Court of Appeal (WA)|2000-10-11|Before: Ms J, Murray J, Parker J, Heenan J

Fernando v The Queen [2000] WASCA 289 (11 October 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FERNANDO -v- THE QUEEN [2000] WASCA 289

BETWEEN : WANNAKUWATTMITINDUGA LLOYD NIRMALEEN FERNANDO

Criminal law and procedure - Application for leave to appeal against conviction - Inconsistency of verdicts - Applicant discharged defence counsel during trial - Applicant given short adjournment to attempt to engage other counsel or prepare to continue trial unrepresented - Whether more substantial adjournment should have been allowed - Whether applicant should have been permitted to allow recall of prosecution witnesses for further cross-examination - Whether trial miscarried by reason of incompetence of defence counsel and failure to follow applicant's instructions - Whether trial miscarried by reason of errors of fact made by trial Judge and Crown prosecutor in addressing jury

Sentence - Aggregate term of 8 years imprisonment with eligibility for parole for three counts of sexual assault committed on the one occasion - Whether manifestly excessive

Application for leave to appeal against conviction dismissed

Application for leave to appeal against sentence dismissed

Bridgman v The Queen, unreported; CCA SCt of WA; Library No 8712; 12 February 1991

Cookson v The Queen (1989) 45 A Crim R 121

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Johnson v The Queen [1999] WASCA 75

Kilner v The Queen [1999] WASCA 189

R v JGO, unreported; CCA SCt of NSW; 5 December 1996

Reid v Readdy [1999] WASCA 208

Vella v The Queen [1992] WAR 537

Walker v The Queen (1998) 101 A Crim R 152

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

1 MURRAY J: On 19 June the Court granted an extension of time to permit the hearing of these applications and amended the grounds upon which they proceeded. As so amended, the grounds of the application for leave to appeal against both conviction and sentence are as follows:

"The verdict of the jury was unsafe and unsatisfactory for the following reasons:

(a) acquitting the appellant on counts 1, 2 and 6 and;

1. The issue at the trial was consent. There was no real issue concerning honest and reasonable but mistaken belief pursuant to Section 24 of the Criminal Code given that the appellant, in cross-examination, conceded that the complainant actually consented to all sexual advances and it was not a matter of him mistakenly believing that she was consenting.

2. Whilst there are individual counts, this was one series of events. By their verdicts the jury could not have been satisfied that the complainant was telling the truth with respect to the matters the subjects of counts 1, 2 and 6 and it is inherently inconsistent for them to have accepted the complainant's evidence beyond reasonable doubt with respect to counts 3, 4 and 5.

B The learned judge erred in law in failing to allow re-examination of witnesses consequent to the Applicant's dismissal of counsel.

1. The learned trial judge ought to have allowed the appellant to recall the complainant in order that he could cross-examine her about prior inconsistent statements.

2. The learned trial judge ought to have allowed the appellant to recall Dr Lincoln from the Sexual Assault Referral Centre for the purposes of enabling the appellant to cross-examine her as to any particular condition which would have made deep penetration during sexual intercourse impossible.

3. The appellant proposed to ask Dr Lincoln about (inter alia) the medical condition vaginismus - a condition which would have been consistent with the appellant's evidence that full penetration did not and could not have taken place contrary to the evidence of the complainant.

4. The learned trial judge did not enquire from the appellant the nature of the questions which the appellant intended to ask the complainant or Dr Lincoln.

C. The learned trial judge erred in law in failing to secure a fair trial for the appellant in that he failed to allow adequate time for the appellant to arrange alternative professional legal assistance to conduct his trial or arrange a new trial.

1. The appellant was on trial for a serious offence. The trial was listed for five days.

2. The learned trial judge gave the appellant no reasonable time to retain legal representation and he was thereby prejudiced in the presentation of his case including his evidence and his address to the jury.

(a) failed to comply with specific instructions provided by the appellant prior to trial and during the course of the trial; and

(b) failed to properly and adequately cross-examine the complainant and Dr Lincoln;

such that the appellant was not properly and adequately represented at trial.

1. Counsel, Mr Davies, had one week to prepare for trial.

2. The complainant contended that there was full penetration by the appellant. The appellant instructed Mr Davies that by reason of:

it was not possible for him to achieve other than slight penetration and that it was imperative that Mr Davies comprehensively cross-examine:

3. Notwithstanding instructions from the appellant Mr Davies did not comprehensively cross-examine the complainant with respect to prior inconsistent statements made by her namely those made in her statement to the police and during the course of her evidence at the preliminary hearing.

4 Mr Davies consented to the admission of the statement of Detective Sergeant Gregory John Harrison when the same was not admissible pursuant to Section 109 of the Justices Act or otherwise. The evidence of Sergeant Harrison as to statements made by the appellant to him (which statements were denied by the appellant) was relied upon by the Crown as evidence of lies having been told by the appellant and was crucial with respect to the matter of credibility.

E. The learned Trial Judge mis-directed the jury by taking the following evidence of the appellant out of context and thereby mis-stating same:

'I said I met a person who did not appear normal and she may be taking revenge' (AB451E).

(a) the complainant did not appear normal because she asked the appellant to come to her church and the only reason that she told lies was because he did not go to her church and it was likely that that was the disappointment which caused her to make a complaint for revenge (AB351B);

(b) the statement made by the appellant on video (page 10 of the transcript of video) was not to that effect.

F. The learned Crown Prosecutor in her address to the jury mis-stated the evidence given at trial to an extent that the jury would have been likely to be prejudiced against the appellant:

(a) At page 8 of her address the Crown Prosecutor said 'he also let slip on the video at one point, when talking about the conversation with Terry Allen - he said 'I could remember this woman. Yes, she complained about her mental problem as well' and you remember what he said about that in his evidence. You might think that all along, very, very early on, he knew that she was below average intelligence. You might have thought that's why he targeted her'.

(1) the statement made by the appellant on video (page 10 of the transcript of video) was not to that effect;

(2) the evidence of Terry Allen (AB192C) was to the effect that the appellant informed him that reference to the complainant' intellectual ability was an assessment of the appellant's because of the accusations which were being made by him - not an assessment made before sexual contact.

(b) At page 9 of her address the Crown Prosecutor said 'on the video he also seemed to be trying to persuade the police that he couldn't have raped anyone because he had sexual difficulties'. Pages 58/59 of the record of interview do not bear out that meaning. The appellant was saying that there was no ejaculation because there was no penetration.

The sentence imposed on the appellant was in the circumstances manifestly excessive given:

(a) the totality of the appellant's conduct in which there was an absence of any violence or threat;

2 The applicant was tried by Williams DCJ and a jury on 27 - 31 July 1998 upon an indictment charging him with six sexual offences, all allegedly committed against the same complainant on 17 September 1996 at her home in Armadale. The offences charged were as follows:

(1) An indecent assault by touching the complainant's breasts;

(2) An indecent assault by kissing the complainant's breasts;

(3) Sexual penetration without her consent by the insertion of his finger into her vagina;

(4) Sexual penetration without her consent by the insertion of his penis into her vagina;

(5) Sexual penetration without her consent by the insertion of his penis into her anus;

(6) Sexual penetration without her consent by the insertion of his penis into her vagina for a second time.

3 The jury convicted the applicant of counts 3, 4 and 5, but acquitted him of counts 1, 2 and 6.

4 Ground A seeks to have the guilty verdicts returned by the jury set aside on the ground that they are unreasonable or cannot be supported by the evidence, or that they are indicative of a miscarriage of justice: Criminal Code (WA), s 689(1). It is well established that verdicts may be set aside in such circumstances, even though there is evidence to support them, if the appellate court concludes that they are unsafe or unsatisfactory by reason of their inconsistency with verdicts of acquittal returned by the same jury. The manner by which such a conclusion may be reached was explained by the High Court in Jones v The Queen (1997) 191 CLR 439. The question is whether, having regard to the verdicts of acquittal, it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the accused of the offences of which he or she was convicted by their verdicts. In that connection the appellate court will always bear in mind that it is to the jury that the primary responsibility of determining guilt or innocence is entrusted under our system. They have had the benefit of seeing and hearing the witnesses which is denied to an appellate court, and in examining the evidence and considering the application of the test, an appellate court will consciously avoid any usurpation of the function of the jury, but on the contrary will look to see whether there is a true inconsistency to demonstrate that the evidence upon which the jury must have relied to support the guilty verdicts should be regarded as lacking the probative force necessary to establish guilt beyond reasonable doubt. That was the conclusion to which their Honours who constituted the majority of the High Court came in Jones: see per Brennan CJ at 444 and per Gaudron, McHugh and Gummow JJ at 455.

5 In this case the applicant suggests that his acquittal of counts 1, 2 and 6 must have been upon the basis that the jury were not satisfied that the complainant was "telling the truth" with respect to those matters. How then, the applicant asks rhetorically, could they have been so satisfied with respect to the matters concerning counts 3, 4 and 5?

6 In my opinion the answer lies in a proper understanding of the complainant's evidence. It is true, as the applicant says, that the principal issue at the trial was whether in respect of each alleged act of assault or penetration the complainant was established beyond reasonable doubt not to have consented, but that was not the only issue. Upon the complainant's evidence, the further question arose whether, if she did refuse her consent in respect of all or any of the alleged acts, she sufficiently conveyed that non-consent to the applicant, or whether it was established beyond reasonable doubt that the applicant did not have an honest and reasonable, but mistaken belief that the complainant was consenting to what occurred. That issue also was clearly left to the jury by Williams J and in my respectful opinion, on the evidence, his Honour was right to do so. It is necessary to briefly summarise the evidence at trial.

7 At the time of the trial the complainant was a woman of 44 years of age. She worked for the Royal Perth Hospital as a food service attendant. She lived alone at her home in Armadale where the offences allegedly occurred. She is mildly intellectually impaired. Evidence about that was given by her neurologist and a clinical psychologist. While her capacity for memory and recall were relatively good, although below normal, she has a severe deficit in social and communication skills. She has little knowledge of the community and the broader world. While she was at the time living on her own and coping well enough, this appears to have been largely because of the support of her family and her church. She and her family are members of the Free Reformed Church. The complainant's mother gave evidence of her regular church attendance. The complainant is an active member of the church. On a Sunday, if she is not working, she will go twice to church services and she participates in other church affairs. The complainant's mother gave evidence, as did the complainant, that the teaching of the church was that premarital sex was a sin and anal sex abhorrent.

8 On the night in question the complainant finished work at the hospital at 9.00 pm. She travelled home by train. On the train the accused engaged her in conversation. He asked for directions to a street in the district of Armadale. Both the complainant and the accused got off the train at the same station. Her evidence was that she waited for him to leave the station and she tried to avoid him, but he waited for her and walked with her to her home. She tried to get in by opening and closing the door quickly, but he came inside before she was able to close the door. He effectively forced his way in and as she put her bags on the table, he came to her and commenced to kiss her, touch her on her breasts and in her genital area under her dress. She could tell that the man wanted to "play sex" and although she did not want anything to do with him she did not know how to get him to leave.

9 He undid the zip on her uniform, although she told him not to do so. He held her by her arm and took her to the bedroom where he removed her dress and then his own clothing. She told him to stay where he was and she left the room and returned with a sheet which she put on the bed. She explained that she did not want "no dirty muck or anything on the bed". By that she meant semen. She removed her own underwear, shoes and socks.

10 Prior to that he had asked if she loved him. She had said yes, but did not mean it. She was worried that she might be attacked. He asked her to lie on the bed. He commenced to kiss her. He touched her on the breasts and kissed her breasts. This activity was counts 1 and 2. She did not feel safe. She wanted him to go home and asked, "Please, can you go? because I might have to get up early in the morning again and do overtime again and do work again tomorrow?"

11 The accused did not leave her. He inserted his fingers into her vagina, her "private part", where the blood comes from when she menstruates. It was painful. Then he inserted his penis further into her vagina. That was "very painful and hurtful". She said, "Ouch. Please can you stop because I don't want any more? Please can you go home?" But he would not go. He said, "I'm enjoying myself" to which she replied, "I'm not". She asked him many times to stop and to leave her home, but he would not do so. The incidents thus described were counts 3 and 4 on the indictment.

12 Then the accused asked if he could "put it up your rectum". She did not understand the word and he told her that he meant her "backside" or her "bottom". She replied no, she did not want anything to do with that, but she rolled over onto her stomach when he asked her, so that she was in a position where she was raised slightly on her knees. The applicant inserted his penis into her bottom. Again it was painful, but he would not stop, although she said, "ouch" a few times and asked the applicant to leave.

13 Finally, when that was over, she rolled over onto her back and "he still kept going on the front part again - the private part." She confirmed that by that she meant that he again inserted his penis into her vagina. It will be apparent that these incidents were counts 5 and 6 on the indictment.

14 When cross-examined by counsel the complainant confirmed that initially when she had been kissed by the applicant she had returned the kiss, but she did not mean it. She confirmed that she had told the applicant she loved him, but again said she did not mean it. She was adamant that she did not agree to have sex and that she made it clear from the beginning. But she said she did not know how to stop the applicant because she was too scared. She agreed he did not threaten her, but she said she just let him have his way because she did not know how to stop him or what to do. When she left the bedroom to get the sheet she did not run away because she was too frightened. She was not shaken in her account about what had occurred.

15 She agreed that the applicant had a penis with a peculiar shape, like an "L". She agreed that there had been no threats, that the applicant had asked her to roll over and she had done so. She was cross-examined about bruises which were later seen on her body. She said initially that she could not have obtained these bruises from work. When it was put to her that that was contrary to the evidence she had given at the preliminary hearing, she agreed that one of the bruises might have resulted from an incident at work, but the others she said were caused by the applicant, although she agreed that she was not struck by the applicant. She agreed that she bruised easily.

16 It was the complainant's evidence that she did not speak of what had happened to her until about 9.00 pm on the following evening and then she did not tell all that had occurred because she was ashamed. She was cross-examined as to why this was so and she said that it was because she had sinned by having sex with the applicant. She felt guilty that she had sinned against the Commandments. The applicant's case was put to her in a summary way that she wanted to have sex, did so, then later changed her mind and felt guilty. It was put that she then went to the police and said that what she had done willingly was done without her consent.

17 When re-examined the complainant was asked whether when the applicant was at her house she told him to leave. She said, "I would have loved to try to tell him but I didn't know how to do it because I was too scared and I was too frightened." However, she did confirm that she had objected to what occurred when the applicant was "putting his penis inside" her. When she was asked about what was contained in the statement that she had made to the police, she said that before the preliminary hearing she had told the lawyer prosecuting that there were mistakes in the statement, that the police had made errors.

18 Dr Lincoln, attached to the Sexual Assault Referral Centre, was called to give evidence that she examined the complainant on 20 September 1996. She found bruising on the upper part of the complainant's arms consistent with a person being held by the arms with some force. The doctor also found bruises on the inner aspect of the upper portion of the complainant's thighs. Again these bruises were consistent with finger pressure. It will be recalled that the complainant conceded that she bruised easily. Dr Lincoln could not comment on the age or degree of force required to cause the bruising. There was evidence of trauma to the interior of the vagina and the anus. A black hair was recovered from the upper third of the vagina. It could only have got there by penetration, but by what means she could not say. It was her opinion that the injuries to the vagina and anus indicated forceful penetration against some resistance on the part of the complainant, who did not have a "crooked vagina".

19 Defence counsel made little progress with Dr Lincoln in cross-examination, although she conceded that such injuries could be caused in the process of consensual sexual intercourse, she expressed the view that they were much more likely to have been received in the course of non-consensual sex. When re-examined the doctor was permitted to say that in her experience about 20 - 30 per cent of cases of non-consensual sexual intercourse exhibited injuries of the severity she found in this case. The other 70 - 80 per cent of cases exhibited injuries of less severity or no injuries at all.

20 A Mr Allen was called. He said he was the applicant's employer and friend. He discussed with the applicant a video that he had seen on a television programme called "Crime Stoppers". Apparently it depicted the encounter on the train and made reference to what followed at the house of the complainant. The applicant told Mr Allen that he was involved in some sexual activities with a woman in such circumstances, but that she had initiated what occurred and he had been unable to penetrate the woman because she had a crooked vagina. After discussion the applicant was keen to go to the police and Mr Allen took him to the police station.

21 Evidence was led of the making of the video tape for the Crime Stoppers programme. Defence counsel consented to the statement of a Detective Sergeant Harrison, who made the video, being adduced in evidence. In addition PC Princi, who assisted in the process, gave evidence. The video was played to the jury.

22 A forensic scientist gave evidence that the hair recovered from the complainant's vagina could have been that of the complainant or the accused or, indeed, another person. It may or may not have been a pubic hair.

23 The final body of prosecution evidence was that of Detective Trivett and Detective Sergeant Jones. They were the investigating police officers who interviewed the applicant and recorded the interview on video tape. The applicant was keen to participate in this process. It will be recalled that he voluntarily attended the police station with his friend and employer after the publication of the Crime Stoppers video. Both officers were cross-examined extensively by the applicant who was by then unrepresented, having terminated his counsel's retainer in circumstances to which I shall come shortly.

24 It is difficult to gather the point of much of the cross-examination. There was a general attack on the police officers and an assertion that the video tape had been tampered with. A PC Boyd of the Video Support Unit was called to explain how master tapes are stored and dealt with to prevent tampering with them and to give evidence that having viewed the master tape on this occasion, he was satisfied that it had not been changed in any way. This witness was cross-examined to suggest that he had a close association with Detective Trivett and Detective Sergeant Jones.

25 The last mentioned officer, in addition to testifying about the interview with the applicant, was permitted to give evidence that she took a statement shortly after the night in question from the complainant. She was allowed to say what the complainant said to describe and identify the alleged offender. I remain unclear how this evidence was admissible but, as I have suggested, the identity of the applicant as the person who was with the complainant on the night in question is not in issue. As has been seen there is no complaint now made about the admission of this evidence and so no more need be said of it.

26 The video interview with the applicant may be summarised in the following way. He had attended the police station voluntarily because his boss had said that his wife had seen a Crime Stoppers programme where it was said that a person called Lloyd, a dark skinned person, had met a woman on the Armadale train and had later sexually assaulted her. He realised that he was the person about whom the complaint had been made. He remembered the woman. She appeared to have a mental problem. As he had nothing to hide, he had come to the police. He described their conversation on the train. They both alighted at the same station. She continued the conversation. Although he should have walked in the opposite direction to her, he was concerned about her walking in the dark and offered to walk her home and to help carry her bags. She agreed.

27 When they got to the house she invited him in. It was she who initiated the sexual activity. They kissed. They were going to have sex. Both agreed, but it was not possible because she had a deformity of the vagina. No force was used. There was some foreplay and he tried on a number of occasions to have sex with her. It was unsuccessful. She complained of pain. He asked if he might try again and she agreed, but again there was pain. Then she said that he should stop. She wanted to sleep. She asked him to leave and he did so.

28 As to the actual incidents between them, the applicant said that everything occurred with her consent. He had a lot of girlfriends and there was no need for him to attack someone sexually. He agreed he put his fingers inside her vagina, saying that he was curious about the pain of which she complained. He thought there was a deformity of the vagina. The complainant said that her doctor had told her the opening to her vagina was too small. When vaginal intercourse proved too difficult he asked if she would like to try other positions because of the pain, but she refused. He attempted anal sex, but she complained about the pain after a little penetration.

29 The applicant said that he did not realise she was handicapped in any way until after the reference to that on the Crime Stoppers video. He also said that he had been having treatment for impotence. After it proved to be too painful to have intercourse with her they talked about her church-going and there was discussion about whether they would be married so that they might have sex after marriage and not before. He did not know how she received bruises to her arms. He only had his hand gently upon her arm just before he was about to leave the house. He himself had seen bruising to the top of her thighs after the sex. He left her house with a broken heart. Legally he had done nothing wrong, but maybe it was morally wrong because he attempted premarital sex.

30 In his defence the applicant re-called his employer to give evidence of his good character. As to the facts, the applicant was the only defence witness. His evidence was very much along the lines of his video interview. He emphasised that she was not only a willing partner, but initiated the sexual activity, unsuccessful though it was because of her pain. He gave evidence that at her request he lay on his back. She mounted him and tried to insert his penis into her vagina. After penetration proved to be impossible, he masturbated her to satisfy her, with her consent, but again without bringing her to orgasm. He elaborated upon the bruises he had witnessed on her body, describing injuries well beyond those seen by the examining medical practitioner. In his evidence in chief the applicant spoke of what he described as police corruption and how, without exception, the lawyers he had consulted, including the counsel whose services he terminated during trial, had refused to follow his instructions and had declined to pursue the allegations he was making, particularly about tampering with the video tape.

31 In cross-examination the applicant was not shifted from his general story of sexual activity with consent. He admitted touching the applicant's breasts and kissing her breasts. He said that when that happened he was not told to go. He insisted that she initiated the activity and that she expressly consented to it. He insisted that there had only been one insertion of his penis into her vagina. He agreed there had been anal penetration and said that after that occurred, he masturbated her in an attempt to satisfy her sexually. He agreed that he had inserted his finger into her vagina out of curiosity as to the cause of her pain. He did not accept that he could have been mistaken about her consent. She initiated the activity and in truth he did not find her physically attractive. The sexual activity was carried out gently and calmly. It could not have caused bruising. He did not assault her. He knew very well that she wanted sex.

32 Against the background of that evidence it seems to me that what the jury have done is perfectly clear. They were directed by Williams DCJ in the conventional manner that they need not accept the evidence of any witness in its entirety and that each count in the indictment was to be considered separately. They were directed in legally appropriate terms about the onus and standard of proof. No complaint is made about those directions. It appears clear to me that the jury have in fact rejected the applicant's version of the events as a truthful account, but they have not been prepared to accept the complainant's evidence in relation to counts on the indictment for which there was no support other than her evidence.

33 Counts 1 and 2 were entirely unsupported except by the evidence of the complainant, and her evidence about those events left open the possibility that she may not by then have made sufficiently clear to the applicant the fact that she was not consenting to his sexual advances. In short the jury appear not to have been satisfied beyond reasonable doubt that the applicant may not have had to that point an honest and reasonable, but mistaken belief that she was consenting. Perhaps in the minds of the jurors that view was reinforced by his firm assertion in evidence that he did in fact have her consent for all that occurred.

34 On the other hand, it is clear that the jury accepted the complainant's evidence with respect to counts 3, 4 and 5, supported as they were by medical evidence of the indications of forceful penetration and by the bruising upon her limbs. Finally, so far as count 6 is concerned, the second act of penile penetration was denied by the applicant and the jury appear to have been unwilling to rely solely upon the evidence of the complainant in relation to this incident. It will be recalled that the applicant said that after the act of anal penetration, which would have been count 5, the only other sexual activity was his masturbation of the complainant.

35 This is simply a case of the applicant having been given the benefit of the doubt. In my opinion it is certainly not the case that the acquittals on counts 1, 2 and 6 are only explicable on a basis which removes the capacity of the jury acting reasonably to rely upon the complainant, supported by the other evidence, so as to be satisfied beyond reasonable doubt of the offences which were counts 3, 4 and 5. I would not uphold ground A.

36 I have already mentioned that the applicant dispensed with the services of his counsel during the presentation of the Crown case. The point had been reached at the end of the second day of the trial that evidence had been taken from the complainant, Dr Lincoln, Dr Silberstein, the complainant's neurologist, Dr Enright, the complainant's general practitioner, Ms Cunningham, a clinical psychologist, (the last three witnesses gave evidence concerned with the complainant's capacity to give evidence and her reliability as a witness), and a number of other witnesses, including Mr Allen, the applicant's employer and friend, and witnesses concerned with the Crime Stoppers video, to which evidence I have previously referred. The final witnesses who were to give substantive evidence concerning the facts of the case were the police officers who interviewed the applicant, Detective Trivett and Detective Sergeant Jones.

37 Detective Trivett was the first of those called and his evidence-in-chief of the interview recorded on video tape which was played to the jury was completed at the end of the second day of the trial. Before the court adjourned the applicant interjected that he objected to the proceedings on the ground that the trial had not been conducted properly and a lot of evidence had been covered up. He informed the court that he had a lot of information he wanted to present and he was disappointed with the way the case had been conducted. Before the court adjourned the applicant was informed by the trial Judge that those were matters which he would first have to discuss with counsel.

38 When the court resumed on the following morning counsel informed the court that his instructions had been terminated and he sought and obtained leave to withdraw. The applicant confirmed that he had taken the course of dispensing with counsel's services because he was dissatisfied with counsel's performance and he wished to have the opportunity to present all the information to the jury. He said he was ready to proceed to do that, but he applied for an adjournment so that he could complete the process of organising the material which he wished to present. He said he would need a slide projector and a screen. He said he was ready to proceed to represent himself "because I reckon I got the full hang of this case".

39 When he was asked whether he was ready to proceed now he said he needed two more days. The Judge said he might allow until after lunch. The applicant said that was insufficient time because he had to prepare his documents, photocopies to be given to the jury. Then he said he had letters that he had written to very important people which he would wish to present. He said he might have to call some witnesses, perhaps one or two, but he thought that was not really necessary because the material he had was sufficient if he had time to prepare it properly for presentation to the court. The applicant made it clear, when the Judge sought to know what was the content of the material which the applicant proposed to present, that he did not wish to give those particulars in front of the prosecution.

40 However, the applicant did say that he would accuse the complainant of causing her own injuries and making a false complaint for personal reasons, perhaps for money. He said her cross-examination by counsel was incomplete. However, he said he did not want the complainant for further cross-examination, but he would wish to point out to the jury why the cross-examination was said to be incomplete. He wanted to say that the complainant had lied "right and left". He repeated his application for an adjournment, saying that he simply had not prepared to present his case himself.

41 The Crown prosecutor opposed the application for an adjournment saying that there appeared to be nothing which would be admissible in evidence which the applicant required further time to prepare. In the exchange that followed the applicant did refer to material sent by facsimile to him from Scotland Yard to indicate that there had been sophisticated tampering, presumably with the video tape of his interview. Neither at the trial, nor on appeal, was there any further reference to any such material. The trial Judge granted an adjournment until 2.15 pm. By the time that occurred it was 10.40 am.

42 When the court resumed in the afternoon, Detective Trivett completed his evidence-in-chief. He was cross-examined by the applicant, as was Detective Sergeant Jones who followed him into the witness box. In view of the allegations of tampering with the video tape, as I have mentioned, the prosecution then called PC Boyd of the Video Support Unit to give evidence relevant to that question. The Crown case was then closed and the trial Judge explained to the applicant the procedures which might follow at the applicant's election.

43 In the course of that process the applicant asked if he could call the witnesses who were called as part of the Crown case. He was told that he could not do so because they had already given evidence. He said he might have to call them back because they had not been sufficiently questioned. He mentioned medical witnesses. He was then told that he had the right to call witnesses to give evidence in his defence, witnesses as to the facts and character witnesses, and the procedure was discussed with him. Guided by his Honour, the applicant went into the witness box and gave evidence himself, effectively incorporating into his evidence-in-chief what he wished to say by way of an opening address. I have discussed the nature of his evidence.

44 At the conclusion of that evidence, and towards the end of the afternoon of the fourth day of the trial, the applicant sought to recall Dr Lincoln, but of course he had made no arrangements for her further attendance and she had previously given evidence, been cross-examined by defence counsel, and been excused from further attendance. The applicant indicated that he would wish to call Mr Allen again. Williams J said that he would not allow the applicant to call any witness who had already given evidence and had been cross-examined, but he would make an exception for evidence of good character. So in the end the position was that the applicant was told that he could call new witnesses as to the facts of the case and he could call any witness to give evidence of his good character. On the following morning Mr Allen was called to give character evidence. The applicant sought to call a further witness of that kind, but he was not present. For the respondent the concession was made that, apart from the charges presently before the court, the applicant was of good character. In view of that concession the applicant was asked to close his case and he did so.

45 This issue is addressed in ground C which complains of a failure to allow adequate time for the applicant to arrange alternative professional legal assistance to conduct the trial or seek a new trial. It will be noted that the applicant did not seek an adjournment for this reason. Indeed, subsequently during his conduct of the case, he complained that no legal practitioner whom he had thus far consulted had been prepared to follow his instructions or present the case as he would have wished. Nothing was put before the court to support his application for an adjournment which would assist to establish that any miscarriage of justice occurred by reason of the ruling of the trial Judge that the trial should continue at 2.15 pm on the day in question. The application was simply not supported by any material which would properly ground an adjournment for any greater period than might reasonably be required for the applicant to consider how he might cross-examine the remaining prosecution witnesses, and how he might effectively martial the evidence to be given in his defence. I can see nothing in the case to indicate that the trial as conducted, having regard to the adjournment granted, was in any way unfair. I would not uphold ground C.

46 Ground B gives particulars of the recall of witnesses sought by the applicant. He says he wished to recall the complainant to cross-examine her about prior inconsistent statements and he wished to recall Dr Lincoln to cross-examine her as to "any particular condition which would have made deep penetration during sexual intercourse impossible", and in particular to ask her about the medical condition known as vaginismus which, as I understand it, is a condition which may cause the size of the vagina to contract and make full penetration difficult or impossible.

47 In fact, as has been seen, the applicant did not specifically seek to have the complainant recalled, although he did complain about counsel's failure to cross-examine generally and he said he might have to call witnesses who gave evidence two days ago. When finally, after giving his evidence, the applicant was asked what witnesses he proposed to call, he named Dr Lincoln and Mr Allen. I note that the ground now makes no reference to Mr Allen, although when he was recalled it was simply to give general evidence of good character and the applicant was not permitted to again canvass with the witness the facts about which he had previously testified.

48 It was, of course, open to the applicant to call in the presentation of his case witnesses who had previously given evidence and been excused from further attendance, but it would be necessary for the applicant to arrange for their voluntary attendance at the court or for their attendance under the compulsion of a subpoena. This he did not do except in the case of Mr Allen.

49 The broad question raised by the ground is whether Williams J should have facilitated the recall of the witnesses. The question on appeal is whether a miscarriage of justice is established because his Honour declined to permit any such recall. Generally speaking, I think a trial Judge should permit a witness to be recalled for further cross-examination, rather than for evidence to be led in chief, where some matter of substance has been overlooked, unless by so doing some real incurable prejudice would be caused to the trial process or the party calling the witness: R v Masters (1992) 59 A Crim R 445, 473. But, of course, it is not for the court to make the arrangements for the witness to be procured. There is no question of prejudice to the respondent in this case and so the question, I think, is whether a miscarriage of justice has occurred by reason that neither the complainant nor Dr Lincoln were recalled for further cross-examination.

50 As to the further cross-examination of the complainant, the applicant has set out in an affidavit the areas of her evidence about which he wished her to be further questioned. One was the bruises she exhibited, the ease with which she might sustain a bruise and whether they might have been received at work. I have set out the evidence she gave in chief and under cross-examination. This is an area of fact which was quite adequately dealt with when she gave her evidence. Other matters are raised, including the point at which the applicant told her that his name was Lloyd, when the applicant undressed, whether she voluntarily removed all or only some of her clothes. Most of these areas were the subject of questions put to the complainant and any inconsistencies which might be demonstrated were peripheral and in my opinion could have had no substantial impact upon the complainant's credibility with respect to the issue of non-consent.

51 There is a reference to suggested inconsistencies as to when precisely the applicant was said to have touched and kissed the complainant's breasts and as to whether in what was really one incident the applicant penetrated the anus of the complainant once or twice. He was, of course, acquitted of counts 1 and 2 on the indictment and it might well have been counterproductive to establish that in an original police statement, although not in her sworn testimony to the court, the applicant said that her anus had been penetrated not once, but twice. In my opinion there is no merit in the proposition that in the interests of justice the trial Judge, although not asked to do so, should have permitted the recall of the complainant for further cross-examination in the areas suggested.

52 So far as Dr Lincoln is concerned, as has been seen, the areas of the applicant's concern are with respect to the degree of penile penetration of the complainant's vagina which was, or could have been, achieved. This was not in truth in issue in the case and was irrelevant to the question of the applicant's guilt or innocence, an issue which turned upon the question of non-consent. In any event, as I have already said when discussing the evidence given by Dr Lincoln, there was evidence of penetration and Dr Lincoln did give evidence that there was no abnormality of the complainant's vagina. The question of putting a proposition of vaginismus was a matter of judgment for counsel. There was no evidence to support the proposition and counsel's decision not to canvass this issue is readily understandable. In my view ground B is not made out.

53 Ground D complains of counsel's failure to comply with the applicant's specific instructions as to how the case was to be conducted and to properly and adequately cross-examine the complainant and Dr Lincoln. The ground is particularised by reference to matters upon which I have already commented when discussing ground B. I will return to the particular matters raised.

54 Before doing so I observe that the law in respect of the obligations of counsel, counsel's role in a criminal trial and the circumstances in which complaints about the performance of counsel will attract the intervention of an appellate court is, in my respectful view, particularly well stated in the judgment of Gleeson CJ, his Honour then delivering reasons in the Court of Criminal Appeal of NSW, in R v Birks (1990) 19 NSWLR 677. At 683 his Honour said:

"In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case."

55 As to the principles which will guide an appellate court in considering a case where there is a complaint about counsel's performance, at 685 his Honour summarised the law in the following propositions:

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

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

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

56 The appellate court will enquire whether there has, in the whole context of the trial, been a miscarriage of justice, but no such miscarriage will be found in a case where it is not apparent to the appellate court that by reason of something which has occurred in the course of the trial, the accused person has lost a chance of acquittal fairly open or for some other reason the verdict or verdicts returned by the jury must be regarded as unsafe or unsatisfactory.

57 It will be important always in making that judgment that the court bears firmly in mind that a criminal trial is an adversarial proceeding and that counsel's role is to contribute his or her professional judgment, expertise and experience to achieving a trial process which is fair and just. Judgments made about such things as the calling of evidence and the testing of a witness by cross-examination are essential parts of counsel's role which are not to be performed at the dictation of the party for whom counsel appears. In that context the rule that, generally speaking, the party is bound by counsel's decisions, merely reflects the importance to the trial process of the independent role of the barrister. The rules in this regard are not to be regarded as rules applied for the benefit of the professional advocate, but they are a reflection of the proper functioning of the courts in the administration of justice.

58 Against that background I turn to ground D and the particular matters of complaint raised. In the first place it should be said that the failure to comply with the applicant's instructions will of itself provide no ground to set aside the convictions. I have discussed the question of penetration. There was nothing to suggest that the complainant suffered from the condition known as vaginismus. There was evidence of the configuration of the applicant's penis and there was evidence confirmed by Dr Lincoln that there was nothing peculiar about the complainant's vagina. There was evidence of pain on penetration. Once it was conceded that there had been penetration to a degree, the suggested line of cross-examination of both the complainant and Dr Lincoln would no doubt simply have provided further emphasis to the evidence of the complainant, supported by that of Dr Lincoln, that there was forceful penetration which occasioned her pain and was without her consent. It would have supported her evidence that she complained of the pain to the applicant and it supported the prosecution case that her non-consent was made clear in that way.

59 I have discussed the suggested failure to cross-examine the complainant about prior inconsistent statements. A number of them were touched upon in the course of the trial. A number of the points were available to be made to the jury. None of them was of great significance in an attack upon the complainant's credibility. As to the consent to the admission in evidence of the statement of Detective Sergeant Harrison, it will be recalled that this was concerned with the making of the "Crime Stoppers" video. PC Princi gave viva voce evidence and the video was played to the jury. In my opinion it was a legitimate aspect of counsel's judgment to consider that little point would be served from the point of view of the defence in objecting to the evidence of Harrison being received by the admission of his statement. It appears that counsel obtained the specific instructions of the applicant before consenting to its admission.

60 In my view the matters raised in support of this ground do not satisfy the requirements of the law. There is no basis for the suggestion that a miscarriage of justice arises out of any aspect of the performance of his professional responsibilities by counsel prior to the time when the applicant dispensed with his services.

61 Ground E is the first ground of this type. It refers to the trial Judge's reference in summing up the case to the jury to evidence given by the applicant that, when Mr Allen raised with the applicant what his wife had seen on the Crime Stoppers programme he remarked, "I said I met a person who did not appear normal and she may be taking revenge". The Judge made no more of a point about that, but the complaint is that this took the evidence out of context and the jury may have taken it as a suggestion by the Judge that the applicant should be taken to have known at the outset that the complainant was of below average intelligence and that he approached her having in mind that she might be more readily prevailed upon to consent to sexual activity without perhaps a full understanding of what was involved so as to constitute consent in the eyes of the law.

62 The applicant's evidence-in-chief was that when the Crime Stoppers programme was raised with him:

"I had to recollect, recollect, and I said to him I could remember me meeting someone but that person didn't look normal. She asked me to come to her church. Probably - I didn't know that these people who make accusations like this could claim money. I - it came into my mind. I thought, 'only reason that this woman lies because I didn't go to her church' and she mentioned all this marriage business and maybe that was a disappointment and she did this to take revenge."

That statement was broadly consistent with what the applicant told the police when interviewed on video. In my opinion there was no material mis-statement of the evidence in any way to cause a miscarriage of justice in the way submitted by the applicant.

63 Ground F is related in that as the ground discloses, in the course of her final address to the jury the Crown prosecutor referred to this evidence as supporting an argument that the jury might think that the applicant knew early in his contact with the complainant that she was of below average intelligence and that was why "he targeted her". In my opinion it cannot be said that the evidence did not support such a submission. Further, at another stage of her address, the Crown prosecutor told the jury that at the video interview the applicant seemed to be suggesting that he could not have raped anyone "because he had sexual difficulties". At the interview when asked if he ejaculated, he said no he could not do that, but he did not elaborate on the point. The prosecutor's argument on this point was to my mind of dubious validity, but the evidence was before the jury and they could make up their own minds about the matter. They would do that in the context of the applicant's evidence at trial that he had been undergoing treatment for impotence. In my opinion this ground is without merit.

64 This application is advanced on the general ground that the total term of imprisonment imposed on the applicant was manifestly excessive given the absence of any violence or threat and the applicant's antecedents. The applicant was liable to 14 years imprisonment for each of the offences of which he was convicted. He was sentenced to 4 years imprisonment for the sexual penetration by inserting his finger into the complainant's vagina. He was sentenced to 2 years imprisonment for the sexual penetration of her vagina by his penis and he was sentenced to a further 2 years imprisonment in respect of the anal penetration by his penis. Each sentence was ordered to be served cumulatively with eligibility for parole.

65 In my opinion at least the sentences of imprisonment imposed for the penile penetrations are obviously inadequate, but on the other hand, if sentences of a proper length were imposed they might acceptably have been allowed to run concurrently. Alternatively, to recognise the number of the offences, albeit all committed on the one occasion, partial cumulacy of one or more of the sentences to be imposed might have been ordered. That would be subject in either case to ensuring that the total effect of what was done did not exceed the total criminality involved in the offender's conduct, having regard to his antecedents as well as to the manner of the commission of the offences.

66 There was, of course, some mitigation of punishment available to the applicant, despite the fact that he did not plead guilty or otherwise at any time show any remorse for his offending behaviour. Principally, as Williams J saw it, that mitigation was to be found in his Honour's conclusion that the applicant was a person of otherwise good character who had no previous convictions of any kind.

67 On the other hand, the Judge also noted what were undoubtedly aggravating features of the case. They had to do with his Honour's conclusion that the complainant was a particularly vulnerable victim, having regard to her mental and social deficits, who was preyed upon by the applicant who, in his Honour's view, must have known that she was intellectually disadvantaged. The offences were committed upon her after the applicant effectively forced entry into her home. They occurred at night and despite her ineffectual protestations and efforts to make him leave, a number of offences were committed. The anal penetration, it was made clear to the applicant, was entirely abhorrent to the complainant.

68 As I have said he displayed no remorse for his actions or empathy for the complainant at any time. Indeed, it was reported to the court that by reason of his attitude, he was unsuitable for inclusion in a sexual offender treatment programme, without which his Honour thought there was concern that he might continue to be a danger to the community.

69 In those circumstances, despite the fact that there was no substantial violence or threatening behaviour in the course of committing the offences and despite the applicant's favourable antecedents, it seems to me that to impose terms of imprisonment aggregating 8 years cannot be said to be a manifestly excessive response by the court to the offences committed.

70 I would refuse both the applications for leave to appeal against conviction and sentence.

71 PARKER J: I agree that the applications for leave to appeal against conviction and sentence should be dismissed for the reasons now published by Murray J.

72 HEENAN J: I also agree that the applications for leave to appeal against conviction and sentence should be dismissed for the reasons now published by Murray J.

Fernando v The Queen [2000] WASCA 289

At a glance

Court

Decision date

Before

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Source

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Judgment (136 paragraphs)

Fernando v The Queen [2000] WASCA 289 (11 October 2000)

Parties

Cases Cited (6)