Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Court of Appeal (WA)|2012-08-30|Before: Mr J, Lure P, Buss JA, Mazza JA

DURANI -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 172 (30 August 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DURANI -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 172

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Unlawful and indecent assault - Sexual penetration without consent - Whether trial judge failed to give himself an identification warning - Whether trial judge erred in his use of evidence - Whether trial unfair and verdicts unsafe due to the incompetence of counsel - Whether trial judge erred in failing to come to conclusion on the appellant's demeanour - Whether trial judge failed to give a CCTV warning - Whether there was an accumulation of errors leading to a miscarriage of justice - Whether trial judge's decision to convict was unsafe and unsatisfactory

Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19

De Vries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472

Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555

Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488

Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517

Eades v The Queen [2001] WASCA 329

Hamilton v The Queen (Unreported, WASCA, Library No 970582, 5 November 1997)

Leary v The Queen (1975) WAR 133

McMahon v The State of Western Australia [2010] WASCA 143

Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461

R v McDougall (1983) 1 Qd R 89

R v Ravindra (1997) 3 NZLR 242

R v Rowton [1865] EngR 53; (1865) 169 ER 1497; Le & Ca 520

Sharma v The Queen [2011] VSCA 356

The Queen v Barton [2004] NSWCCA 229

The Queen v D (1996) 86 A Crim R 41

The Queen v DVB [2012] QCA 96

The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269

Walsh v The State of Western Australia [2011] WASCA 119

Zaidi v The Queen (1991) 57 A Crim R 189

3 MAZZA JA: On 10 June 2011, the appellant was convicted after a trial in the District Court before Fenbury DCJ sitting alone, of three counts of unlawful and indecent assault and two counts of sexual penetration without consent. The appellant now appeals against those convictions on various grounds which I will refer to shortly.

4 It was alleged that all of the offences occurred on the afternoon of 20 February 2010 at Royal Perth Hospital (RPH).

5 The appellant, a medical practitioner, was on duty as a registrar in the Acute Assessment Unit (AAU): ts 538. Part of his duties was to assess and, if necessary, admit patients to specialist wards. The complainant was, at the time, 19 years old. She is a type 1 diabetic who had attended at the Emergency Department (ED) of the hospital with symptoms of vomiting, nausea and dehydration consistent with a potentially serious condition called diabetic ketoacidosis (DKA). A possible cause of DKA is an infection. It may also occur because of inadequate control of a person's diabetes. The complainant had not always controlled her diabetes properly and had been hospitalised before with this condition. She also had a history of depression and was a heavy user of cannabis: ts 82. The night before her presentation to hospital, she had been at a fancy dress party, but denied consuming alcohol or cannabis. Prior to 20 February 2010, the appellant and the complainant had not met.

6 The complainant was seen by a triage nurse at 10.31 am: exhibit 2 blue AB 10. She was then admitted into the ED where she saw a consultant doctor, Dr Hubble, and later an intern, Dr Houghton, who examined her. Dr Houghton was the doctor primarily involved in her care in the ED.

7 The complainant's patient notes show that Dr Houghton examined the complainant at approximately 12.20 pm: exhibit 1.

8 At some point later in the afternoon, the complainant was taken to a cubicle in the waiting area attached to the ED. At 3.20 pm, a nurse, Ms White, made a note that the complainant was seen by the 'AAU reg':

exhibit 2 blue AB 12. It is not disputed that the 'AAU reg' was the appellant.

9 The State's case was that while the complainant was being seen in the cubicle by the appellant, he touched each of her breasts and gripped her nipples between his fingers in a scissor-type motion (count 1). The appellant denied touching the complainant in this way.

10 The complainant was then taken by an orderly to the Immune Deficiency Unit (IDU), a ward on the tenth floor of RPH. Despite its name, the IDU was where endocrinology patients were frequently admitted for treatment. The IDU comprised eight patient rooms, some of which contained single beds. The evidence was that the IDU was a closed unit and that the normal way of getting into a room on the ward was via a corridor past the nurses' station. Although nursing staff were particular about who came in or out of the ward, doctors and other staff members have access to the ward and it was possible for someone to come into the ward without being noticed: ts 468 - 469, 479.

11 The nurses on duty in the IDU on the afternoon in question were Fengyu (known as Mary) Zhang, Vivienne Dixon (also known as Murphy) and Ms Sherly Shaju. Ms Zhang was the unit's nursing coordinator. Ms Shaju was attending to the care of patients in rooms A to D, and Ms Dixon was looking after the patients in rooms E to H: ts 63. Before the complainant arrived at the IDU, the appellant telephoned and then visited the unit to see if she had arrived there. On those occasions he was told by one of the nurses that the complainant had not arrived.

12 There is no record as to the precise time that the complainant first arrived at the IDU. She was placed in room G: ts 63. Straight after the complainant was put onto the ward bed, Ms Dixon spoke to her and asked her a number of questions, the answers to which were noted: exhibit 1, blue AB 3. After taking those details from the complainant, which took about 10 minutes, Ms Dixon noted the time was 1700 hours or 5 pm: exhibit 2, blue AB 3. Ms Dixon said that the complainant did not appear to be in any distress or display any cognitive difficulties: ts 336, 339.

13 It is common ground that prior to about 5.30 pm the complainant was seen separately by two doctors in the IDU, the appellant and Dr Vikramjik (known as Vik) Randhawa. The appellant examined the complainant and Dr Randhawa took a blood sample from her. He recorded taking the sample at 5.03 pm.

14 The notes made by the appellant record the time of his examination as 1630 hours, that is, 4.30 pm: exhibit 1 blue AB 7. In his evidence, the appellant said that he wrote the notes when he was with the complainant and that 1630 hours was when he started writing those notes and commenced his examination of her. The notes are detailed and go for some 2 1/2 pages.

15 At trial, the State disputed that the appellant had commenced his consultation with the complainant at 4.30 pm. The State's case was that the appellant examined the complainant shortly after Dr Randhawa had taken a blood sample from the complainant at 5.03 pm. There was evidence that during the appellant's examination of the complainant, sandwiches were brought to her by Ms Dixon. Ms Dixon at that point testified, in effect, that she noted nothing untoward. The State's case was that after the sandwiches had been delivered and while the complainant was lying in bed, the appellant, under the guise of a legitimate medical examination and without the complainant's consent:

(a) cupped both the complainant's breasts and gripped her nipples in a scissor-type motion like that employed in count 1 (count 2);

(d) again inserted his finger into her vagina (count 5).

16 The complainant testified that when he first put his hand down her underpants he remarked, in reference to her pubic hair, that 'he liked it shaved': ts 124. At another point, he mentioned her body piercings: ts 130. He also asked her if she had sex with 'just anybody' she met: ts 131. Just before he left her room, she said the doctor moved towards her and puckered his lips like he 'was going to kiss me': ts 131.

17 The State's case was that after the appellant finished his examination of the complainant, he left her room and left the complainant's notes at the nursing station in the IDU without stopping to discuss the complainant's condition with the nurse who was present. He then exited the IDU: ts 66.

18 Shortly after his departure, the complainant buzzed for a nurse. Ms Zhang went into room G. There she found the complainant crying and upset. The complainant told her that a doctor had tried to kiss her and wanted to touch her breasts. Ms Zhang, who was aware that two doctors had recently seen the complainant, asked her which of the two doctors had touched her. The complainant told her that it was not the doctor who took the blood sample: ts 249.

19 Ms Zhang then paged the nurse manager, Mr Darren Middleton. Ms Dixon and Ms Shaju came into the room. Ms Dixon described the complainant as 'sobbing' and 'quite distressed'. She said that the complainant told her that 'the doctor had touched - touched her, that he'd touched her breasts and that he'd examined her vagina': ts 342.

20 Ms Shaju's evidence was to the same effect. She confirmed that when the complainant was asked which doctor had touched her, she said, 'Not the doctor who took the blood ...': ts 431.

21 Mr Middleton testified that he was paged at about 5.30 pm from the IDU: ts 448. He went immediately to the unit and spoke to the nursing staff. He had a conversation with the complainant who, when asked what had happened, told him that:

... the doctor had examined her breasts, touched her nipples, put her - his hand on her abdomen, down her pants, put his fingers into her vagina, and then tried to kiss her: ts 449.

22 Mr Middleton said that the complainant identified that out of the two doctors who had seen her in the IDU, the one who had assaulted her was not the doctor who took her blood: ts 450.

23 Later, at approximately 9 pm, the complainant was seen by Dr Kim Stanton, an endocrinologist with a special interest in type 1 diabetes: ts 272. The complainant repeated her allegations to him.

24 The State called every doctor and nurse who had made an entry on the complainant's hospital patient records on 20 February 2010 (save, of course, the appellant). None of them gave evidence to the effect that the complainant was suffering from any kind of delirium. The appellant himself testified in his defence and said nothing to contradict this. Further, apart from the time when the complainant made her complaint, the evidence showed that the only time the complainant was emotionally upset was when she was in the ED area. The complainant testified that while there, she was crying and upset because she 'was back in hospital': ts 114.

25 As a result of her complaint, the police were called and, on 21 February 2010, the complainant was medically examined by Dr Sluchniak, a medical practitioner employed by the Sexual Assault Referral Centre. On physical examination, the complainant showed no injury and no abnormality was found when she conducted an external and internal genital examination: ts 494.

26 The complainant's underwear which she had been wearing upon and prior to her admission into hospital, including at the party and at the time the alleged offences were committed, was examined for DNA by Mr Ross Hedley, a forensic scientist. DNA, including male DNA, was found on the underwear, but none of the DNA matched the appellant and he was excluded as contributing to the cellular material found on the items: ts 483. No male DNA was found on swabs taken by Dr Sluchniak during her examination of the complainant: ts 484.

27 The defence case as opened and closed by counsel was that the appellant did not commit the alleged offences. The written and oral closing submissions made on behalf of the appellant posited as 'the defence case theory' that:

(2) the alleged offences occurred, but the complainant was mistaken as to who had committed them and that they were committed by an unknown person; or

(3) because of her illness, use of cannabis and antecedent mental state, she was delirious or hallucinating and honestly, but wrongly, believed that the events had occurred, when in fact they had not.

28 In his evidence, the appellant confirmed that he saw the complainant in the waiting area of the ED and again in the IDU: ts 583. He said that he conducted a legitimate medical examination in both locations, but did not touch her in the manner alleged. He denied performing any kind of genital examination of the complainant, although, to have done so would have been legitimate in order to eliminate a genital infection as the source of her DKA.

29 The defence case was that the complainant said she was assaulted at the IDU after the blood test taken by Dr Randhawa at 5.03 pm, but the appellant had completed his examination of the complainant by then and had left the complainant's room. Therefore, he could not have been the offender. The defence maintained that the time on the complainant's notes of 1630 hours was accurate and seriously undermined the State's case against him: ts 556 - 582, 593.

30 The appellant's defence was not that the complainant consented to sexual activity with the appellant or that the complainant was touched, as alleged, in the course of a legitimate medical examination. Further, the defence case did not allege that Dr Randhawa was the offender. No submission to this effect was made on behalf of the appellant and it was never put to Dr Randhawa that he was the offender.

31 The parties adduced expert evidence on the issue of the complainant's alleged delirium. It was common ground that DKA can, in sufficiently serious cases, cause delirium. Dr Stanton described the complainant, when he saw her, as being clinically well, calm and balanced. He said her mental state was normal: ts 276. Dr Stanton said that the patient's blood pH level indicated 'very mild acidosis': ts 283. In his opinion, the mentation of a patient with the blood pH level of the complainant was unlikely to be affected: ts 284. He did not think that the complainant's level of dehydration would have caused changes in her mentation. In summary, based on the hospital records and his own observations, Dr Stanton did not think that there was any possibility that the complainant was suffering from any change or drop in her mentation based on her diabetes.

32 Dr Stanton agreed that, based on his general knowledge, depending on the dose, cannabis can cause paranoia, psychotic events, hallucinations, delusions and delirium, but when he saw her, her mentation was normal: ts 318 and 322.

33 Dr Stanton said that depression did not necessarily affect a person's mental acuity: ts 325.

34 The defence called Dr Stephen Fenner, a psychiatrist who specialises in, amongst other things, emergency psychiatry. He had viewed only a partial set of the complainant's hospital notes and he had not, at any time, examined her: ts 679 - 680.

35 Dr Fenner testified that delirium was a very common neuropsychiatric syndrome which featured a cluster of symptoms. He said that the most common thing that stands out to identify delirium is disorientation: ts 655; and that inattentiveness and poor concentration were 'always present': ts 674.

36 Dr Fenner said that hallucinations, mostly visual, were reasonably common. In his experience, by far the most common experience was that someone who is delirious had no recollection of what had occurred in that state. He went on to explain that some people will recall the episode, but realise that it was a bizarre experience that had not happened. However, he said 'just occasionally you do get people who remain absolutely convinced of their experience, even though it's quite obviously not true. It depends a little bit on the plausibility of the experience they had': ts 658. He went on to say:

But sometimes people do have credible experiences. And then the only way of knowing is to see them immediately afterwards or - or very close to the event and what you see happening is people recalling the event in a fragmented way, such as when we recall a dream. ... it's recounted in fragments: ts 659.

37 Dr Fenner said that he had never seen anyone for whom he thought cannabis or the withdrawal of cannabis was the cause of their delirium: ts 654. He also explained that depression does not cause delirium: ts 654.

38 Dr Fenner explained that sometimes medical practitioners and professionals do not detect delirium because some patients are superficially coherent, until cognitive demands are placed on them. For example, cognitive questions such as, 'Do you remember our conversation yesterday?' 'What did we talk about?' 'Where are we now?' 'Which hospital?' 'What time is it?' 'Is it morning or afternoon?' may be answered poorly by a person who is in a delirious state: ts 672.

39 Dr Fenner said that while in general terms DKA can cause delirium, especially when it is moderately severe, it rarely causes delirium when it is mild: ts 674.

40 Dr Fenner observed that it had been very difficult for him to put the whole picture together with respect to the complainant because he had not seen the complainant and he had not been provided with a full set of notes. However, from what he had seen, although he could not rule out delirium, there was not very much to indicate that the complainant was delirious: ts 680.

41 The grounds of appeal, without their particulars, are as follows:

The learned trial Judge erred by failing to warn himself of the dangers inherent in cases where identification is in issue and of the need to carefully scrutinise the evidence of identification before convicting.
The learned trial Judge erred in his use of the evidence of the distressed condition of the Complainant.
The Appellant's trial was rendered unfair and the verdicts thereby unsafe and unsatisfactory on the grounds that his trial was incompetently conducted by his Counsel.
The learned trial Judge erred in law in failing to come to a conclusion as to the Appellant's demeanour.
The learned trial Judge failed to warn himself not to draw inferences from the use of the CCTV facilities, as he was required to do by the provisions of the Evidence Act 1906 (WA) and the Criminal Procedure Act 2004 (WA).
The combination of errors alleged in grounds 1, 2, 3, 4 and 5 have led to a miscarriage of justice even should the Court not be satisfied that any single ground has not on its own led to a miscarriage of justice.
The learned trial Judge's decision to convict the Appellant of the offences was unsafe and unsatisfactory and not reasonably open on the evidence in the case.

42 Leave to appeal has only been granted in respect of ground 5 and the question of leave in respect to the other grounds was referred to the hearing of the appeal.

43 At the hearing of this appeal, senior counsel for the appellant made oral submissions in support of grounds 1, 2, 3, 4 and 5. Otherwise, he relied on the written submissions.

44 After counsel's closing addresses were delivered on 8 June 2011, his Honour reserved his decision until 10 June 2011. On that day, he delivered his reasons orally.

45 Fenbury DCJ identified that the principal factual issues for him to determine were whether the State had established beyond reasonable doubt that:

(1) the conduct alleged in each offence had occurred;

(2) the appellant was the offender in each of the offences; and

(3) in respect of count 1, any touching had not occurred accidentally in the course of a legitimate medical examination.

46 Fenbury DCJ was satisfied beyond reasonable doubt that in respect of each count the complainant's testimony was both truthful and accurate.

47 He was satisfied on the basis of that evidence that the conduct alleged in each count had occurred. In respect of count 1, he was satisfied that the touching of the complainant's breasts was not accidental. He found that the complainant had not made up the allegations and had not imagined the allegations as a result of being in a state of delirium.

48 With respect to counts 2 to 5 which were alleged to have occurred in the IDU, his Honour found that the offences occurred between about 5.05 pm and 5.30 pm on 20 February 2010: ts 830. His Honour did not believe the appellant's evidence that he saw her before 5.03 pm and that he examined the complainant for 25 minutes immediately before that time: ts 831. His Honour found that the appellant wrote the notes up, or the bulk of them, before he saw the complainant in the ward: ts 831.

49 His Honour was satisfied beyond reasonable doubt that the offender was the appellant. He rejected as 'fanciful and inconceivable' the notion that the complainant was assaulted in the ward by an unknown third party: ts 832.

50 His Honour was satisfied beyond reasonable doubt that the appellant's denials were false.

51 With respect to the expert evidence, although Fenbury DCJ accepted that it was theoretically possible for a person with DKA to experience delirium, there was no evidence from any witness, including the appellant, that the complainant was, in fact, delirious: ts 827 - 828.

52 In Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ said, at 561 - 562:

[T]he seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'. A warning in general terms is insufficient. (citations omitted)

53 The warning referred to by their Honours has become commonly known as a Domican warning.

54 It is accepted that his Honour did not give himself a Domican warning. The real question to be answered is whether his Honour was obliged to give the warning. If he was, the ground must be upheld.

55 The evidence considered by the High Court in Domican v The Queen was disputed positive identification evidence. 'Positive identification evidence' is where a witness claims to recognise the accused as the person seen at the occasion relevant to the charge. As McHugh J pointed out in Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [54], positive identification evidence may be direct or circumstantial proof of a charge. It is direct proof where the witness asserts that the accused is the person who committed the offence. It is circumstantial evidence when its acceptance provides the ground for an inference, alone or with other evidence, that the accused committed the crime in question.

56 Where positive identification evidence, whether used as direct or circumstantial evidence, forms a significant part of the prosecution case, a Domican warning must be given.

57 But if the evidence is not of this type and, instead, a witness provides evidence of the offender's general appearance or some characteristic or propensity which is said to be similar to the accused, that evidence, sometimes confusingly called circumstantial identification evidence, does not ordinarily require a Domican warning: Festa v The Queen [56] - [60] (McHugh J).

58 Senior counsel for the appellant, in the course of his oral submissions, was asked by the Bench to identify with precision the positive identification evidence which required a Domican warning. He referred to the complainant's evidence as to the offender's general appearance. The complainant described the offender as a male doctor about 173 cm tall, dark skinned with dark hair and a medium build. She said he had crooked teeth. She testified that he was wearing a dress shirt, dress pants and a tie: ts 115. She was adamant he did not wear glasses.

59 This evidence is not positive identification evidence. It is circumstantial identification evidence. No Domican warning was required in relation to it.

60 Some emphasis was given in the appellant's written submissions to evidence which suggested that, in some respects, the complainant's general description of the offender was incorrect. Reference was made to the unchallenged evidence that the appellant wears glasses. It was further said that the appellant does not have crooked teeth (although his Honour noted that the appellant's teeth were 'splayed'). These are relevant matters going to the credibility of the complainant's general description of the offender, but they do not justify a Domican warning.

61 The appellant was given leave to file, after the hearing of the appeal, a schedule of the evidence which, it was said, required a Domican warning. In that schedule, the appellant emphasised evidence given by each of the nurses on duty at the IDU and Mr Middleton that shortly after the alleged offences were committed in that unit the nurses were shown a single photograph of the appellant.

62 The evidence on this point was as follows. After the complaint was made, Mr Middleton looked at the complainant's patient notes and saw that the last entry was made by the appellant: ts 453. He then arranged for security at RPH to print off a single A4 photograph of the appellant: exhibit 7. That photograph was shown to Nurses Zheng, Dixon and Shaju, with the purpose of confirming that the appellant was one of the two doctors who had seen the complainant at the IDU. Each confirmed to Mr Middleton that the person in the photograph was the person they understood the complainant to have spoken of as the offender: ts 453 - 454.

63 This evidence is positive identification evidence which could have been used as circumstantial proof, along with other evidence, of the offences which were alleged to have been committed at the IDU. This is because it was evidence that the appellant had been to the IDU, asked about, and then, a short time later, seen, the complainant at approximately the time the offences were allegedly committed. However, the appellant in his evidence did not dispute that he had asked about the complainant and had examined her in the IDU at about the relevant time. The hospital records confirmed his examination of the complainant. At no stage was it suggested to the nurses that they had wrongly identified the appellant from the photograph as one of the doctors who had seen the complainant. A Domican warning is only required where there is disputed evidence of positive identification. The evidence was not disputed. Therefore it did not require a warning.

64 Finally in respect of this ground, senior counsel for the appellant, in his oral submissions, asserted that a Domican warning was justified because, he said, the complainant had seen the appellant for long periods of time on the day in question and that she potentially displaced his features with that of the real perpetrator.

65 The possibility of displacement was not one that which was suggested to his Honour and not one which was canvassed in the evidence. The phenomenon of displacement was discussed in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395. Displacement may occur where, for example, a witness is shown a photograph of a suspect and displaces the memory of that photograph with the memory of the original sighting of the offender so that any subsequent face-to-face identification is, in truth, an identification of the image in the photograph rather than the person originally sighted: Alexander v The Queen (409) (Stephen J).

66 The complainant did not identify the appellant at any point after the alleged commission of the offences. The danger of displacement does not arise.

67 In any event, any theory of displacement implies that the complainant was assaulted by an unknown party. The learned trial judge considered and excluded that possibility as 'fanciful and ... so objectively improbable that I reject it': ts 832. Senior counsel's submission as to the potential for displacement has no substance.

68 For these reasons, his Honour was not required to give a Domican warning. Ground 1 must be dismissed.

Ground 2 - The complainant's distressed condition

69 There is no dispute that at the time the complainant made her allegations to the nurses in the IDU (at about 5.30 pm), she was also emotionally distressed. No objection was taken at trial to this evidence.

70 The State's case was that the recent complaint and distress was conduct consistent with someone who had been sexually assaulted and was relevant to the assessment of her credibility. The State did not seek to use the evidence of distress as independent evidence of the facts in issue.

71 The appellant's written submissions in support of this ground assert that it was not reasonably open to the learned trial judge to use the evidence of distress as supporting the complainant's credit: white AB 63. Further, if it was reasonably open to use the evidence of distress in that way, his Honour should have warned himself that the evidence carried little weight: white AB 63.

72 His Honour dealt with the issues of recent complaint and distress together, and consistently with the State's case as being relevant only to the consistency of the complainant's conduct.

Now, here, of course, there was a very fresh and clear complaint that was reasonably detailed, although [it] did not contain every detail such as the complaint - complainant alleged in her evidence. There is also evidence that she was in tears; in other words, that she was distressed. The evidence is that when she made her fresh complaint to the summoned - freshly summonsed ward nurse she was in tears. She had not been in tears earlier. It is for me to decide as a matter of fact whether she was genuinely distressed, and the extent of it and the nature of it.

I realise that signs of distress may result from any one of several causes. I also realise that the cause might be the commission of the alleged offence. However, I also realise that duress [sic] - that distress can be feigned. It may have been simulated. I note if I find that the complainant was distressed and it was caused by the commission of the offence, it can be useful in considering the consistency of the complainant's conduct. I realise I must be cautious about this, especially given the complainant had been crying hours earlier in the emergency department apparently at her predicament, being that, through careless personal diabetic care, she had again hospitalised herself. I note that the timing is the - I note that the timing of the noticing of the complainant's distress is important. On the prosecution case, the complainant was freshly distressed prior to making her fresh complaint.

74 Later in his reasons, when he was assessing the credibility of the complainant's evidence, his Honour said:

If her account had not been supported by the evidence of fresh complaint, perhaps my task would have been more difficult, however, the fresh complaint evidence is a very significant support to her testimony, in my view, and certainly on the question of whether the offences occurred. Similarly, her distress. She was distressed because she realised, when the doctor tried to kiss her, that he had been helping himself to her body as she had let him, believing it might be medically required. That's my view of it: ts 829.

75 Evidence of a complainant's distressed condition is circumstantial evidence capable of being corroborative of the truth of the witness's account. Because of its circumstantial nature, the evidence can only be corroborative if the only reasonable inference open on the evidence is that the distress was caused by the alleged sexual conduct. If the complainant's distress could have been reasonably caused by something other than the alleged sexual conduct, the evidence is incapable of corroborating the complainant's account: Eades v The Queen [2001] WASCA 329 [32] - [34] (Murray J, with whom Templeman and Roberts-Smith JJ agreed); Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19; [43] - [44] (Pullin JA) [155] (Miller JA).

76 There has been some controversy about whether juries should be warned that evidence of distressed condition carries little weight. While such a direction is commonly given, it is not absolutely necessary to do so: R v McDougall (1983) 1 Qd R 89, 91 (D M Campbell J, with whom Campbell CJ and Sheahan J agreed). Whether such a warning is given depends upon the particular circumstances of the case. There will be cases where the evidence of distressed condition may have more than just little weight. An example of this can be seen in the facts of R v McDougall. In that case, the complainant, after going to sleep in her bedroom, was woken up by the appellant, whom she did not know personally, having sexual intercourse with her. Her distressed condition was observed at the same time that the intruder was seen fleeing her flat. In these circumstances, the Court of Criminal Appeal found that a warning that the distressed condition of the complainant had little weight was not called for.

77 The appellant's submission that it was not reasonably open to the learned trial judge to conclude that the complainant's distress was caused by the offences relies on the proposition that at the same time that she showed signs of distress, shortly after the alleged assault in the IDU, she was experiencing symptoms of DKA, such as might reasonably give rise to an alternative explanation for that distress: white AB 64.

78 This submission cannot be accepted. The nurses who took care of the complainant in the IDU shortly prior the commission of the alleged offences there did not observe the complainant to be in a distressed condition. Nurse Dixon, when she delivered sandwiches to the complainant, observed nothing out of the ordinary. Even on the appellant's evidence, when he examined her she did not appear to be in distress, despite here DKA.

79 In light of this evidence, the theory that the complainant's DKA might be a reasonable explanation for her distress is far fetched. It was reasonably open for his Honour to conclude, as he did, that the complainant's distress was as a result of the alleged offending and not some other cause.

80 As to the appellant's complaint that his Honour did not direct himself that evidence of distress carried little weight, such a warning was not required in this case. The evidence was to the effect that the complainant only became distressed shortly after the appellant had left her room in the IDU. Combined with her evidence of recent complaint, the evidence of distress was of some importance and carried more than just little weight.

81 I observe that the parties argued this ground on the assumption that his Honour was required to direct himself in accordance with Eades and Azarian, even when the evidence was not relied on as corroboration. It was not contended by the respondent that there was no requirement for such a direction in this circumstance. This is an issue for another day: Walsh v The State of Western Australia [2011] WASCA 119 [68] (McLure P, Buss JA & Hall J agreeing).

82 For these reasons ground 2 has not been made out and it must be dismissed.

Ground 3 - Miscarriage of justice as a result of the conduct of defence counsel

83 Senior counsel for the appellant described this ground as the 'primary ground' of the appeal: appeal ts 34.

84 As particularised, the appellant alleged that his trial was unfair because his trial counsel (not his counsel on appeal) had:

(a) not advised him of his right to call character evidence at trial and had not called character evidence; and

(b) failed to pursue an application under s 36BC of the Evidence Act 1906 (WA) to seek leave to cross-examine the complainant as to her sexual experience.

85 At the hearing of the appeal, senior counsel abandoned the s 36BC point. Thus, this ground is to be decided only on the question of the alleged failure of trial counsel to advise the appellant of his right to call and his failure to call character evidence.

The evidence sought to be adduced by the appellant in support of this ground

86 The appellant filed two applications in this appeal, dated 19 October 2011 and 30 January 2012, seeking leave to adduce other evidence pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA).

87 The evidence the subject of the application filed 19 October 2011 was an affidavit sworn by the appellant on 22 September 2011: white AB 5 - 8. In this affidavit, the appellant relevantly deposed as follows:

My counsel at the trial also failed to advise me of my right to call character evidence on my behalf to establish that I was a person of honesty and integrity, whose word could be believed and not the type of person who is likely to commit the sexual/indecency type offences as alleged.
Had I been properly advised of this right, I would have arranged for a few people, including fellow doctors at Royal Perth Hospital and previous patients of mine, to give character evidence at my trial. It is my belief that this evidence was critical in assisting his Honour in making an assessment of my credibility and honesty: white AB 8.

88 The respondent did not seek to cross-examine the appellant on his affidavit.

89 The additional evidence the subject of the application filed on 30 January 2012 was eight affidavits sworn or affirmed by, in all instances bar one, medical practitioners. All of the medical practitioners had worked with the appellant at RPH at some point.

90 The affidavits that were sworn by medical practitioners spoke highly of the appellant's professional competence and care. They all referred to the perhaps unsurprising fact that there would have been times when the appellant, in his work, would have been left alone with young female patients without incident. All describe him as honest and a man of integrity, and present the view that his peers and the community see him in this light.

91 The affidavits of Barry Walters, Krishnamurthi Somers, Mohamed Ibrahim and Antonius Steven do not make it clear how long the deponents have known the appellant. Gousia Choudhary first met the appellant at medical school in 1997, although they were in different years. There is nothing in his affidavit which indicates that he had any contact with Dr Durani after medical school. Dr Choudhary deposes that he saw the appellant while he was working as a doctor at RPH after April 2010, that is, after the commission of the alleged offences. Aqeelah Tabasum, who is not a doctor, first met the appellant in 2009. She is a close family friend who described the appellant as 'genuine, honest, sincere and truthful'. Imran Amin, another medical practitioner, first met the appellant in 2007. He deposed that he and his family are very close with the appellant's family. He described the appellant as professionally and personally honest.

92 The respondent did not seek to cross-examine any of the character witnesses.

93 In his oral submissions, senior counsel for the respondent objected to the proposed character evidence insofar as the doctors attested to 'the manner in which [the appellant] would deal with patients': appeal ts 55. Senior counsel's submission on this point was little more than an assertion, but does raise, although without much conviction, the issue of whether the evidence of the medical practitioners about the way the appellant carried out his professional duties is admissible as character evidence.

94 In Donaldson v The State of Western Australia [2007] WASCA 216; (2007) 176 A Crim R 488, Buss JA examined the question of what is admissible character evidence. He noted that the rule in R v Rowton [1865] EngR 53; (1865) 169 ER 1497; Le & Ca 520, which restricts the scope of character evidence to evidence only of an accused's general reputation, is often not complied with and that in this State evidence is often adduced beyond that of general reputation.

95 In R v Ravindra (1997) 3 NZLR 242 [1], Gendall J held that evidence as to a doctor's professional care and ethical standards was admissible evidence of good character.

96 In Zaidi v The Queen (1991) 57 A Crim R 189, 205, Priestley J, with whom Allen and Badgery-Parker JJ agreed, held that such evidence was not character evidence 'in any relevant sense'.

97 Because the practice in this State is often to allow evidence beyond general reputation to be adduced, and as the matter was not fully argued, I will assume, in the appellant's favour, that all the evidence proposed to be led for the medical practitioner is admissible evidence.

The evidence sought to be adduced on behalf of the respondent

98 In response to the appellant's affidavit, the respondent filed affidavits from the appellant's trial counsel, Mr George Papamihail, and his solicitor, Mr Andrew Guy. At the hearing of the appeal, senior counsel for the appellant briefly cross-examined Mr Papamihail and Mr Guy.

99 In his affidavit, Mr Papamihail disputed the appellant's claim that he did not advise him prior to or during the trial of his right to call character evidence. Three points emerged from Mr Papamihail's affidavit. First, in Mr Papamihail's opinion, as the appellant was a medical practitioner, 'his good character was a fact that would be accepted by the court': white AB 165, par 5. Mr Papamihail said that 'it was universally accepted' by the trial judge and the prosecutor that the appellant 'was of ... good character and good reputation': white AB 165, par 9. Trial counsel referred to the following portions of the trial transcript to support his asserted 'universal position'.

100 During the appellant's examination-in-chief, in the course of making an objection, prosecuting counsel told the learned trial judge that there was no imputation on the character of the appellant generally: ts 581. Later, during defence counsel's closing address, the following exchange occurred between counsel and his Honour:

PAPAMIHAIL, MR: ... I said this right at the opening of my submissions. You have a man here who, for all intensive [sic] purposes other than this allegation, appears to be a person worthy of respect. Worthy of honour, worthy of credit. A person who

FENBURY DC: Well, you haven't actually put his character on issue. But he's a practising medical practitioner---

PAPAMIHAIL, MR: Yes.

FENBURY DC: - - - and I would assume that he's a person of previous good character.

PAPAMIHAIL, MR: Yes. And also, the fact that he said that - - -

FENBURY DC: A professional person. A medical practitioner.

PAPAMIHAIL, MR: And that he said that the reason he chose this profession is because he wanted to help people, and in his mind it was a noble profession.

FENBURY DC: Undeniably: ts 792

101 The second point deposed to by Mr Papamihail was that, in his view, as it would be accepted that the appellant was a man of good character, there was nothing to be gained in calling character evidence in the context of a judge alone trial: white AB 166, par 12(a) and AB 167, par 14.

102 The third point was that as Mr Papamihail saw it, the focus of the defence case was on the complainant's medical conditions, particularly her diabetes, and how they compromised her reliability as a witness rather than on the appellant's character: white AB 167, par 13.

103 These points were not challenged by senior counsel for the appellant in his cross-examination of Mr Papamihail. Instead, senior counsel explored Mr Papamihail's understanding of the legal relevance of evidence of good character. Mr Papamihail said that such evidence went to the likelihood of the appellant committing the offences: appeal ts 24. Mr Papamihail did not say that it was also relevant to the appellant's credibility, but that understanding emerges in the affidavit where Mr Papamihail refers to the appellant's honesty.

104 It is unnecessary to canvas the evidence of Mr Guy in any detail. This is because, as senior counsel for the appellant accepted in his oral submissions, what is most relevant to this appeal is counsel's decisions and advice: appeal ts 35. Mr Guy deposed that prior to trial Mr Papamihail discussed character evidence, but he was unable to recall whether that discussion took place in the appellant's presence. However, he produced notes of a meeting with the appellant on 17 May 2010 which made a reference to the appellant's good character: white AB 151. In cross-examination, Mr Guy said that he understood character evidence to be evidence given in support of 'someone's truthfulness': appeal ts 25.

Resolution of apparent conflict in the evidence

105 There is an apparent conflict in the evidence of the appellant and Mr Papamihail about whether Mr Papamihail advised the appellant he could adduce character evidence in his defence. I say 'apparent' because, on a close reading of the appellant's affidavit, he does not assert that Mr Papamihail did not discuss character evidence at all, but that he did not discuss its relevance to credit and guilt. Be that as it may, the conflict is, in the end, immaterial to the resolution of this appeal. As will become apparent, what is material is not the advice the appellant was given, but rather that the evidence of good character was not adduced.

Admissibility and relevance of good character evidence

106 The law assumes that a person is of either good or bad character, and nothing in between. Although logically there is no compelling reason for distinguishing between good and bad character evidence, the common law has treated evidence of an accused's good or bad character differently. Before evidence of bad character can be admitted against an accused at common law, stringent conditions as to its probative value had to be complied with: Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461. No such conditions applied to good character evidence. If evidence constitutes good character evidence it is admissible even when, as often happens, it throws little, if any, light on whether the accused committed the crime in question: Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 [35] (McHugh J).

107 Good character evidence is relevant to issues of the accused's credibility and guilt. The assumptions which underpin these accepted areas of relevance are as follows. As to credibility, it is thought a person of good character is more likely to be an honest witness and is thus more believable. As to guilt, a person of good character is thought to be less likely to commit an offence and therefore less likely to have committed the offence or offences before the court. As pointed out by McHugh J and Kirby J in each of their judgments in Melbourne v The Queen [48], [109], these beliefs are dubious. Nevertheless, the right of an accused person to adduce evidence of good character remains. The basis for allowing evidence of good character to be used 'is not logic but the "policy and humanity" of the common law': Melbourne v The Queen [47] (McHugh J).

Miscarriage of justice as a result of counsel's conduct

108 The statutory basis for this ground of appeal is miscarriage of justice: s 30(3)(c) of the Criminal Appeals Act 2004 (WA).

109 The task of a court called upon to decide whether the conduct of counsel has resulted in a miscarriage of justice is not to assess counsel's performance and attach to it some pejorative label such as, 'incompetent', 'negligent' or 'imprudent', as if such a label will determine the issue. The focus must always be on whether a miscarriage of justice occurred.

110 Whether there has been a miscarriage of justice in the context of the conduct of counsel, must be viewed through the lens of the adversarial nature of a criminal trial. A fundamental feature of a criminal trial is that defence counsel has, subject to the rules and ethical considerations that apply, complete freedom to run the trial, as he or she sees fit, in the interests of the accused. It is the responsibility of defence counsel to make the many and varied forensic decisions involved in a criminal trial, such as what evidence to call or not to call. These decisions are often difficult and finely balanced. They are matters on which reasonable minds can and often will differ. Counsel, with their assumed intimate knowledge of the strengths and weaknesses of their case will almost always be in a better position than an appellate court to judge these things.

111 The general position is that counsel's decisions bind the client, even when those decisions are made without, or are contrary to, instructions and even when those decisions involve errors of judgment or negligence. It is not a trial judge's role to tell counsel how to conduct a trial and it is not an appellate court's function to assess, with the benefit of hindsight, how a case could have been conducted so as to achieve a more favourable outcome from the perspective of the appellant.

112 Thus, as a matter of fact, it will be a rare case where a trial will have miscarried because of the conduct of counsel. The burden on an appellant alleging a miscarriage of justice in these circumstances is a heavy one: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).

113 As to what constitutes a miscarriage of justice in the present context was recently stated by McLure P (with whom Buss JA and I agreed) in McMahon v The State of Western Australia [2010] WASCA 143 in these terms, at [25] - [27]:

In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [46]; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).

The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] [sic [33]] (Gaudron J).

114 The last sentence requires some clarification because in TKWJ v The Queen, Gaudron J [33] referred to fresh evidence and not new evidence.

115 I do not understand, from either the written or oral submissions of the appellant, that it was being contended that the failure of counsel to call evidence of good character deprived him of a fair trial to such an extent that it gave rise to a miscarriage of justice without regard to whether the conduct affected the outcome. If that had been the appellant's contention I would have rejected it. The failure by counsel to call evidence of good character was not the kind of fundamental error which could be said to have deprived the accused of a fair trial.

116 Senior counsel for the appellant submitted that in light of the 'oath against oath' nature of the case, the difficulty the learned trial judge had in assessing the demeanour of the appellant and the prosecutor's submission that the appellant had falsely noted the time of his examination of the complainant at the IDU meant that the appellant's good character was a 'critical' matter when deciding the credibility of the appellant's evidence. It was, in effect, submitted that there was no objectively rational forensic reason for not calling good character evidence and, had it been called, there was a significant possibility that 'it could have' altered the outcome of the case: appeal ts 50.

117 The respondent submitted, in effect, that Mr Papamihail, in the context of a trial by judge alone where it was assumed, and later acknowledged, that the appellant was a person of good character, made a rational forensic decision not to call good character evidence. Further, the proposed good character evidence would not have caused the learned trial judge to be 'likely to entertain a reasonable doubt' as to the appellant's guilt: appeal ts 53.

118 I will first address the issue of material irregularity. Because the test of whether there is a material irregularity is objective, the question to be answered in relation to defence counsel's conduct is not, 'Why did counsel act as he or she did?'. The correct question is, 'Could there be any reasonable explanation for what counsel did?': TKWJ v The Queen [107] (Hayne J).

119 This was a judge alone trial in which it was assumed, and the learned trial judge ultimately accepted, that the appellant was a person of good character. In these circumstances, the calling of character evidence could reasonably be viewed as unnecessary. Such evidence could reasonably be seen by counsel as being of more importance in a jury trial than in a trial by judge sitting alone. This is because trial judges are more likely than a jury to be aware that good character evidence is seldom probative of whether the accused committed the crime in question and is of little real assistance when gauging a witness's credibility.

120 It is only too well known that sometimes persons of exemplary character commit sexual offences: Sharma v The Queen [2011] VSCA 356 (Neave & Hansen JJA, & Beach AJA). Similarly, sometimes such persons do not tell the truth on oath. In some cases, the fact that a person is of good character allows that person to exploit the trust that the victim and others have in him or her. Judges and magistrates, by their experience and training, are aware of the limitations that evidence of good character has. The experience of judges would be well appreciated by counsel who could decide, on reasonable grounds, that the calling of good character evidence is generally unlikely to have much, if any, influence on the outcome of the case.

121 Mr Papamihail took the view that the defence case should concentrate on the complainant's reliability, having regard to her DKA and history of depression. The appellant's good character would, of course, have no bearing on these issues.

122 I do not accept the submission that the character evidence needed to be called because the learned trial judge, apparently, had difficulty in judging the appellant's demeanour. Of course, defence counsel would not have been aware of his Honour's difficulty which, as I will explain in respect of ground 4 was nevertheless resolved by his Honour.

123 I do not accept the argument that evidence of the appellant's good character would have assisted to rebut the State's case that the diary entry at 4.30 pm was not, as the appellant said, written while he was seeing the complainant. The resolution of this issue depended upon a close examination of the evidence of what occurred in the IDU up until the complaint was made, as well as the trial judge's assessment of the content of the notes and how long they would have taken to compile. The appellant's good character was of no real significance in this process.

124 For these reasons, the decision not to call good character evidence was, in all the circumstances of this case, an objectively reasonable course that defence counsel could have taken. No material irregularity has been demonstrated.

125 This finding is sufficient to resolve this ground. However, for the sake of completeness, I will nevertheless proceed on the assumption that the failure to call good character evidence was a material irregularity and decide whether there was a significant possibility that its omission affected the outcome of the case.

126 I have already summarised the proposed character evidence. Four of the doctors did not depose as to how long they had known the appellant. Although Dr Choudhary knew the appellant at medical school, there was a long gap in time between then and when Dr Choudhary started working at RPH in April 2010, after the appellant had committed the alleged offences. Dr Amin and Ms Tavisom were the only witnesses who said that they were close friends of the appellant. However, they had not known him for very long before the offences were allegedly committed. In its totality, the proposed evidence did not substantially add to the accepted fact that the appellant was a man of good character.

127 Further, as I will explain in my reasons with respect to ground 7, although the case was an 'oath against oath' case, it was nevertheless very strong, notwithstanding the appellant's denials and his good character. The State's case did not rely solely on the complainant's testimony. It was supported by strong circumstantial evidence. In my opinion, there is no significant possibility that the omission of good character evidence affected the outcome of the case.

128 I am aware, as a result of my own research, that there have been cases involving appellants who were convicted of sexual offences, where a failure by defence counsel to call character evidence has been held to be a miscarriage of justice. Each of these cases concerned a trial before a judge and jury, and each is distinguishable from the present case in its facts and circumstances.

129 In The Queen v D (1996) 86 A Crim R 41, the appellant was convicted of various sexual offences against his daughter. He gave evidence denying the allegations. For reasons which were not explained, the defence failed to call a number of character witnesses who were available to testify. Unlike the present case, the whole of the prosecution case depended upon the evidence of the complainant. Hunt CJ at CL, with whom Grove J and Barr AJ agreed, said that the proposed character evidence was 'impressive' and 'could well have had a substantial effect upon the jury's verdict'. I would not characterise the proposed character evidence in this case as having that effect.

130 In The Queen v Barton [2004] NSWCCA 229, the appellant did not give evidence and did not call character evidence on the advice of his counsel. That advice was based on counsel's erroneous view that the prosecution were in possession of prejudicial surveillance material which may have been used in cross-examination. This is plainly a different situation to the case at hand.

131 In Sharma v The Queen, the appellant, a doctor, was convicted of multiple counts of indecent assault and rape of the complainant, a woman with whom he had previously engaged in consensual sexual behaviour. The issues at trial were whether the complainant consented or the appellant believed she had consented. The appellant did not give evidence. However, he denied the allegations in a video record of interview with the police which was tendered. Defence counsel, in the course of cross-examining the main investigating officer, asked him if he was aware that the appellant had no prior convictions. The officer said that he could not comment on the matter. Defence counsel did not seek to clarify the issue (the appellant had no prior convictions) and thus the jury may have been left with the erroneous impression that the appellant had prior convictions. The court (Neave & Hansen JJA & Beach AJA) remarked that the case was 'very close to the line' [44]. Their Honours held that defence counsel's failure to remove any negative impression caused by the police officer's evidence, coupled with the failure to call 'powerful' character evidence gave rise to a substantial miscarriage of justice [51]. The court said that if that evidence had been led, some members of the jury might not have been satisfied beyond reasonable doubt that the appellant did not have an honest belief that the complainant was consenting [51]. In the present case, there was no risk that his Honour had or could have had any negative impression of the appellant's prior character, nor can it be said the character evidence was 'powerful'.

132 In The Queen v DBB [2012] QCA 96, the appellant was convicted of two counts of indecent dealing with his intellectually impaired stepdaughter. The outcome of the trial depended on whether the jury accepted the uncorroborated evidence of the complainant. The jury was unable to agree in respect of two other alleged sexual offences committed against her by the appellant. Muir JA (with whom White JA and Mullins J agreed) characterised the potential good character evidence as 'not particularly potent' [54], but nevertheless found, for a combination of reasons peculiar to that case, that there had been a miscarriage of justice. Most significantly, due to the appellant's solicitor's inexperience and the very short time defence counsel had to discuss the case with the appellant (possibly less than half an hour), the appellant was 'deprived' of 'the due and informed consideration' of whether character evidence should be called. Moreover, the appellant's legal advisers did not explore with the appellant potential avenues of cross-examination of prosecution witnesses. Muir JA's conclusion was, to some extent, influenced by the fact that guilty verdicts were returned on only two of the four counts brought against the appellant.

134 This ground concerns a comment made by his Honour in his reasons for decision in which he said, in the context of assessing the credibility of the appellant's testimony:

I know it's very difficult to prove that one did not do something. [The appellant] gave evidence fairly unemotionally, I thought. [The appellant] is of Indian ethnicity. He has a strong accent. Quite frankly, it is not easy to ponder the demeanour of a person from another culture, I find. However, when examined by the prosecutor about what questions he asked of the complainant in the ward about her sex life and his lack of record of those in his notes, he appeared to me to be in some difficulty. The word 'floundered' occurs to me: ts 831 (emphasis added)

135 The appellant asserts that the comment, 'Quite frankly, it is not easy to ponder the demeanour of a person from another culture, I find', amounts to a failure by his Honour to assess the appellant's demeanour because of his Indian ethnicity and strong accent.

136 The appellant has read far too much into his Honour's comment. His Honour, a very experienced trial judge, was saying no more than that assessing the demeanour of a person from another culture is sometimes not easy. The comment was an acknowledgment that his Honour, as a person from a different ethnic background to the appellant, needed to be cautious before drawing any conclusions about the appellant's demeanour. The comment was appropriate in light of the observation by Deane and Dawson JJ in De Vries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 480, that judges were increasingly aware of their own limitations when assessing the credibility of a witness by reference to demeanour.

137 What his Honour did not say is that he was unable to ponder the appellant's demeanour. A statement that a task is not easy does not equate with a failure or an inability to perform that task.

DURANI -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 172 (30 August 2012)

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Judgment (265 paragraphs)

DURANI -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 172 (30 August 2012)

Legislation Cited (2)

Cases Cited (19)