bigamist does not go to the issue of whether or not the complainant's evidence should have been accepted by Syme DCJ.
Third, and importantly, the issue of whether Lilith lied in immigration paperwork and what relevance that would have in the criminal trial was squarely before Syme DCJ (Tcpt, 28 June 2016, pp 40-43). The applicant confirmed to Syme DCJ that the relevance of the issue was that in order for Lilith to gain some benefit with immigration the complainant was telling a whole series of untruths and lies because "she has been convinced, coerced, brainwashed" by Lilith. As set out above, Syme DCJ directly addressed the contention that the evidence of the complainant was fabricated. As also set out above, her Honour noted that it was possible for parents of children, especially when there are acrimonious family relationships, to coach or convince children to make false allegations against a family member. However, her Honour found in this case there was no evidence of coaching between the aunt or the mother and the complainant.
Fourth, it is apparent that senior counsel representing the applicant in the CCA did have access to the trial transcript prior to the appeal and did not raise any ground based on this aspect of alleged failure to accord procedural fairness.
Accordingly, nothing raised by this complaint suggests that there is a doubt or question as to the applicant's guilt.
[12]
(a) The prosecutor contravened various provisions of the Criminal Procedure Act 1986 (NSW)
The applicant contends that the prosecutor contravened various provisions of the Criminal Procedure Act. However, the sections referred to by the applicant do not apply for one reason or another.
Sections 61, 62, 63 and 67 as they now read were not in force at the time of his trial. They were introduced by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), which commenced on 30 April 2018.
Sections 175, 183, 184 and 185 only apply to summary proceedings.
Accordingly, this claim is rejected.
[13]
(b) Failure to disclose evidence prior to trial (s 142 Criminal Procedure Act): the video of Lilith; the COPS entries; the statement of facts
[14]
The video of Lilith
The applicant refers to s 142 of the Criminal Procedure Act in support of his claim that the prosecutor failed to disclose to him a "video" of Lilith, as well as the other evidence mentioned which will be dealt with in turn.
The "video" in question appears to be a video allegedly emailed to Lilith on 8 August 2012 showing her in an act of sexual intimacy.
The video was not tendered by the Crown Prosecutor in the course of her examination in chief of Lilith. It is apparent that the Crown Prosecutor did not have a copy of the video prior to the trial. Rather, that the video was still in existence only came up in the course of cross-examination of Lilith when she suggested she might have a copy of the video. The suggested relevance went to the complainant's credibility including because there were potential discrepancies in the complainant's description of the video and its actual content. This issue was addressed by the trial judge in the course of the verdict judgment.
There is clearly no substance to the complaint. It is apparent that the Crown Prosecutor did not "disclose" the video prior to the trial because Lilith only indicated she had a copy during the course of her cross-examination. Further, the fact that it was not disclosed at an earlier point in time does not raise a doubt or question as to the applicant's guilt, or as to any mitigating circumstances or any part of the evidence in the case.
[15]
The COPS entries
The COPS entries were obtained during the trial at the instigation of the trial judge (see above at [22]). The obtaining of the documents arose from Syme DCJ's concern that the applicant not be disadvantaged because he was not legally represented. The applicant was given time to look at the COPS material and certain excerpts from 2013 were tendered at trial by the Crown Prosecutor (Exhibit 10). Syme DCJ gave the applicant an opportunity to object to the tender, and the applicant did not object. In the verdict judgment, Syme DCJ recorded that the applicant was "keen" to tender the COPS material himself. The applicant tendered Exhibit L which included a COPS excerpt relating to a report apparently made by Jennifer in June 2013 that the complainant was being sexually assaulted by the applicant (which Jennifer denied making) as well as various complaints made by Lilith between February and July 2013.
There is no substance to this complaint either. The COPS material was obtained in order to ensure fairness to the applicant. The applicant's complaint does not give rise to a doubt or question as to his guilt, nor does it present as a mitigating circumstance in the case, nor as to any part of the evidence in the case.
As to the statement of facts, the applicant has failed to articulate the relevance of this issue, and none is apparent on the material.
[16]
(c) The applicant was not provided an opportunity to view the complainant's recorded interviews prior to trial
This complaint, which was also raised at trial, is that the applicant was not permitted to view the recording of the complainant's interviews prior to trial.
It is apparent from the District Court outcome details which record that on 13 November 2015, Judge Scotting recorded the following in the "Orders" section of the Results sheet:
"Accused to make arrangements to view DVD of ERISP with complainant with OIC of investigation."
In the verdict judgment, Syme DCJ stated:
"The Crown confirmed that the only evidence in chief they were calling from the complainant was as previously served in 2 interviews with police, both of which were available in transcript form and had been available to [the applicant] for at least several months. In closing submissions [the applicant] raised that he had not been afforded a viewing of the video of the second interview, but I was satisfied that he had received proper notice and advice from the court in November 2015 of how to access this video if he wished to do so. He did not claim that he was disadvantaged."
The procedure undertaken in relation to providing the applicant with an opportunity for the viewing was unremarkable and in accordance with regular practice. This complaint does not raise a doubt or question pursuant to s 79(2) of the Act.
[17]
(d) The prosecutor failed to call several relevant witnesses including Detective Senior Constable Kelly Parker, Constable Fiona Long, Constable Ata, and Dr Adams
Detective Senior Constable Kelly Parker was a plain-clothes Constable who, together with Constable Proctor, conducted the complainant's second interview, participated in the arrest of the applicant, and was a case officer on the matter for a period of time before she left on leave. The applicant has failed to articulate why the failure to call this witness raises a doubt or question as to his guilt, or as to any mitigating circumstances or any part of the evidence in the case, and it is not apparent from an examination of the material provided on the application that such a doubt or question arises.
I am also unable to discern why the failure to call Constable Fiona Long raises any such doubt or question in accordance with s 79(2) of the Act.
Constable Ata was not called as it was apparent from the two medical reports tendered by the Crown that she was unfit to appear in Court. The issue was raised with the applicant as follows:
"HER HONOUR: Constable Evans gave evidence as to what happened all of that time. You had Constable Ata's statement - was there any difficulty you thought about not having Constable Ata here to cross-examine? I understand she's on medical leave or something.
ACCUSED: Nothing that comes to mind, your Honour."
Her Honour also observed that "[i]n relation to Constable Ata, [Alexander] it seems to me that there can be no conclusions drawn against the Crown for not calling Constable Ata. She has reason not to be here and her evidence has been otherwise dealt with by Senior Constable Evans." No doubt or question pursuant to s 79(2) of the Act is raised.
The issue of the failure to call Dr Adams, a psychiatrist, was dealt with by the CCA in ground one particular three, and no doubt or question pursuant to s 79(2) of the Act is raised.
[18]
(e) The prosecutor misleadingly adduced selective crime scene photos
It is contended by the applicant that the prosecution adduced three photos of the alleged "crime scene" interior at Wentworth to give the false impression that there was only one bed within the cabin (Exhibit 5).
There is no basis to this complaint. In cross-examination of the complainant, it was made clear that there were four bunk beds in the cabin as well as a bed for the applicant. The police photographer was cross-examined by the applicant, and the applicant also tendered a further 11 photos of the cabin (Exhibit D). The issue of the police photos failing to show the full number of beds in the cabin was addressed by the applicant in his closing address. The evidence in the trial was clear that there were multiple beds in the cabin.
This complaint does not raise a doubt or question within the meaning of s 79(2).
[19]
(f) The prosecutor failed to tender the fitness to stand trial report
The applicant contends that the prosecutor should have tendered the report obtained as to his fitness to stand trial. There is no cogent reason advanced why this should have been done, given the question of fitness was addressed prior to the trial commencing. Other issues involving the applicant's memory and capacity during the trial have been dealt with above. This complaint does not raise a doubt or question within the meaning of s 79(2).
[20]
(g) The applicant did not receive all documents, namely documents from Family and Community Services. The prosecutor stated that the subpoena was from 2014 and that access was granted to every party, but the prosecutor was not acting for the prosecution until 2016 and would not have known
One aspect of this complaint appears to be that the prosecutor somehow misled the Court by informing the Court that access to a particular subpoena was granted at a time prior to the prosecutor's personal involvement in the trial. This complaint is baseless. It is regularly the case that legal practitioners inform the Courts as to what has happened in relation to a matter on the basis of file notes or other records from a file rather than personal experience. The inference that this occurred in the instant case is clear.
The other aspect of this complaint is that the applicant contends there were documents in existence from Family and Community Services which were not made available to the applicant. There is no evidence that this occurred. This complaint does not raise a doubt or question within the meaning of s 79(2).
[21]
(h) The ERISP interviews of the complainant were tendered without a police statement which constituted a miscarriage of justice Director of Public Prosecutions (NSW) v Chaouk [2010] NSWSC 1418 ("Chaouk")
This complaint is entirely misconceived. Not only did Chaouk relate to summary proceedings, it did not deal with the situation of a child complainant witness where different procedures apply. Furthermore, the child complainant in this case was available for cross-examination, and the applicant, through his representative, cross-examined her. This complaint does not raise a doubt or question within the meaning of s 79(2).
[22]
(i)The applicant was required to sit at the back of the Court out of camera view during the complainant's evidence which was a breach of the Criminal Procedure Act
The applicant has failed to indicate which provision of the Criminal Procedure Act was breached, and if there was such a breach why it would raise a doubt or question within the meaning of s 79(2). This complaint is rejected.
[23]
Other miscellaneous complaints
Throughout the documentation provided by the applicant, there are numerous handwritten complaints/comments on various aspects of the evidence which are said to be unfair, and which go to show the applicant's innocence. To the extent that any further complaints can be conveniently isolated, and have not otherwise been dealt with, they will be dealt with below. Other than these matters being dealt with below, it can be noted that many of the complaints/comments go to the alleged conspiracy between Jennifer and Lilith to incite/encourage/coach the complainant to make false complaints against him. This issue has been discussed above, and as noted was fully dealt with by the trial judge in the verdict judgment, and consequently rejected.
[24]
(a) The applicant's lawyer appointed for the appeal was a named male solicitor from a named firm of solicitors. The male solicitor is married to a District Court judge who works in the Downing Centre with Syme DCJ. The solicitor has refused to forward all the trial paperwork to the applicant to give to the Public Defenders' chambers since 2019
This is a baseless and misconceived complaint. There is no evidence to suggest that any such relationship had any impact upon any matter in relation to any aspect of the applicant's case. This complaint is rejected. It does not raise a doubt or question pursuant to s 79(2) of the Act.
[25]
(b) The Crown case proceeded to trial with no "prima face evidence" for the hope of conviction
Given this matter went on appeal to the CCA at which the applicant was represented on appeal by senior counsel, if at all valid this complaint would have been the subject of a ground or grounds of appeal. It was not. Further, my inspection of the material confirms that this complaint does not raise a doubt or question pursuant to s 79(2) of the Act and is rejected.
[26]
(c) The CCA "failed to notice the Crown's evidence was inadmissible under the Criminal Procedure Act and the Evidence Act 1995 (NSW) re Criminal Appeals Act s 6(1)"
This complaint has no discernible basis. It is rejected.
[27]
(d) Counsel at the CCA appeal refused to adduce "fresh" evidence which showed permanent scarring on the penis
The applicant has failed to make clear what relevance this evidence has. The applicant was represented on appeal, and the matter was not the subject of an application to adduce fresh evidence. It is also not apparent why such material would constitute "fresh" evidence and how it would have been admitted on appeal in any event. The applicant has failed to indicate any basis for why this complaint raises a doubt or question within the meaning of s 79(2). This complaint is rejected.
[28]
(e) There were no expert witnesses called when there should have been
From my examination of the material, no reason can be ascertained as to why expert evidence should have been called, nor why it would have been admissible, nor how it would raise a doubt or question within the meaning of s 79(2). Again, it is noted that the applicant was represented on appeal by experienced counsel who did not raise this issue as a ground of appeal. This complaint is rejected.
As a final observation, it can be noted that no other basis for raising a doubt or question within the meaning of s 79(2) is apparent from any of the other material filed by the applicant.
[29]
Conclusion
There is no reason to doubt or question the convictions of the applicant. The applicant was convicted after trial. He was self-represented at trial, but that came about after he was given appropriate opportunities to obtain representation over a period of years. He appealed to the CCA and was represented on that appeal by senior and junior counsel.
None of the matters relied upon raise a doubt or question as to the applicant's guilt in respect of his convictions.
The application is refused.
[30]
Endnotes
All the names used in this judgment are pseudonyms in order to protect the identity of the child complainant.
Alexander (a pseudonym) v R [2019] NSWCCA 79.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 04 May 2023
Parties
Applicant/Plaintiff:
Alexander (a pseudonym)
Respondent/Defendant:
R
Legislation Cited (9)
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017(NSW)
The relevant principles have been conveniently stated by Beech-Jones CJ at CL in GILLIES, Max Perry - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2021] NSWSC 1392 at [8]-[10]:
"First, an application under s 78 does not initiate a judicial proceeding but instead an exercise of administrative power (Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48 to 50; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [124]). In Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 (NSW) [2008] NSWSC 251 ('Holland'), Johnson J noted that s 78 is not intended to provide a convicted person with another avenue of appeal after the appeal process has been exhausted, nor an opportunity to run their trial again on the papers (Holland at [9]). Instead, his Honour observed that these applications are engaged where the criminal justice system has 'run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence' (Holland at [10]).
Second, the test to be applied in proceedings of this nature is whether it appears that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case (s 79(2)). Under the now-repealed, but similarly phrased s 475 of the Crimes Act 1900, it was said that the requisite view may be formed where the material submitted creates an 'unease or a sense of disquiet' in allowing the conviction or sentence to stand (Holland at [6], citing Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245). This requires available material which 'as a matter of practical reality' gives rise to the sense of unease or disquiet (Holland at [8]). That formula has been applied in applications made under s 79(2) (Holland at [6]).
Third, there is a degree of flexibility regarding the 'materials' which may be considered and the basis on which they are considered."
Further, in GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 at [137]-[139], Payne JA (Beazley ACJ agreeing) observed the following as to the test required by s 79(2) of the Act as to whether there is a "doubt or question as to the convicted person's guilt, [or] as to any mitigating circumstances":
1. The test is "not a demanding one" and is to be approached "with a view to the overriding purpose of providing a means to address doubts as to compliance with the principle that liberty should only be infringed upon the commission of a criminal offence if commission of the offence has been established beyond reasonable doubt";
2. "[T]he 'doubt' or 'question' the Supreme Court must harbour is one that applies to the finding of the applicant's guilt, as to any mitigating circumstances in the case or to any part of the evidence in the case"; and
3. "[T]he fact that the gatekeeper to either of the inquiries provided for by s 79 is the Supreme Court itself emphasises the importance of the role and ensures…that it is exercised 'responsibly and, no doubt, sparingly'."
Discretion to refuse to consider or otherwise deal with an application under s 79(3)
As set out above, s 79(3) confers on the Court a discretion to refuse to consider or otherwise deal with an application without deciding whether there appears to be a doubt or question as to guilt for the purposes of s 79(2). As stated by Basten JA in Clark v Attorney General of New South Wales [2020] NSWCA 70 ("Clark") at [5] (Macfarlan and McCallum JJA agreeing):
"The purpose of s 79(3) is tolerably clear: it is to ensure that the court has appropriate powers to dispose summarily of applications which might otherwise be described as frivolous, vexatious, misconceived or lacking in substance."
It was further observed by McCallum JA (Clark at [39]) that the "discretion conferred by s 79(3) to refuse to consider or otherwise deal with an application is not conditional upon the establishment of any particular matter". The matters stated in sub-ss 79(3)(a) and (b) "serve as a guide to the proper limits of that power but its exercise is not conditional upon their being satisfied. That is clear from the words 'without limiting the foregoing'." In particular, it is not necessary for the Supreme Court to be satisfied "that every piece of evidence or every paragraph of every submission put in support of the application was fully dealt with at the trial or on appeal" before the discretion can be exercised (Clark at [47]).
As stated by McCallum JA (Meagher JA agreeing) in GAR v Attorney General for the State of New South Wales (No. 3) [2020] NSWCA 179 at [142]:
"Part 7 finds its place within a suite of protections in the Crimes (Appeal and Review) Act and the Criminal Appeal Act against miscarriage of the processes of the criminal justice system. The object of providing 'a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence' referred to by Basten JA in Sinkovich is not unilaterally for the benefit of convicted persons. Just as a potentially unsound conviction should properly be the subject of inquiry or referral to the Court of Criminal Appeal, a sound conviction should stand, at some point finally so. The existence of the discretion not to consider a Part 7 application is an important and valuable aspect of the function conferred on the court by the Act."
In considering whether to exercise the discretion, the focus should be upon the "screening function" that s 79(3) serves (Clark at [46]).
Consistent with these principles, I have determined the matter on the papers. In doing so, I have read and considered all the submissions and documents provided by the applicant, as well as the submissions of the Attorney General.