Gallant v Regina

Crimes Act 1900 - ss 61R(2)(d), 412 (now repealed), 611 LEGISLATION CITED: Evidence Act 1995 - ss 110(2), 137 Crimes (Sentencing Procedure ) Act 1999 - s 44

Seymour v R [2006] NSWCCA 206 R v Gust [1999] NSWCCA 265 Melbourne v The Queen (1999) 198 CLR 1 Melbourne, cf R v Lewis [2001] NSWCCA 345 R v Makiski (2004) 151 A Crim R 245 CASES CITED: Nudd v The Queen (2006) 80 ALJR 614 TKWJ v The Queen (2002) 212 CLR 124 R v Way (2004) 60 NSWLR 168 R v Thomas [2006] NSWCCA 313 R v Kaliti [2001] NSWCCA 268 R Simpson (2001) 53 NSWLR 704

COUNSEL: D. Frearson SC - Crown P. Boulten SC - Applicant

SOLICITORS: S. Kavanagh - Crown P. Katsoolis - Applicant

IN THE COURT OF CRIMINAL APPEAL 2006/1623

McCLELLAN CJ at CL ADAMS J HOWIE J

THURSDAY 26 OCTOBER 2006 Peter John GALLANT v REGINA Judgment 1 McCLELLAN CJ AT CL: I agree with Howie J. 2 ADAMS: I agree with Howie J. 3 HOWIE J: The appellant was convicted by a jury of two counts of sexual assault contrary to s 61I of the Crimes Act 1900. As a result Judge Black QC (the Judge) sentenced the appellant on each count to a term of imprisonment consisting in effect of a non-parole period of three years and nine months with a balance of term of one year and three months. The sentences both commenced on 9 November 2005 and the appellant is eligible to be considered for release to parole on 8 August 2009. He has appealed against conviction and seeks leave to appeal against sentence. 4 The following grounds of appeal have been filed and argued in respect of the appeal against conviction:

Ground 1 The trial miscarried because counsel for the appellant failed to call evidence to demonstrate that the appellant had good character in a particular respect, namely, that he had no prior convictions for sexual assault and that he never uses any form of threats, force or violence to procure consent for sex.

Ground 2 His Honour erred by admitting evidence from the complainant that the appellant had, on an occasion prior to the alleged incident said, "Mel, if you don't straighten yourself out, I'm gunna give you a good biff over the head".

Ground 3 His Honour erred by directing the jury that the fact that the jury "might think" that the complainant did not offer any physical resistance to the appellant "by way of fighting or kicking or anything like that…that sort of thing is completely neutral". The Crown case 5 The trial was conducted on the basis that two sexual acts occurred between the complainant and the appellant on 24 April 2004 without any preceding conversation between them. The Crown case was that the complainant was not consenting to the sexual acts and that the appellant either knew that she was not or was reckless to that fact. 6 The complainant and the appellant were members of a skydiving club operating out of an airfield near Byron Bay. The complainant joined the club in 2002 and the appellant about 6 months later. He became the president of the club from early 2004 and acted as custodian of the club premises. These consisted of a hangar, office, recreational facilities, kitchen, bathroom and toilets. There was a bar and barbecue area where members socialised on Saturday evenings before going home or staying the night, some in the hangar on the mezzanine floor. Both the complainant and the appellant were present at the hangar on Saturday 24 April 2004 having participated in skydiving during the day. 7 The complainant, who was aged 23 at the time of the trial, gave evidence that she never felt comfortable around the appellant by reason of his conduct and appearance. He was heavily tattooed and had shaved his head. He made sexual gestures toward her once or twice a night when they were at the club by winking at her, or asking her to sleep with him or "pash" him. She thought he behaved inappropriately to her and either ignored his attentions or told him to "get lost". On one occasion when the appellant asked her to sleep with him she said that she would rather sleep with her friend's cat. 8 On ANZAC weekend in 2004 the complainant intended to go skydiving on both the Saturday and Sunday. Initially she planned to stay overnight at a friend's place but changed her mind when she learned that it was her friend's last weekend before going overseas and she was to spend it with her boyfriend. When everyone had left the hangar she decided to sleep in the student area on the mezzanine floor. She believed that nobody was sleeping there and was unaware that at times the appellant slept in that area. She said that on an earlier occasion the appellant indicated that she could sleep in the hangar and, when she asked whether he slept there, he told her that he did not. 9 The complainant said that on the evening of 24 April she was in the barbeque area. The appellant was engaged with her in a conversation about skydiving when he looked her up and down and said, "Your nipples are looking particularly pointy tonight, what, are you turned on are you?" She felt disgusted and said, "Oh Shorty [the appellant] you would be looking wouldn't you?" and walked away. She spoke to another club member who later told the appellant not to hassle her. 10 At about midnight she was in the toilet getting changed when she heard someone approach. She heard the appellant ask her why she was taking so long. The door was then pushed open but the complainant slammed it shut. She left the toilet and later went to the bar where she saw the appellant. He smirked at her and said in a sarcastic tone that he was sorry. The complainant drank about four stubbies of beer before retiring for the night. She was assisted to the mezzanine level by a friend who told her to be careful. She found a mattress and doona with a mosquito net over it. She placed her own doona and a sheet on top of the mattress and fell asleep. There was evidence that the mattress belonged to the appellant and was used by him exclusively. 11 The complainant was awoken when she felt her waist lifted off the bed. The doona was off her and her jeans and underpants were just above her knees. The appellant was standing between her legs without a shirt or pants. She pretended to be asleep because she was terrified. The appellant pulled her jeans off her and her underpants came off with the jeans. The appellant lay on top of her pinning her waist so that she could not move. He was naked. He tried unsuccessfully to insert his penis into her vagina. He licked his finger and placed it into her vagina. The complainant whimpered hoping that he would stop. He removed his finger and then entered her vagina with his penis. He had "vigorous" intercourse for about five minutes. The complainant sobbed in the hope that he would stop. 12 The appellant withdrew his penis and ejaculated while crouched down near her feet. When she looked up she saw him standing over her looking at her. She turned away and felt him move to lie next to her. He stayed for about fifteen to twenty minutes before getting up and leaving the mezzanine floor via the ladder. The complainant was too scared to move but felt sick and vomited on the doona. A short time later the appellant returned and lay down on another mattress in the area, a metre or two away from her. She did not sleep the rest of the night but could not leave because she was afraid that the appellant would wake. 13 In the morning after the appellant had left the area the complainant heard two club members arrive. She dressed and descended the ladder. She gathered her skydiving gear and went to the plane with the appellant and others. Having completed the dive, she had breakfast, obtained some clothes from her vehicle and showered. She later complained to Mr Thurston, one of the members of the club, that "Shorty raped me last night" and left a short time later. Mr Thurston did not remember her using the word "rape". 14 After she arrived at her home she told her flat mate, "Shorty raped me". She spoke to a number of other persons during the following week about what had happened. After making a formal complaint to the Australian Parachute Federation, the complainant went to police on 27 April 2004. The defence case 15 The appellant was aged 45, twice the complainant's age. He wrote a letter in answer to the complaint made to the Federation stating that the complainant gave him no indication that he should stop what he was doing when they were on the mattress together and that he did not believe that he "raped her or forced her in any way". 16 The appellant was arrested on 20 July 2004 after he voluntarily attended Byron Bay Police station. He agreed to participate in an interview in which he gave an account of what had occurred on the night in question. He said that he was serving drinks from the bar and chatted on occasions with the complainant, joking with her "as we usually do". He asked her where she was sleeping and she said that she did not know. He half jokingly said that she could sleep with him. He said that later in the evening the complainant was "quite drunk" and disappeared some time between 10 and 11pm. He assumed that she had gone to sleep somewhere. He went to bed on the mezzanine floor about midnight. 17 He went up the ladder and got under the mosquito net on his mattress. He was surprised to find the complainant in his bed. He lay down beside her because he wanted the protection afforded by the mosquito net. After he gave her a shake she rolled over to face him. He told the police:

Being a normal red-blooded sort of bloke, I thought I'd try my luck and started touching her. I started playing with her breasts, she made no objection to that and then put an arm up over the top of her, which I took as a red light to continue touching her and, and what not. I started to undo her pants at some stage and she offered no resistance. Well, when I, when I took her jeans off she lifted herself up and assisted me in kicking her jeans off. A little bit more foreplay, if you, if you like and I proceeded to climb on top and do as you do, which was fairly brief sort of thing, 'cause we'd both been, I was fairly drunk at the time I guess. That was about it really. 18 The appellant said that he knew the complainant was intoxicated because he had seen her asleep earlier on the toilet and shook her awoke. He told police that she had giggled when he said that she could sleep with him. He had said a few "cheeky" things to her over the night and gave her a pinch to her bum when she passed. He denied to police that the complainant was upset at all and if he had known he would have asked her what was the problem. He said that during foreplay the complainant had put her arms around him and threw her leg over him encouraging him to continue. 19 The appellant told police that he had known the complainant about 18 months and admitted to making sexually explicit approaches when he drank. He accepted that he may have made a couple of "smart arse remarks" but could not remember doing so. However he did say to her that her "nipples are looking pretty pointy". He made flirting remarks to girls when drunk but considered it as "no big deal" and that the girls returned them to him. 20 In evidence he said that he did not consider pinching the complainant on the backside as inappropriate behaviour. They had "playfully flirted" on other occasions and this caused him to believe she was interested in him. He did not speak to her prior, during, or after sexual intercourse. Grounds of appeal Ground 2 - Evidence of prior threat 21 It is convenient to deal with the second ground of appeal first. The complaint is that the trial judge permitted the complainant to give evidence that on a previous occasion the appellant had said to her "Mel, if you don't straighten yourself out I'm gunna give you a good biff over the head". 22 The circumstances in which the evidence arose were as follows. The trial judge had at the outset of the trial rejected evidence that the complainant knew that the appellant was a member of a bike gang. This is perhaps somewhat surprising as it was relevant to the complainant's attitude to the appellant that he was a member of such a group and that she had understood from what the appellant told her that he had been involved with the police and used different names. Notwithstanding its significant relevance to the relationship between the appellant and the complainant, the Judge excluded it under s 137 of the Evidence Act. 23 At the outset of the cross-examination of the complainant she was being asked about the absence of any violence on the part of the appellant on the night of 24 April. It was put that there was no violence and she replied that she was terrified for her life. When asked to answer the question, she conceded that there was not. It was then put that there were no verbal threats. The complainant asked, "Could I add………" and she was told by defence counsel that she could not and was asked to say whether it was correct or incorrect. The complainant then said, "Could I please bring something up with the judge?" The Judge indicated to counsel that they would have a voir dire examination to find out what was the problem and defence counsel did not object. The Judge told the jury that a question of law had arisen and asked them to leave. 24 In answer to the Judge asking what she wanted to say, the complainant replied:

Okay, two things. Once before, Shorty has threatened to hit me on a previous occasion, so I did have reason to believe that it would have led to violence. When I was getting jealous of a person I was in a relationship with at the time from being involved with another woman and we were at a party and I was getting noticeably upset and Shorty was next to me, he said, "Mel if you don't straighten yourself out I'm gunna biff you over the head" and besides that he's in a motorcycle gang which didn't have a good reputation and I was terrified that he would cause violence to me…….. and so I did have a good reason to be scared of him. 25 The Judge asked defence counsel what he wanted to say about the answer. Counsel conceded that the complainant might be able to give it in re-examination depending upon how far he went in questioning about her fear of the appellant, but submitted that it was not admissible at that time. The Judge ruled against the objection but told the complainant that she could not refer to the second matter she raised, being the membership of the appellant in the motorcycle gang. The Judge offered counsel the opportunity to obtain instructions but he indicated that he had them and was "comfortable to proceed". Again the complainant was advised of what she could and could not say and the proceedings continued. 26 In the presence of the jury, the Judge reminded the complainant of what had occurred prior to the interruption in the cross-examination and then asked her if she would like to say what was on her mind. The complainant answered:

He never threatened me that evening, but at a party on a previous night I had for a while been in a relationship with a male and on that night I was getting quite jealous because my partner was spending a lot of time with other females and I was noticeably upset and we were at a party near the drop zone at Byron Bay there were a lot of people there and I was starting to get teary and Shorty was standing quite close to me and he could tell that I was upset and he looked at me and said, "Mel, if you don't straighten yourself out, I'm gunna give you a good biff over the head."

Counsel was invited to continue the cross-examination and did so without asking the complainant any questions about this answer. The Crown never returned to the subject in re-examination. 27 During the course of his address defence counsel put to the jury that this evidence was a recent invention of the complainant as there was nothing said about it in examination-in-chief. He submitted that the complainant raised this alleged incident because she realised that there was no suggestion of violence or threats of violence on the night of the incident and no other reason for her to be in fear of the appellant. He put to the jury that this evidence was given as a warning to him that, if counsel kept going with this aspect of his cross-examination "on her weak points", "she'll throw more dirt at him [the appellant]". 28 It seems clear to me that the evidence was admissible as to the complainant's state of mind, and defence counsel at the trial did not argue otherwise. If the Judge had not intervened, it would have been open for the Crown prosecutor to raise with her in re-examination what she wanted to say in answer to defence counsel putting to her in effect that she had no reason to fear the appellant. It might well be the case that it had little probative value, because, on its face, it does not appear to have been a genuine threat but that was a matter for the jury. The evidence may well have told against the complainant's credibility, as defence counsel argued to the jury. But whatever the jury made of the evidence it could not in my view have been unfairly prejudicial such that it should have been rejected under s 137 of the Evidence Act even though no such argument was put to the trial judge. There is no basis, in my view, for any suggestion that the jury might have misused the evidence to the prejudice of the appellant. 29 It was argued on appeal that the evidence might have assumed undue significance to the jury because it was in effect elicited by the trial judge. But the jury must have appreciated what was happening. The complainant obviously wanted to add something to her answers to the questions as to the absence of threats by the appellant on the night in question but was being denied that opportunity by defence counsel. She said she wanted to bring "something up with the judge". The Judge asked the jury to leave, as it was necessary for him "to sort this out". When the jury returned the Judge in effect reminded the jury of what had happened through questions of the complainant as follows:

His Honour: Now, Mrs [ ] you'll recollect that [defence counsel] was asking you whether there'd been any threats of direct violence that night, namely the 24th/25th. Do you remember he asked you that?

Q. And you remember you then said there was something you wanted to raise with myself and then the jury were asked if they'd be good enough to leave?

Q. Remember? And you then explained to me your position and as I understand it you wish to refer to a specific incident which had happened some time previously?

The complainant then gave the answer that has been set out earlier. 30 In my opinion this was a relatively unimportant incident during the course of the trial and the evidence had little significance at least to the Crown case. Its admission and the manner in which it was received could not have resulted in the slightest prejudice to the appellant let alone have led to a miscarriage of justice. The ground of appeal should be rejected.

Ground 1- Incompetence of defence counsel 31 This ground is concerned with the failure of defence counsel to raise evidence of good character of the appellant during the course of the trial. I have dealt with ground 2 before this ground because counsel for the appellant submitted that the complaint made under this ground gained particular significance in light of the reception of the evidence to which ground 2 relates, raising as it did a suggestion of a threat of violence to the complainant on a prior occasion. I have already indicated my opinion that the evidence was of little importance to the issues raised at the trial and was treated as such by the parties apart from what it said about the complainant's credit. I do not believe that it has any significance in determining the validity of the complaint made about the conduct of the trial by defence counsel. 32 This ground was argued upon the acceptance of a number of assumptions as neither party led any evidence as to what occurred during the trial in support or opposition to this ground of appeal. I am prepared to deal with it as the parties did and assume the following: defence counsel had in his brief a number of testimonials as to the appellant's good character; the persons who wrote those testimonials were available to give evidence; apart from some minor matters in Queensland relating to the misuse of drugs, the appellant had no prior convictions and none for offences of violence; there were no instructions given to, or sought by, defence counsel as to the issue of raising the appellant's character; it was the intention of counsel throughout the trial that the appellant would give evidence. I am not, however, willing to assume that defence counsel did not appreciate the law in relation to the leading of evidence of good character of a particular type as provided by s 110(3) of the Evidence Act. 33 There were two types of character evidence that might have been led at the trial: positive evidence of good character arising from statements in the testimonials and evidence of the absence of convictions for offences of violence. Of course evidence of the first type would have to be adduced from the witnesses who wrote the testimonials and they would have been subject to cross-examination particularly in relation to the appellant's attitude to women generally and the complainant in particular as displayed by him in his answers to the police in the recorded interview. The second type of evidence is less compelling: Seymour v R [2006] NSWCCA 206 at [51]. It also carries with it the possibility of speculation on the part of the jury as to what convictions the appellant might have for other types of offences. To warn them against speculation of that nature would probably emphasise the problem. 34 Statements in the testimonials that were relied upon in support of the ground of appeal included the following:

"……..he is a man of great integrity……...with a strong code of beliefs by which he lives. One of which is abhorrence of violence against women and he has demonstrated repeatedly that he will not tolerate it, let alone indulge in it himself. Over the past 20 years he has conducted many relationships with women, both casual and serious, but has never used force, threats or violence, implied or otherwise, to procure sex………Over several years I saw how he conducted himself with the woman he brought home and how he behaved socially with them and I have never witnessed behaviour that was not consensual……"

"Peter is respectful and fair in his interactions with others"

"On several occasions I have witnessed Peter encourage attractive women to take a taxi home from a party to protect them from their drunkenness and sexual predators. 35 Of course there was no suggestion of any actual threat of violence by the appellant on the night of the alleged sexual assaults. In effect the Crown case was that the complainant had made her views of the appellant well known to him and in particular she had made it clear that she was unwilling to sleep with him. The complainant said that she had told him that she did not appreciate his attentions and he had been warned off by one of the persons at the club on that weekend. The Crown case was that, when he found the complainant asleep on the mattress, the appellant had no reason to believe that she wanted him to have sex with her and nothing that she did displaced that belief. The appellant took advantage of the vulnerable position of the complainant, to whom he had shown some sexual interest on prior occasions and during the evening. 36 Character evidence as disclosed in the testimonials seems to me to have been marginally relevant to the issue before the jury but might have given rise to the opportunity for cross-examination as to the appellant's attitude to women in general and the complainant in particular in light of the assertion that the appellant was "respectful…in his interactions with others" or that he was a man "of great integrity". 37 Further defence counsel's conduct has to be seen against a very favourable ruling that the complainant could not introduce evidence as to the appellant's involvement in a motorcycle club particularly in light of what the complainant alleged that the appellant had said to her about his association with that club. This was significant evidence as to how the complainant regarded him but the trial judge had ruled it inadmissible at least on a preliminary basis. The raising of evidence of character might well have risked that ruling being revisited. When he ruled the evidence as inadmissible, the Judge said that he might reconsider it having regard to what occurred during the trial. 38 Thus any risk of evidence prejudicial to the appellant being introduced in answer to the reliance of character had to be weighed against the significance of the evidence to the issues at the trial. Contrary to the submission made on behalf of the appellant, I doubt that the character evidence would have "significantly strengthened the appellant's position in the eyes of the jury": see R Gust [1999] NSWCCA 265 where the view was expressed that evidence of prior good character may have limited assistance in cases of sexual assault. It was not asserted on the appeal that the evidence of character would have entitled the appellant to a direction that it might have been relevant to the credibility of his account as given to the police and in the witness box. 39 There is no obligation on a trial judge to give any direction to a jury as to the use to be made of evidence of character: Melbourne v The Queen (1999) 198 CLR 1. Whether a direction is given and what that direction should be depends upon the nature of the evidence and the issues raised at the trial. Prior to the introduction of the Evidence Act, s 412 of the Crimes Act (now repealed) required that evidence of the accused's character be received and dealt with as evidence on the question of his guilt. This made a direction to that effect mandatory. But that is not the present position. I doubt that the Judge in the present case would have been required to give the jury a direction on the relevance of good character had it been raised in light of the issues before the jury. With respect I doubt that a statement in at least one decision of this Court relied upon by the appellant to the effect that a direction on character is mandatory is consistent with what was said in Melbourne, cf R v Lewis [2001] NSWCCA 345 at [31]-[32] but see R v Makiski (2004) 151 A Crim R 245 at [26]-[27]. 40 The approach that an appellate court should take to a ground of appeal asserting incompetence of counsel was most recently considered by the High Court in Nudd v The Queen (2006) 80 ALJR 614. There the allegation was that defence counsel was so incompetent that he did not understand the elements of the offence charged against the accused, that he and his solicitor omitted to take a version of the events from the accused and that he failed to call the accused to give evidence. 41 As Gleeson CJ noted, the ground of appeal is that there was a miscarriage of justice arising from the conduct of the trial by defence counsel; at [2]. Generally it is what counsel did and not why it was done that will be the focus of attention; at [8]. However his Honour went on to state (footnotes omitted):

[9] Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v R, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct. 42 The Chief Justice considered why an objective evaluation of counsel's conduct is preferable but also acknowledged that in some case it may be significant to understand why counsel acted as he or she did in order to determine whether there has been a miscarriage of justice. His Honour stated:

[17] There will be some cases in which it is not possible to decide whether injustice has occurred without knowing why a particular course was taken at trial. To take an extreme example, if an accused person failed to give evidence because counsel wrongly advised that an accused is not entitled to give evidence, it is difficult to imagine that a court of criminal appeal would not intervene. The example shows that, although, as a general rule, the test of whether a forensic decision has resulted in an unfair trial is objective, one cannot eliminate the possibility of exceptional cases in which it is relevant to know why a certain course was or was not taken. 43 Similar statements were made by the other members of the Court in determining to dismiss the appeal notwithstanding that defence counsel might have been incompetent. It was held that the trial has been fair notwithstanding the acts and omissions of defence counsel and, therefore, there was no miscarriage of justice. Although the defects in counsel might have been substantial, the prosecution case against the accused was overwhelming leaving him little or no positive case to make against the charge. 44 In TKWJ v The Queen (2002) 212 CLR 124 the complaint was that trial counsel did not call evidence of good character and this had resulted in a miscarriage of justice. There was a threat made at the trial that, if the defence called evidence of good character, the Crown would call evidence from another complainant, K, of allegations of similar misconduct to her as those that were made by the complainant at the trial. Gleeson CJ in dismissing the appeal, stated:

[16] It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K. 45 Gaudron J stated:

[33] Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that "when viewed in combination with the evidence given at trial ... the jury would have been likely to entertain a reasonable doubt about the guilt of the accused" 46 McHugh J stated (footnotes omitted):

[76] In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel's conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel's conduct might have affected the result.

[77] But in other cases - perhaps the majority - the conduct of counsel - although irregular - will not necessarily deprive the accused of a fair trial. Not every error makes the trial unfair. Nevertheless, the irregular conduct of counsel may have affected the outcome. And a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person. 47 Hayne J stated:

[107] No less importantly, however, it follows from the characteristics of a criminal trial which I have identified that, when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?

[108] If there could not be any such explanation, there may have been a miscarriage of justice. It would then be necessary to go on to ask whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led. If, however, there could be a reasonable explanation for not calling the evidence, that will be the end of the matter. It is not to the point then to inquire whether counsel did or did not think about the point, or acted competently or incompetently, even though the conclusion that there could be no reasonable explanation for the course followed at trial would seem to entail the conclusion that counsel did not act competently.

[112] If the relevant question is, as I would hold it to be, whether there could be a reasonable explanation for not calling the evidence, the principal focus of the inquiry remains upon whether the accused had a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed. The focus is not shifted from those matters to what trial counsel did, or did not, think about in the course of the trial. Nor would appellate courts be required to form any judgment about what would have been the better choice for counsel to make when confronted with one of the many and difficult choices that are presented to counsel at trial. If there could be a reasonable explanation for not calling the evidence, it follows that counsel could have chosen to act in that way without criticism. It follows that the outcome of an otherwise regular trial is not to be impeached on the ground that some evidence was not led at trial unless the evidence is fresh, or, if the evidence is not fresh evidence, there could be no reasonable explanation for not calling it and, in either case, the evidence is such that, viewed in combination with the evidence given at trial, the jury would have been likely to entertain a reasonable doubt about guilt. 48 As I have noted there is no evidence in the present case to explain why counsel did not seek to lead any evidence of the good character of the appellant, even in a limited sense and so the Court must consider the matter on an objective basis and on the assumptions that I indicated earlier. If it were necessary on an objective evaluation of the conduct of counsel to determine whether he was incompetent or flagrantly so, I would not be prepared to reach that conclusion. As I have already indicated, on the facts of the particular case and the issues raised for the jury's determination, character, especially if limited to the appellant having no convictions for violence, had little significance in the absence of any evidence of threats or violence toward the complainant. The Crown case was really that the complainant had made her feelings to the appellant quite clear on more than one occasion, and nothing she said or did indicated to the appellant that she had at last fallen for his charms no matter how drunk she might have been. 49 In my opinion there is a reasonable explanation for the omission of counsel to call evidence of good character: firstly, it risked a change in the ruling as to the applicant's membership of the motorbike club and what he had said to the complainant about it and secondly, it risked a concentration on the appellant's inappropriate sexual conduct towards females which were inconsistent with statements contained in the testimonials. In the circumstances of this particular case the evidence of good character would not have greatly enhanced the appellant's chance of being acquitted having regard to the nature of the complainant's allegation. It does not matter that other counsel may have formed a different view as to the competing considerations or even that this Court thought that counsel had made the wrong choice. In my opinion the appellant was not deprived of a fair trial. 50 Counsel referred to a number of cases concerning similar complaints, but they seem to me to be decisions based upon their own facts and none indicate that the approach I favour is inconsistent with the approach taken by the Court in those cases. I am not satisfied that the failure of counsel to lead evidence of character resulted in a miscarriage of justice and the ground should be dismissed.

Ground 3 - Directions on consent. 51 It is not asserted that this ground alone would require the Court to set aside the conviction. There was no oral argument in support of this complaint although it was not abandoned. The last sentence of the written submissions on this ground is as follows:

His Honour's direction was erroneous and, coupled with other aspects of the case led to a miscarriage of justice.

I do not believe that there were any other aspects of the case that led to a miscarriage of justice either alone or taken with this ground even if the complaint were proved justified. However, I shall consider the matter on its merits. 52 In the course of directing the jury on the elements of the offence the Judge dealt with the issue of sexual intercourse and then went on:

Now the next element that has to be proved is that that sexual intercourse happened without the consent of [the complainant]. Now there is one matter of law that I have to tell you about as far as consent is concerned. The law says this. A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to sexual intercourse. Now in this case you have heard there was not any physical resistance by way of fighting or kicking or anything like that.

The law provides, and you might think again this is perfectly sensible and in accordance with commonsense, that that sort of thing is completely neutral. If there is not physical resistance it does not, in law, mean anything one way or another as far as consent is concerned…..

The Judge then went on to direct the jury that the Crown had to prove that the complainant was not consenting and that depended upon the jury's assessment of her evidence. 53 Next the Judge directed the jury on the last element of the offence: that the accused knew she was not consenting or was reckless to that fact. The Judge told the jury that the Crown was relying on "the absence of any discussion" whereas the defence was relying upon the fact that nothing was such as "don't" or "stop it". 54 The summing up was extremely brief. After a three-day trial it took all of nine pages of transcript. There was no review of the evidence at all and the bare minimum of legal directions and warnings. But there was no complaint from either counsel and certainly defence counsel sought no further direction or re-direction on any matter. 55 It is clear that the directions complained of were concerned only with the issue of consent. It was perfectly plain from the context that it was only on that issue that the failure of the complainant to physically resist the appellant by fighting or kicking was "neutral". The Judge was directing the jury in accordance with s 61R(2)(d) of the Crimes Act which is as follows:

a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarding as consenting to the sexual intercourse. 56 It might have been better had his Honour made it clear that the absence of physical resistance was, if taken by itself, neutral but that it was one of the factors that the jury could take into account together with the other evidence as to the complainant's behaviour. But there was no complaint from defence counsel and the Judge did direct the jury in the exact terms of s 61R(2)(d). It could not have been misunderstood by the jury as being "neutral" on the issue of the appellant's knowledge of lack of consent, for as a matter of common sense a failure of the complainant to physically resist the appellant was relevant to his state of mind as to the complainant's consent or lack of consent to his conduct toward her. 57 This is a case where rule 4 applies notwithstanding that the alleged misdirection was in relation to an element of the offence and I am not satisfied that there was a miscarriage of justice as a result of the directions given by the Judge as to the element of the offence. 58 This ground should be rejected. As there is no substance in any of the grounds of appeal against conviction the appeal should be dismissed.

Sentence 59 There are four grounds of appeal relied upon in the application for leave to appeal against sentence. They are:

Ground 4 His Honour erred by failing to take into account the fact that the applicant was a person of good character.

Ground 5 The sentencing proceedings miscarried because counsel for the appellant failed to call any witness to give evidence as to the appellant's good character and made perfunctory submissions on sentence.

Ground 6 His Honour erred by failing to find that there were special circumstances warranting a reduction in the non-parole period.

Ground 7 The sentencing proceedings miscarried because counsel for the appellant failed to make any submissions on the existence of special circumstances.

Grounds 5 and 7- Defence counsel's conduct 60 The sentencing proceedings took place immediately after the jury brought in its verdicts. The Judge asked whether counsel was ready to proceed and he informed the court that he had instructions to proceed that day and needed nothing by way of reports. Defence counsel tendered some testimonials as to the appellant's character. He told the Judge that they were "a selection…from a variety". He went on:

They include two, one from an employer, one from a past employer, one, the last one, from a woman who is a close friend who accompanied him to court on Monday and the two in the middle are people he knows and if you could accept them as a selection of what is far too many, in my submission to burden a court with.

The Judge indicated that he would accept them on that basis. 61 The Court does not know what other testimonials were in counsel's brief or what witnesses were present or available to give oral evidence. There is nothing as to what instruction, if any, defence counsel had about leading evidence on character. The references tendered indicated that the appellant was regarded as highly principled and of excellent moral character, the offences were out of character, he had been highly supportive of a family following the death of a father and brother, and that he was a good worker. There was in my opinion no derelict of duty by defence counsel in choosing only a sample of the testimonials to place before the court when he had indicated to the Judge that he was doing so and the Judge received the evidence on that basis. Later in the hearing the Judge said:

…I've read the references that you've provided me with and I accept what you told me, that they are a selection from a range available to you.. 62 There was no suggestion that the material set out in the testimonials was in dispute. Nor is there any material before this Court to show what the further testimonials would have added to those that were placed before the Court. It does not seem to me that counsel can be criticised of taking what appears to be a sensible course of not over-egging the pudding by placing multitudinous documents before the court all saying much the same thing. It is impossible to see how the failure to adduce further evidence of character led to a miscarriage of the sentencing proceedings. 63 During the course of the proceedings the Judge asked defence counsel, who apparently practiced chiefly in Queensland, whether he was familiar with the "Sentencing Procedure Act" and counsel indicated that he had appeared in sentencing proceedings before in the jurisdiction and he "went through the procedures last night". The Judge referred to the standard non-parole provisions and counsel stated:

As I understand the law, I need to be able to present to you submissions which will take you down from that, you start at 7 years is my understanding of it. My only concern is whether the Court require reports but for a man of this age there seems to be no need for that.

The Judge then retired to read the material. 64 After the Judge returned to court he confirmed with the Crown prosecutor the maximum penalty, being 14 years imprisonment, and that the standard non-parole period of 7 years applied. The prosecutor indicated that because the proceedings were after trial the principles in R v Way (2004) 60 NSWLR 168 were applicable. The Crown conceded that none of the aggravating factors in s 21A(2) applied and went on:

Your Honour in terms of mitigating factors I concede that he doesn't have a significant relevant record. He's only got one relatively minor offence of a dissimilar nature. Whilst he might not exactly say that he's not a person of good character (sic), nevertheless I concede that his record is relatively trivial in the scheme of things. 65 Defence counsel addressed in respect of the standard non-parole period as follows:

…….The critical factors in terms of s 21, 21A(3) that I would ask your Honour to take into account in shifting from what is a starting point of 7 years; 1. his age combined with his good work history, two of the references support that. There's one from his current employer and another from a previous employer. He has good prospects of rehabilitation, in my submission, when one looks at his antecedents, which include a minor drug matter in another state….. 66 Counsel then referred to the fact that the Crown was relying upon recklessness in respect of consent and that his Honour could adopt that as the reason for the verdict. He went on:

And if you adopt that, then it would, in my submission, put him below the statutory minimum. Those factors, that is his age, his employment history, the chance of rehabilitation, the circumstances of the offence, which I don't have to reiterate you've heard them for the last two days………..he's got no violence, he's got no, no sex offences. So in my submission is that they - they are sufficient in themselves to warrant your Honour exercising your discretion and sentencing to a term of imprisonment below the statutory, statutory norm.

After indicating that he did not think that he could be of assistance by reference to cases, counsel concluded his address. 67 The complaint is that he failed to refer to special circumstances for the purposes of shifting the statutory ratio between the non-parole and the parole period, which itself might be a reason for departing from the standard non-parole period. Of course the only factors that could indicate that the appellant had special circumstances was in effect those matters that counsel relied upon in order to have the judge depart from the standard non-parole period. But there was nothing apart from his relative lack of convictions and that he was to spend his first period in custody that might be called in aid of a finding of special circumstances. There was nothing in the material that indicated that the offence was a result of some matter that might be addressed by counselling or that any particular assistance might be gained from an extended period of supervision by the Probation and Parole Service. The appellant was a mature man who was well adapted to living and working in the community and simply took advantage of the vulnerability of the complainant on this particular night. 68 There was, in my opinion, very little, if anything, that defence counsel could have said in support for a finding of special circumstances. I am far from satisfied that there was anything about defence counsel's address, it's brevity or the failure to refer to special circumstances that brought about a miscarriage of justice. The grounds should be rejected.

Grounds 4 and 6- Defects in the sentencing remarks 69 The sentencing remarks were very brief, requiring only two double spaced pages of transcript. While that is not itself an indication of error, there is the risk that a Judge in the avoidance of prolixity will go too far the other way and fail adequately to refer to or discuss matters of significance in the determination of sentence: see R v Thomas [2006] NSWCCA 313. The sentencing remarks in the present case fail adequately in my view to deal with the issue of the standard non-parole period. For example, there is no finding explicitly as to where in the range of offending the offence fell. 70 The Judge stated that he accepted that the offence was one of recklessness with regard to lack of consent. He noted that he was required to impose the standard non-parole period unless there were reasons for departing from it. His Honour stated:

The reasons I have taken into account are as follows. First of all the offender does not have any significant record of previous convictions. Further, in view of the material that has been tendered to me and my assessment of the situation in this case, I believe he is unlikely to re-offend as a result of all this and that he has good prospects of rehabilitation and that is very much based on all these reference before me. And while I am in no way derogating from the gravity of an offence such as rape, I think those reasons entitle me to impose a lesser non-parole period than would otherwise be appropriate. 71 Presumably the Judge found that the objective facts brought the offence within the midrange of seriousness as the only matters he takes into account for departing from the standard non-parole period are those subjective matters that must be excluded when evaluating where in the range of seriousness the offence falls. If that is so, the Judge reduced the standard non-parole period by almost half based upon these subjective factors. In my opinion, if that is how the Judge reasoned, the sentence is unduly lenient. 72 The first complaint is that the Judge did not refer to the appellant's good character. It is not clear whether this was an omission as there was aspects of his behaviour that might have disentitled him to a finding in that regard so far as his attitude to women and the complainant was concerned and the material about his membership of a motorcycle club and what the complainant said he had told her about his trouble with police. It seems that the Crown was not prepared to concede that he had good character and defence counsel did not mention it in his address. 73 However that might be, if it were accepted that the appellant enjoyed good character, that fact might indicate that he had good prospects for rehabilitation and lead to a finding that he was unlikely to re-offend. The Judge made both of these findings. Good character might also indicate that the offending was an aberration but that seems to me to follow from the fact that the Judge made the finding that he was unlikely to re-offend. Similarly although good character might suggest that specific deterrence was not required, the finding that he was unlikely to re-offend had the same consequence. I am unable to see how the failure to refer to good character, if it was a failure, could have impacted on any finding the Judge made or his assessment of the sentence to be imposed. 74 The final complaint is that the Judge did not refer to special circumstances in relation to s 44 of the Crimes (Sentencing Procedure) Act. A Judge should refer to this topic because it is an important part of determining the sentence even in standard non-parole period cases. At least the Judge should indicate whether a finding has been made or not, although a failure to do so is not necessarily indicative of error. In R v Kaliti [2001] NSWCCA 268 Wood CJ at CL stated:

[6] His Honour made no express reference, in his reasons for sentence, to the question of whether special circumstances had been established or not. Whilst it is unlikely in the extreme that his Honour, as a very experienced trial judge, overlooked this issue, particularly as he set the ratio in accordance with the section, and whilst a failure to make reference to the provision does not automatically establish appellable error: Mason [2000] NSWCCA 207 and McIntyre NSWCCA 18 April 1995; this Court has emphasised more than once the desirability of sentencing judges making it clear that there has been advertence to the issue. (See Brindley (1993) 66 A Crim R 204 at 207 and Jenkins (1999) NSWCCA 110). 75 In any event there does not seem to me to be any material capable of giving rise to a finding of special circumstances or at least requiring that the Judge indicate that no such finding had been made. As was pointed out in R v Simpson (2001) 53 NSWLR 704 at [19] the circumstances of the appellant appear quite unremarkable rather than special, being no more than, little criminal record, a finding of good prospects of rehabilitation and the unlikelihood of re-offending. It was these very matters that led the Judge to reduce the standard non-parole period by almost 50 per cent. Any further reduction on account of these matters, which themselves do not indicate that there should be a lesser non-parole period than the statutory relationship would produce, would in my view lead to an unjustified double counting and result in a sentence that was inadequate. 76 I propose that the appeal against conviction be dismissed. Leave should be granted to appeal against sentence but that appeal should also be dismissed. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.