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ALRAMADAN v DIRECTOR OF PUBLIC PROSECUTIONS [2007] NSWCCA 322 | Case summary | Zoe

NSWNSWCCA

ALRAMADAN v DIRECTOR OF PUBLIC PROSECUTIONS

[2007] NSWCCA 322

Court of Criminal Appeal (NSW)|2007-11-23|Before: Basten JA, Latham J, Rothman J

View on NSW Caselaw

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2007-11-23

Before

Basten JA, Latham J, Rothman J

Source

Original judgment source is linked above.

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Appeal Outcome: Special leave dismissed by the High Court - 2 December 2008 - [2008] HCASL 575

New South Wales

Court of Criminal Appeal

CITATION: ALRAMADAN v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2007] NSWCCA 322

HEARING DATE(S): 30 August 2007

JUDGMENT DATE:

23 November 2007

JUDGMENT OF: Basten JA at 1; Latham J at 60; Rothman J at 61

DECISION: (1) Grant leave to appeal against conviction, if required.

(2) Dismiss the appeal.

CATCHWORDS: CRIMINAL APPEAL – rejection of expert evidence tendered by accused – relevance of expert evidence – miscarriage of justice – operation of proviso – Criminal Appeal Act 1912 (NSW) s 6(1) - EVIDENCE – expert evidence – relevance – basis of rejection – Evidence Act 1995 (NSW), ss 55, 79 and 80.

LEGISLATION CITED: Crimes Act 1958 (Vic), s 568

Criminal Appeal Act 1912 (NSW), ss 5, 6

Evidence Act 1995 (NSW), ss 46, 55, 56, 79, 80, 135, 137

CASES CITED: Bray v Ford [1896] AC 44

Conway v The Queen (2002) 209 CLR 203

Darkan v R (2006) 227 CLR 373

Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373, (2006) 165 A Crim R 151; (2006) 205 FLR 217

Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318

M v The Queen (1994) 181 CLR 487

MFA v The Queen (2002) 213 CLR 606

MWJ v The Queen (2005) 80 ALJR 329

R v Birks (1990) 19 NSWLR 677

R v Grills (1910) 11 CLR 400

R v Liristis [2004] NSWCCA 287, (2004) 146 A Crim R 547

Rend v The Queen [2006] NSWCCA 41, (2006) 160 A Crim R 178

Weiss v The Queen (2005) 224 CLR 300

Williams v The Queen (1986) 161 CLR 278

PARTIES: Rafid Ghani Alramadan - Applicant

Director of Public Prosecutions (NSW) - Respondent

FILE NUMBER(S): CCA 2007/3316

COUNSEL: S.J. Odgers SC - Applicant

D.M.L. Woodburne - Respondent

SOLICITORS: P.J.N. Moffitt - Applicant

S. Kavanagh, Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION: District Court

Before considering the substance of Dr Nicholls’ proposed evidence, it is necessary to give some further explanation of the issues which arose at the trial. As noted above, the prosecution case asserted that the Appellant had had intercourse with the complainant whilst she was lying on the examination table in his surgery. He denied that any such sexual activity took place. On the complainant’s evidence, when the Appellant’s hand moved to the area of her vagina, she had sought to resist him, despite the effect of the muscle relaxant, by crossing her legs at the ankle. He had then kneeled on the examination table and pushed her legs apart with his right knee. The Appellant not only said that this did not occur, but said that he had physical disabilities which would have prevented him undertaking such an action.
The indictment was presented on Tuesday, 12 September 2006, but a voir dire followed, as a result of which the complainant was not called to give evidence until after lunch on the second day, 13 September. Her evidence continued into the next morning, the critical cross-examination as to the sexual activity occurring on the following day. Counsel for the Appellant commenced by putting to the complainant a quite different account from that which she had given in evidence-in-chief, which was substantially the account later given by the Appellant. Briefly, that account involved the complainant moving over to the Appellant, who was seated at his desk in the consulting room, kissing and hugging him and attempting to sit on his lap. She then sought to show him a lesion on the front of her thigh, which she was concerned might be inflamed. She then sat on his lap and masturbated him. For some reason which remained obscure, the Appellant then obtained a condom from a drawer in his desk and after a short time ejaculated into the condom. She then removed the condom and tried to place his flaccid penis inside her vagina. No further sexual activity took place, but she complained of an inflexible right knee, for which the Appellant gave her an injection of diazepam.
The complainant denied each aspect of this account. She was then cross-examined as to the account she had given in chief. In particular, the following exchanges took place (Tcpt, 15/09/06, pp 28-29): “Q. You did cross your legs? A. I did cross my legs but I had – I had no strength to keep them crossed and he just opened them with his hand, there’s just – there was no strength there to hold them together. I tried squeezing them together. By this time I had no, no strength no – I – I was conscious of what was going on but I had no strength.

The prosecutor then sought to give a description of the demonstration in the Court (which was agreed to by counsel for the Appellant) (at p 46 (40)): “First I asked the doctor to … bend his left leg which he did, he brought the lower part of his leg up towards his buttocks area, I suppose, or thigh area. And then he demonstrated after that with his left knee bringing his knee up and having problems with that, I think, and bringing it in in a – I suppose, a reverse L shape in front of his body.”
Further evidence consistent with that of the Appellant, was sought to be led from Dr Nicholls. In a two page letter to the Appellant’s solicitors he noted that he had interviewed and examined the Appellant, at the request of the solicitors, on 30 August 2006, some two weeks before the commencement of the trial. He then set out the results of his examination and his comments on functional impairment resulting from the injuries noted.
The first part of the letter referred to the injuries of which the Appellant gave evidence. Some of the description is expressed to be findings on examination, but most is clearly a record of the history given by the Appellant. For example, Dr Nicholls reported, in relation to the fractured left kneecap, that “[s]ince the motor vehicle accident there has been a persistent infection in the area of the patella requiring a dressing”. How he came to that opinion is not identified. The substance of the evidence, however, sought to be relied on was presumably not the descriptive part of his report, but his opinion which was expressed in two parts and may be set out in full: “There is marked residual impairment of left leg function. The major impairment arises from virtual paralysis of the quadriceps muscles of the left thigh, which in addition to excision of the patella has effectively made the left knee ‘flail’. This means that it is very difficult for Dr Rafid [sic] to climb stairs because of complete loss of stability once the knee is flexed. Getting on and off an appliance at height requires assistance either from the arm or the right leg to lift the flail leg up and it would be difficult to manoeuvre the leg once the knee is flexed. With normal walking on the flat the knee is held or thrown into a fully straightened position to lock the knee joint and give some stability.

If evidence were to be given in this form, one could anticipate a number of objections. Thus, there is a lack of clarity in relation to those opinions which depend on physical examination, those which depend on historical reporting and those which may depend on some form of testing, although there is no reference to any testing of capabilities. On the other hand, it is clear from the Appellant’s evidence at trial that he had never attempted to get onto an examination couch and kneel on it in the manner described by the complainant. Accordingly, it may be inferred that Dr Nicholls did not have an opportunity to observe such an activity.
More importantly, there is no indication of what manoeuvre Dr Nicholls was commenting on in the last paragraph of his report. If he thought that the Appellant was faced “with a normally strong adversary in a confrontational situation” he was misinformed. At the very least, that comment could have no relevance in the context of the trial. The same comment may be made in relation to the last statement which involves reference to “a degree of resistance on the part of the other party” and a comment of the Appellant which was not given at trial.
It remains to consider the manner in which this evidence was proffered and the basis of its rejection, as recorded in the transcript of argument, no separate reasons being delivered. Directly after the lunch adjournment on the penultimate day of the hearing, being Monday, September 25, counsel for the accused, who was then under cross-examination, noted that he intended to call Professor Starmer, a pharmacologist, to comment on the quantity of diazepam which was found in the complainant’s blood, in response to the evidence of Dr Perl, who had given evidence as to that matter in the prosecution case. The discussion continued between Mr Walsh, counsel for the accused, the prosecutor and the trial judge (Tcpt, 25/09/06, pp 52-55): “WALSH: … The other two [proposed] defence witnesses, there’s an orthopaedic surgeon in relation to the accused’s leg –

The reasons for rejection of Dr Nicholls as a witness, can only be inferred from his Honour’s remarks in the course of argument with counsel. From these remarks, as often occurs, a change in emphasis can be divined as the argument progressed. Before he read the report, it appears that his Honour was concerned that it might be difficult to direct the jury as to the burden of proof, if the accused had sought to raise, by independent expert evidence, a positive defence. Secondly, there appears to have been a concern that the prosecution could not respond to the evidence, either because it was consistent with that of the accused and had not been challenged in cross-examination of the accused, or because contrary evidence would involve splitting the prosecution case. At a practical level, the perceived problem may have been that the prosecution would never be in a position to call evidence in rebuttal because no orthopaedic surgeon had witnessed the demonstration in Court or heard the accused’s evidence and there was no procedure whereby, during the trial, it would be possible to have another orthopaedic surgeon examine the accused, even if he consented.
Unless the jury accepted that intercourse took place in the manner asserted by the complainant, the Appellant must have been acquitted. Even though the evidence of the Appellant, taken together with the proposed evidence of Dr Nicholls, did not establish impossibility, it tended to show a degree of physical difficulty. The evidence of the accused that his physical disabilities rendered the account given by the complainant implausible was clearly evidence that “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” for the purposes of s 55 of the Evidence Act 1995 (NSW). There is no reason to suppose that evidence from Dr Nicholls would not have been relevant in precisely the same way. As already noted, the form of the report was objectionable and it may be that, if properly tested on a voir dire, it could have been demonstrated that his opinions were not wholly or substantially based on specialised knowledge: s 79 of the Evidence Act. Alternatively, it may have been established that his opinions were based on a misapprehension as to the facts and that, once the evidence adduced at trial was put to him, his opinion would not have assisted. However, this appears not to have been the basis on which the evidence was rejected and there was certainly no voir dire. If these issues had been sorted out, it is possible that the evidence might still have been rejected, for example, pursuant to s 135 of the Evidence Act, on the basis that it had little probative value and might mislead or confuse the jury. Nevertheless, the circumstances in which that provision might be invoked against an accused person in a criminal trial would probably be limited.
There were also passages in the course of argument at trial in which the trial judge appeared to be concerned that the doctor was giving an opinion on a matter which was an issue to be determined by the jury: Tcpt, 25/09/06, p 4 (15)-(55). If that were the case, the Appellant argues that that would be an error because s 80 of the Evidence Act provides that an opinion is not inadmissible only because it is about a fact in issue: see s 80(a).
Whether his Honour in fact accepted that view is somewhat unclear. It would be difficult, contemporaneously, to hold the view that the evidence was not relevant and that it was about a fact in issue.
On another view, the reason for rejection may have been that the evidence would merely “corroborate” the evidence given by the accused: Tcpt, 25/09/06, p 53 (25). In that sense, the evidence may have been seen as seeking to bolster the credibility of the accused. However, that would not mean that the evidence was irrelevant: s 55(2)(a).
None of these bases for rejection is persuasive. If Dr Nicholls had been properly qualified and the nature and extent of his examination and the bases of his opinion identified, it may well be that he could have expressed an expert opinion as to the likelihood of the Appellant climbing onto the examination table in the manner described by the complainant, given the functional impairment caused by the injuries to his left leg. However, as will be noted below, in a practical sense the probative force of the proposed evidence was likely to be quite limited.

The second witness rejected by the trial judge was Dr Bernadette White. Again, to appreciate the significance of her evidence it is necessary to return to aspects of the trial.
A significant element of the prosecution case was that an examination took place at Orange Base Hospital a little under 24 hours after the sexual activity took place, namely on the afternoon of 9 December 2005. Doctor Judith Ross examined the complainant and took oral and vaginal swabs. A high vaginal swab demonstrated the presence of semen with a profile which matched the Appellant’s DNA. Dr Ross also gave evidence of examining the complainant’s right labia and finding redness and tenderness. She also found a red puncture wound in the right arm which she considered was caused by a needle of the kind used for taking blood or giving an injection into a vein: Tcpt, 20/09/06, p 43. This evidence was consistent with three elements of the complainant’s story, namely that she was given diazepam in her right arm, that the act of intercourse was rough and abrasive and that he ejaculated in her vagina. In relation to the labia minore, which are the internal lips at the vaginal opening, Dr Ross noted both localised erythema or redness, and tenderness to palpitation: p 47. She said that these effects “could have been caused by blunt pressure on those tissues”: p 43 (35).
Doctor Ross was not cross-examined in relation to the significance of the high semen encountered on a high vaginal swab, nor with respect to her description of the labia minore.
As with Dr Nicholls, discussion of the proposed evidence of Dr Bernadette White was based upon a letter provided by her to the Appellant’s solicitors dated 12 September 2006, which was the first day of the trial. Her report was brief and the relevant passage may be set out in full: “I understand that you are seeking from me advice as to, other than through sexual intercourse, how semen could be present in the upper vagina. If [the complainant] did have a used condom containing semen there are a number of ways by which the semen could be placed in the vaginal [sic]. One would be to use a syringe to draw up the semen from the condom and insert it into the vagina, alternatively it would be possible to place either the unsealed condom or a sealed condom with a hole in it into the vagina to allow the fluid to leak out and then remove the condom. I do not believe it would be necessary for the patient to lie in any particular position for the semen to remain in the vagina. It is certainly accepted that even when through normal intercourse semen is deposited at the opening of the vagina or the lower part of the vagina, that it can nonetheless subsequently be found in the upper part of the vagina.”
The report of Dr White was dealt with differently to that of Dr Nicholls. Apart from the fact that the prosecution objected to Dr White being called, no reason was articulated and the only matter addressed by counsel for the accused in support of the proposed tender was that he had not put the questions addressed by Dr White to Dr Ross because the latter had made “no finding of semen in the upper vaginal area”: Tcpt, 25/09/06, p 6 (30). (The finding was made by the technician in the analytical laboratories.) However, his Honour gave the following ruling (p 7): “I accept that the matters raised in that report dated 12 September 2006 do raise a matter of relevance, but that no question was put to any witness called by the Crown in relation to the matters raised by Dr White and the report only having been seen by the Crown today, 25 September 2006, and objection being taken, I consider it is not proper to have Dr White called to give evidence.”
The reason for the rejection of the evidence is somewhat obscure. There was acceptance that the material was relevant and there was no express finding that the opinion was for some reason inadmissible. The reasons for it being “not proper” to permit the witness to be called for the accused were, first, that no question was put to any witness called by the prosecution and, secondly, that the Crown did not have prior notice of the evidence. However, in relation to the latter point, the Crown did not seek an adjournment, or even discuss the nature of any prejudice caused by Dr White’s proposed evidence. Nor was there any consideration, if it had been thought necessary to put Dr White’s opinion to Dr Ross, to have Dr Ross recalled, pursuant to s 46(1)(b) of the Evidence Act.
As with Dr Nicholls, an understanding of the reasons for the ruling of the trial judge were not assisted by any articulation of the basis of objection by the prosecution. The closest one comes is the following exchange, which occurred when the matter was first raised after the lunch adjournment on 25 September, after counsel for the accused had indicated that he would obtain copies of the reports and place them before the Court later in the day (Tcpt, p 54 (45)): “HIS HONOUR: Yes, by all means, you could do that but I can see the Crown has indicated that they would oppose, as I understand it, medical evidence. Is that so?

This passage is opaque: it does not articulate clearly any basis of objection. When it came to the reasons for rejecting Dr White, it would appear that his Honour acted upon an underlying assumption that the prosecution should be given prior warning of proposed expert evidence, where it is to be called on behalf of an accused. Whether that happened in respect of Professor Starmer is unclear, but no objection appears to have been taken to his evidence, which concerned the effects of diazepam: Tcpt, 26/09/06, p 33.
The Appellant’s case is that if the evidence were rejected because it had not been put to Dr Ross, that would have been an error because, to the extent that the principles of fair conduct required the prosecution be given advance notice of aspects of the accused’s case, that principle needed to be applied with caution “when considering the conduct of the defence at criminal trial”: see MWJ v The Queen (2005) 80 ALJR 329 at [18] (Gleeson CJ and Heydon J) and at [38] (Gummow, Kirby and Callinan JJ). (Reference was also made to the decisions of this Court in R v Liristis [2004] NSWCCA 287, (2004) 146 A Crim R 547 at [73]-[79] (Kirby J, Studdert and Hislop JJ agreeing), referring to the comments of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 688 and 689; and Rend v The Queen [2006] NSWCCA 41, (2006) 160 A Crim R 178 at [79] (James J, Buddin and Hall JJ agreeing).)
However, it is not necessary to consider the operation of these principles to deal with this case. If the prosecution needed to obtain instructions before cross-examining Dr White, it is difficult to imagine that that could not have been done overnight. Again, if an adjournment had been required, it was not sought. Nor was this a matter in which there was any need for an expert to examine or confer with any other person. Indeed, a more plausible basis for objection to her evidence was that it probably would not have advanced the sum total of the jury’s knowledge of such matters. With the possible exception of the last sentence, it was very much a matter of commonsense. Indeed, the underlying premise of the Appellant’s explanation as to the use of the condom was that the complainant herself had been able to work out how to use a semen filled condom to suggest vaginal intercourse. There is no reason to suppose that members of the jury would have acted otherwise than on the basis that such conduct might have the effects described.
The evidence being relevant and marginally useful, there was no sound reason articulated for rejecting it. If leave to appeal is required, the error not being one of law alone, leave should be granted: see Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318.

In submissions, counsel for the Appellant put the first paragraph of this passage to the Court, without the second. Taken in isolation, the first paragraph may suggest that there was some physical difficulty or even impossibility in the swab of DNA in the high vagina, otherwise than through full intercourse. However, read in context, it bore no such inference: rather it was an attack highlighting the implausibility of the defence case.
So far as the last sentence of the evidence proffered from Dr White was concerned, it was never the defence case that semen had been deposited at the opening of the vagina, or the lower part of the vagina, “through normal intercourse”. At its highest, the evidence of the Appellant was that the complainant tried, and may have succeeded in placing his penis in her vagina, whilst he was on the telephone, after he had ejaculated into a condom and she had removed the condom: Tcpt, 21/09/06, p 54. Evidence was not tendered as to the effect of that conduct. However, after the completion of the accused’s evidence, one would not expect that the final sentence of Dr White’s report would have been admitted, it not being based on the Appellant’s evidence which was by then complete. To think that the jury might have taken a different view as to the respective stories of the Appellant and the complainant if they had had expert evidence that semen could be extracted from a used condom and be placed in the high vagina, defies commonsense. The rejection of the evidence actually proffered could not have affected the outcome of the case.
There remains the evidence of Dr Nicholls. Although the evidence of the degree of functional impairment caused by the Appellant’s disabilities was a matter which could properly be addressed by an orthopaedic surgeon, the degree of impairment was not to be considered in general terms, as it might be in a case involving assessment of lost earning capacity, but in the precise circumstances of the events which were said to have occurred in the surgery on the day in question. It is clear that the trial was run on the basis, accepted by the prosecution, that the Appellant did suffer from a significant disability which no doubt made it difficult for him to get onto the examination table in the way described by the complainant. To the extent that Dr Nicholls described and identified particular injuries, these were not in doubt. The accused was not cross-examined to suggest that he did not have such injuries and indeed the prosecution joined in his demonstration of his disabilities to the jury. Whilst Dr Nicholls expressed the view that it is “very difficult” for the Appellant to “climb stairs”, the jury apparently saw him take steps in and out of the witness box and across the Court. Dr Nicholls expressed himself in the same terms in relation to getting onto an examination couch, namely “that it would be very difficult”. The reason he gave was the need for assistance “in getting the left leg” onto the couch. However, thereafter, Dr Nicholls’ opinions were based upon factual supposition as to the circumstances and physical state of the complainant which were not consistent with her evidence and which therefore left Dr Nicholls’ evidence as of such diminished weight as to be of no significance in its most important respect.
Again, had Dr Nicholls been called, parts of the written report would undoubtedly have been rejected and it is likely that his oral testimony would have been based on different premises. Nevertheless, such evidence was not proffered.
The Appellant faced other serious difficulties in relation to his own credibility. These can be adverted to briefly. First, when interviewed by the police two days after the incident, he said that he had already given back the complainant’s licence, denied that he had contacted her to tell her to recover it from the surgery and denied having seen the complainant at all on the day in question. He also denied having sexual intercourse with her. Given the possible consequences for his professional registration, even if the activities had been as he suggested in evidence and not as the complainant averred, he might have been able to explain the false story told to police. However, in his evidence, he insisted that the story was “incorrect” and did not accept that he had lied.
Two days after being interviewed by police, he took the initiative and contacted the Medical Board to explain the situation, in case a complaint was made. In a conversation with a legal officer attached to the Board, Margaret Harvey, he said that he had seen the patient on the day in question and that a bag containing his soiled underwear had been taken from near the examination table in his surgery. He explained that there was “semen on my clothes as I had ejaculated”. On the Board’s officer expressing surprise, the Appellant stated that “the patient must have taken the bag” and suggested that she did so “maybe to put in her vagina”.
In cross-examination, he denied much of the conversation with the Board’s officer, Ms Harvey.
The Appellant was also cross-examined about his claim to have had the complainant masturbate him into a condom, which then disappeared. No other condoms were found by the police in his surgery when it was searched two days later.
If the jury accepted the evidence of Ms Harvey, it would have demonstrated consciousness that his semen might have been found in the complainant’s vagina. There was, however, no suggestion of use of a condom.
As with most criminal appeals, there is an inevitable difficulty in assessing the evidence without hearing the witnesses. That is particularly so in a case where a complainant gives evidence, which is contradicted by the accused. However, the Court is entitled to take into account the fact of the jury’s verdict. Once it is accepted that the two pieces of rejected evidence could not have had a significant effect on the assessment of credibility, and in the absence of any other challenge to the verdict, it is open to the Court to conclude that there was no substantial miscarriage of justice. Although it would not be possible to find the accused guilty beyond reasonable doubt upon a mere reading of the transcript, there is ample material in the evidence to support the jury’s conclusion.
Were it otherwise, it would be necessary to order a retrial in any case in which an irregularity had been identified and in which the case turned in any material respect upon an assessment of credibility. However, as the Court explained in Weiss, 224 CLR 300 at [43], “the appellate court’s task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict”. Their Honours continued: “The court is not ‘to speculate upon probable reconviction and decide according to how the speculation comes out’. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial.”

I agree with Basten JA that errors have occurred in the trial procedure. It seems that his Honour, below, was concerned to ensure that by adducing evidence the accused did not prejudice his own position. However commendable that sentiment, it led to his Honour rejecting, in advance, evidence that was relevant. Certainly the evidence of Dr Nicholls would have been relevant. If the testimony were rendered unconvincing either because the facts upon which it was based were not proved or because it was inconsistent with other more convincing evidence (including the physical demonstration by Dr Alramadan), then that is a matter solely for the jury. No jurisdiction under section 137 of the Evidence Act 1995 (NSW) can be exercised in relation to evidence adduced by an accused and no exercise of discretion under section 135 of that Act was sought.
Further, to the extent that the report of Dr Nicholls was relevant to anything, other than an indication of the subject matter of the proposed evidence, it is not clear from the report that the evidence was not highly probative. That section of the report that refers to the capacity of Dr Alramadan to manoeuvre his leg may have been highly probative. First, it expresses (or purports to express) an expert opinion. Secondly, it is based on an examination of Dr Alramadan and the expertise of the specialist. Thirdly, it may have taken account of the effect of diazepam on the “adversary” (on which possibility, there is no evidence).
As to the evidence of Dr White, again it is (or would have been) relevant. It had a probative value in relation to an issue in the trial. Care must be taken to avoid diminishing the probative value of evidence because it is “common sense”. The problem with “common sense” is that its possession is not “common”. Translating the experience and knowledge of judges, or other persons, to everybody is not always a valid exercise. Given the cross-section of the public that makes up a jury, it is probably accurate that most of them would be aware of the capacity of semen to travel, in the manner suggested, from the opening or lower part of the vagina to the upper part of the vagina. But can we assume that everyone is? And even if everyone in NSW were aware, the evidence is not rendered irrelevant: it “could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings”.
Lastly, on the factual significance of Dr White’s proposed testimony, it is necessary to deal with the final sentence of Dr White’s report on the depositing of semen at the opening of the vagina and the capacity to find it in the upper vaginal area. With respect to Basten JA, such evidence is not irrelevant or inadmissible.
The evidence of Dr Alramadan (at least the latest version of what he said occurred) was that there was ejaculation into a condom, the removal of the condom and then an attempt by the complainant to place Dr Alramadan’s flaccid penis into her vagina. During that last attempt, as a matter of “common sense” and logic, there must have been semen on Dr Alramadan’s penis. As a consequence, Dr White’s evidence is relevant to the plausibility of Dr Alramadan’s version, or, more accurately, rationally affects whether the finding of semen in the upper part of the vagina is inconsistent with innocence of the criminal charge and thereby assists in the proof of Dr Alramadan’s guilt.
I agree with Basten JA that the evidence of both Dr Nicholls and Dr White was relevant and ought not to have been rejected.

As Basten JA observes, the basis of this appeal is that described in (ii) above. An error of law is not necessarily a wrong decision on a question of law. In this instance, the trial judge was required to decide a question of mixed law and fact and there is, as has been shown, an error of law. The decision is a wrong decision on a question of law, namely, whether the evidence sought to be adduced was admissible within the terms of section 56 of the Evidence Act 1995 (NSW) and/or whether, given the terms of section 56, the trial judge was entitled to reject the evidence. But it is not beyond doubt.
Alternatively, it seems, the rejection of the evidence was a “miscarriage of justice” in that relevant evidence upon which Dr Alramadan sought to rely was not permitted to be adduced. In Weiss v The Queen (2005) 224 CLR 300, the High Court discussed the meaning of this expression. While the proviso, to which I will come, has sematic difficulties, the terms of section 6(1) of the Criminal Appeal Act do not conflate the task in applying the proviso with that which is required in the body of the section. While the use of the expression “should be set aside” in qualifying the first two bases for a successful appeal may require the ground to be more than ephemeral or not irrelevant to the result, it is a different task to that required by the proviso. Interestingly, the third basis for a successful appeal, namely, a miscarriage of justice, is not qualified in the manner the first two bases are. This may be because the expression “miscarriage of justice” imports a similar notion and if it were qualified in the same manner there may be a conflation of this basis and the proviso.
However, the proviso uses the term “substantial” to qualify the “miscarriage of justice” and entitles the Court to dismiss the appeal, without requiring the Court so to do. If any one of the bases in the body of section 6(1) is satisfied, it seems, absent the application of the proviso, the Court is required to allow the appeal. The foregoing is not intended to be a reversion to the Exchequer Rule (see Conway v The Queen (2002) 209 CLR 203 at 211 et seq; Weiss v The Queen, supra, at 306 et seq). Even Baron Parke’s view required a formal objection, to inadmissible evidence allowed, before the right to a new trial arose: see R v Grills (1910) 11 CLR 400.
However, the distinction between the third basis requiring the upholding of the appeal (“miscarriage of justice”) and the proviso must depend on the addition of the word “substantial”. This seems to harken back to the “post-Judicature Act” approach described by Lord Herschell in Bray v Ford [1896] AC 44 at 52 as the effect of Order 39 rule 6 of the then Rules of the Supreme Court. Bray v Ford was a civil damages award by a jury to which the Rules applied. However, Herschell LJ (and Halsbury LC, Watson and Shand LJJ in separate judgments) took the view that the House of Lords under that Rule of Court was not entitled to look at the outcome of the case as if the irregularity had not occurred, because, as a libel action, the party was entitled to have from a jury both the verdict and the assessment of damage. This is not the view taken of the operation of the proviso: see Weiss, supra.
In Weiss, supra, at [36], albeit in summary form, the High Court expressed the view that the proviso falls for consideration when “there was some irregularity at trial”.
On the view taken of this trial by Basten JA, with which view I have agreed, there was some irregularity.

In applying the proviso, the Court is required to decide for itself whether, objectively, a substantial miscarriage of justice has occurred. The task is the same as that undertaken when deciding whether to set aside a verdict on the basis of unreasonableness of the verdict, making due allowance for the disadvantages of an appeal court that has neither seen nor heard the witnesses: see Weiss, supra, at [39]-[41]; Darkan v R (2006) 227 CLR 373 at [84], [85], [94]-[96], [109] (per Gleeson CJ, Gummow, Heydon and Crennan JJ) and [112] (per Kirby J).
Where an accused is denied the right to adduce relevant and admissible evidence, the effect of which may have been to raise reasonable doubt about the version of events upon which the Crown relies, then the task must be approached differently. The Court, on appeal, in such circumstances, is unable to assess “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (M v The Queen (1994) 181 CLR 487 cited with approval in MFA v The Queen (2002) 213 CLR 606 at 615 and 623), unless “the whole of the evidence” includes that which was excluded.
The difficulty is that this Court is unaware of the whole of the evidence that would otherwise have been adduced. Unless we are prepared to assume, as did his Honour below, that the oral evidence of Drs Nicholls and White would be confined to, or be identical with, their respective written reports, without further explanation, then there is no material that addresses that issue.
I agree with Basten JA that the assessment of the evidence as a whole, including the addition of the excluded medical reports to the remainder of the evidence would lead to the conclusion that “no substantial miscarriage of justice has actually occurred”.
However, I take the view that the reports, alone and unexplained, ought not be taken as the only evidence denied to the jury and upon which the assessment, required by the proviso to section 6(1) of the Criminal Appeal Act, should be undertaken. It was the oral evidence of Drs Nicholls and White that was irregularly excluded, not the reports. The Court should have had, and should have, for that purpose, the evidence that would have been adduced. This could be done by affidavit. There may be no evidence to be adduced beyond that which is in the reports. But the appellant should have that opportunity. I would refuse leave to appeal. Such a course would enable an assessment by the appellant’s legal representatives of the prospects of a further appeal on the basis of the evidence that Drs Nicholls and White could give, as explained by them.
I propose that leave to appeal be refused. **********