Gillespie v R

Judgment

1. WARD JA: This is an application by the applicant (Trevor Gillespie) for an extension of time within which to apply for leave to appeal and, if the extension is granted, an appeal from the applicant's conviction on 24 July 2018 of a series of historical sexual assault offences dating back to the 1980s. The conviction followed a trial in the District Court of New South Wales before Buscombe DCJ and a jury of eleven. This was the second trial of those charges, after an earlier jury was discharged and that trial aborted.
2. The eight counts with which the applicant was charged, to which he pleaded not guilty and for which he was ultimately convicted, were: five counts of indecent assault of a child under 16; one count of buggery; and two counts of homosexual intercourse with a male above 10 and under 18 years; all committed on the son of a family friend of the applicant.
3. The applicant was sentenced on 21 September 2018 to an aggregate sentence of imprisonment for 5 years, with a non-parole period of 2 years 6 months, commencing on 21 September 2018 and expiring on 20 September 2023. He will first be eligible for release to parole on 20 March 2021.
4. Although the notice of appeal indicated that the applicant was also seeking to appeal against his sentence, no such appeal was pressed.
5. Accordingly, the present application concerns an appeal against conviction only.
6. As indicated above, the applicant requires an extension of time within which to apply for leave to appeal, since the notice of appeal or application for leave to appeal was not filed until 24 April 2020. The Crown did not oppose the extension of time and (having regard to the applicant's age and the custodial sentence imposed on him) an extension of time to 24 April 2020 should be granted (although no explanation for the delay seems to have been proffered by the applicant's solicitor).
7. Relevantly, the applicant requires leave to appeal from the interlocutory decision the subject of ground 1 of the appeal (see below) and requires leave pursuant to r 4 of the Criminal Appeal Rules (NSW) (Criminal Appeal Rules) to appeal in respect of each of the remaining grounds of appeal because no objection was taken at the trial in respect of the matters the subject of complaint in those grounds.
8. For the reasons that follow, I am of the opinion that leave to raise each of the respective grounds of appeal, including ground 1, should be refused because of inutility; but that, even if leave were to be granted on one or more of those grounds, they are without substance and hence should be dismissed.

Grounds of appeal

1. The applicant relies on the following four grounds of appeal (his principal ground of appeal being ground 1): GROUND 1 The Court erred in concluding that it was in the interests of justice to not grant [sic] the Applicant a short adjournment to allow the attendance of experienced counsel, when met with such application. Such error resulting in the retention of Incompetent Counsel, which in turn caused a miscarriage of justice, in the following respects: 1. Failed to withdraw as Counsel in circumstances of incompetence. 2. Failed to advise that such incompetence enabled 5 [sic] the defendant to withdraw instructions on any lack of confidence that a declaration as made in Court that Counsel himself considered not experienced enough to conduct the hearing; and 3. Failed to advise the defendant that he was incompetent. GROUND 2 A miscarriage of justice occurred in that the counsel for the Appellant failed to put to the complainant, significant evidence as to the Complainants [sic] credit that he was lying about the existence of a tattoo on the Accused, and further cross examination on the origin of such tattoo story including collusion between the complainant and a witness. GROUND 3 The Court erred by, without proper objection, allowing the re-examination of the complainant, in circumstances that the cross-examination of the complainant was done by video recordings taken from the first trial and thereby not providing the Jury as tribunal of fact a fair assessment of the demeanour of the accused as juxtaposed by the two settings resulting in unfairness to the accused. GROUND 4 The learned judge erred in failing to direct the jury pursuant to the available inferences that could be made in relation to the absence of the evidence of the mother of the complainant.
2. It is convenient next to set out the factual background.

Background

1. The following factual background is drawn from the Crown's summary of the trial and the materials put before this Court on the appeal.

Factual background

1. The applicant (who is now in his early 90s) was a friend of the complainant's parents. The complainant is now 48 years old. At the time of the offences, he was aged between 10 and 14 years. The applicant befriended the complainant's family and was a trusted family friend. The Crown says that he was, to some degree, seen by the complainant, at the relevant time, as a father figure.
2. In 1982, the applicant separated from his wife and began visiting and staying over regularly at the complainant's parents' home in Maraylya. The applicant would go with the complainant's family on camping trips to Wallaga Lake every year and the applicant would also take the complainant to stay at his brother's house at Bermagui, near Wallaga Lake. The offences in question were found to have been committed between 1982 and 1986 at various locations in New South Wales.
3. The trial judge found on sentence that the counts were representative in that they were part of a course of sexual misconduct by the applicant towards the complainant over time. The conduct in question involved the applicant on various occasions: playing with his own penis, playing with the complainant's penis, inserting his finger into the complainant's anus and having anal intercourse with the complainant. The numerous acts of alleged sexual abuse were of a young boy by a man in his fifties. The abuse continued over several years. It seems that there was an escalation over time in the level of sexual offending. The counts in the indictment were not isolated incidents.

First trial

1. The first trial began on 5 March 2018 before Hanley SC DCJ at Penrith District Court. Mr Bellanto QC appeared with Mr Battley of Counsel on behalf of the applicant. I interpolate to note that it cannot, therefore, be said - and it was not here suggested - that Mr Battley was not well appraised, at the time of the second trial, of what had transpired during the course of the first, aborted, trial.
2. At the first trial, there was argument in respect of the Crown's application to adduce tendency evidence from three witnesses.
3. The first witness was another complainant (to whom I will refer as A). A asserted that the applicant had also sexually abused him when he was a child. There had been an earlier trial in relation to alleged offending against A. At that trial, the jury had returned "hung" verdicts.
4. The second witness was the applicant's daughter (to whom I will refer as B).
5. The third witness was the complainant.
6. His Honour admitted the tendency evidence of A and of the complainant (as cross-admissible between the counts), but not the evidence of B.
7. There was also argument at the first trial in respect of the Crown's application to adduce context evidence, which his Honour ultimately admitted over objection.
8. There was also argument over the Crown's objection to parts of the applicant's recorded police interview (ERISP) on the basis that it offended the credibility rule (the applicant in that interview contending that the complainant was lying about the sexual abuse because he was "after money" and alleging that the complainant had stolen from him in the past). His Honour later ruled that the majority of the credibility evidence in respect of the complainant was admissible.
9. At the first trial, the Crown Prosecutor opened to the jury in respect of the tendency evidence anticipated to be adduced from A; and Mr Bellanto QC opened to the jury in respect of issues in dispute, including the allegations of any sexual activity involving the applicant and A (see T 51-60 on 5 March 2018).
10. There was evidence by the complainant that in 1992 or 1993, at his grandmother's wake, the complainant told his mother what the applicant had done to him, on the proviso that she would not tell his father (see T 116 on 6 March 2018). In cross-examination, the complainant agreed that he had told the police in his first statement that, when his mother asked him at his grandmother's funeral whether the applicant had interfered with him, he had originally said "no" (the complainant's evidence was that this was because his father was sitting there) but he said that ten minutes later had admitted to his mother that the applicant had interfered with him at Maraylya (see T 137).
11. The complainant first reported the matter to the police in 2014. He said that he did so when he found out he was going to have a daughter (see T 117). The complainant made three statements to the police (on 15 June 2015, 17 December 2015 and in mid-2017) (see T 129, T 131). When cross-examined as to the statements he had made to the police, the complainant's evidence was that he did not mention anything in the first statement to the police about penile/anal intercourse because he was embarrassed (see T 129), only first disclosing anal penetration in the second police statement (see T 131).
12. The complainant was cross-examined on the credibility evidence and other aspects of his evidence. Relevantly, for present purposes, the complainant was cross-examined about the existence of a tattoo (an "old navy tattoo … like the old sailors used to get") that he had described as being on the applicant (see T 167-168 on 7 March 2018), the complainant's evidence being that it was on the applicant's arm (he thought "on his forearm") but he could not recall which arm or what part of the arm. When it was suggested to the complainant that the applicant did not have a tattoo, the complainant asked if he could have a look (see T 168.42). It is to be noted that, for reasons explained below, this answer was edited out of the recorded evidence that was played for the jury at the second trial.
13. There was then some discussion at the first trial in the absence of the jury as to three possibilities for evidence to be put before the jury as to the existence or otherwise of a tattoo: first, that photographs could be taken of the applicant's arms; second, that the Crown could inspect the applicant's arms and there could be an agreed fact; or third, that the applicant could disrobe in front of the jury so that the jury could make an assessment (see T 181-187). That issue was not resolved at that time and cross-examination of the complainant subsequently resumed. After questions on an unrelated topic, Mr Bellanto QC attempted to have the applicant disrobe in front of the jury so that the jury could assess his arms in respect of the existence or otherwise of the tattoo. It appears that this took the trial judge by surprise and that a comment was then made by his Honour (as to this being a "stunt" - see T 191.47) which led to an application by Mr Bellanto QC for his Honour to recuse himself (which application was refused) and then for the jury to be discharged (which application was granted).

Discharge of first jury and re-listing of trial

1. On 7 March 2018, after the successful application for the jury to be discharged, Hanley SC DCJ stated in his reasons that the "trial could be brought forward and heard during what was traditionally the mid-term break". His Honour stated that the "trial would have priority" (see T 9 of the judgment of Hanley SC DCJ on 7 March 2018).
2. On 8 March 2018, the first jury was discharged. The Crown Prosecutor asked the then trial judge whether his Honour intended to list the trial on 16 July 2018 and his Honour confirmed that he did (T 218.42 on 8 March 2018). The matter was listed for a second trial commencing on 16 July 2018 at the Penrith District Court. It is here to be noted that at the time that Hanley SC DCJ discharged the jury, as I indicated above, his Honour gave the matter a priority listing.
3. On 8 June 2018, the trial date was confirmed at a mention.
4. On 11 July 1018, Mr Bellanto QC sent an email to the Associate to Buscombe DCJ (before whom the second trial had by then been listed) indicating that he had difficulties starting the trial on 16 July 2018 because he was then in a trial that would continue into the following week and stating that "[his] preference would be that the case of Gillespie be adjourned…". The Court listed the matter for mention at 2pm on 12 July 2018.
5. Mr Battley appeared for the applicant at the mention on 12 July 2018. Buscombe DCJ informed the parties that his Honour had listed the matter because he understood that Senior Counsel had some difficulties and that his Honour wanted to make it clear that the trial had priority and that he wanted the trial to proceed without delay. Mr Battley then informed his Honour that Mr Bellanto QC was in another trial but that Mr Bellanto QC could appear the following Thursday (see T 3.34 on 12 July 2018). It is clear from the transcript of that mention that, while Buscombe DCJ understood that Senior Counsel had some difficulties, his Honour was adamant that the trial was the priority trial on the following Monday and that his Honour was concerned that it would start on that day. His Honour said (at T 2.30-33) that: … you have the transcript of what occurred on the last occasion. If the accused sees fit, he can engage another senior counsel. The first day is presumably going to be consumed with empanelling, the openings and the playing of the recording, isn't it?
6. His Honour noted that most of the cross examination of the complainant appeared to have been completed and told Mr Battley that he had between then and Monday to speak to Mr Bellanto QC about the matter to get any further guidance or assistance from him; and that there were matters that Counsel could raise with Mr Bellanto QC "between now and Monday and we'll see where we are" (T 2.40-41).
7. His Honour said (at T 3.36-46): … I'm not starting the trial on Thursday. This Court does not sit at the convenience of counsel. I've never forgotten and will never forget how difficult it is to run a criminal barrister's diary but you've got to factor in, if you get jammed then someone else is going to have to run it. This is not a case where there isn't a junior. I accept, as you tell me, your experience is in family law but you took the brief and you're a barrister of over 25 years' experience. You've got a very experienced senior. Much of the cross examination of the complainant's been done and there are several days between now and Monday. I repeat what I said; I expect the trial to commence on Monday morning. If you're going to make an application to further cross examine the complainant, then you'll need to make it on Monday morning.
8. His Honour thrice again made clear that his Honour wanted it clearly understood that the trial was commencing on Monday, saying that "I'll see what the position is on Monday but you should be under no illusion, my position at the moment is I expect the trial to commence" (at T 5.13-14).
9. Pausing there, what emerges from the transcript is that his Honour was not foreclosing the possibility of an application on 16 July 2018 to adjourn the hearing but that, at least insofar as the matters raised in the mention before his Honour amounted to an application to vacate the hearing at that stage, his Honour was not prepared at that stage to grant such an adjournment.
10. Relevantly, in the context of the grounds of appeal now raised, on 12 July 2018, Mr Battley informed his Honour that cross-examination of the complainant had not finished and said that he did not have the ability properly to run an historical sexual assault trial, notwithstanding his experience as a barrister in family law since 1992. The applicant points to the following exchange that took place on that occasion (at T 1.23-40): HIS HONOUR: These things happened, but the trial is the priority trial on Monday. As far as I'm concerned, it will be starting Monday. You are the junior in the - BATTLEY: I am a junior but I am a junior with some deficiencies. The other point I ask your Honour to take into consideration is the case of Phillips that says only one counsel, except in exceptional circumstances. Your Honour might regard this as exceptional circumstances. But I must candidly put that I've spent my entire life in the Family Court. Because this was a criminal matter, both I and my client particularly wanted someone of Mr Bellanto's experience and Mr Bellanto has not finished the cross examination and - HIS HONOUR: I thought he had, because I was reading the transcript and I understand a matter arose. I just haven't brought the transcript in but at one point Mr Bellanto says, "I've got no further questions for the witness." BATTLEY: On reflection and view in the manner in which the matter finished on the last occasion, that is not Mr Bellanto's opinion now.
11. In his affidavit on the present application, Mr Battley corrected this to say that the reference to "entire life" referred to his "legal life" (see Mr Battley's affidavit sworn 7 July 2020 at [12], which paragraph though not read by the Crown was subsequently the subject of cross-examination of Mr Battley by Mr Blaker - see T 5.19-26).
12. Pausing here, it is clear from the above exchange that Mr Battley had conferred with Mr Bellanto QC at some point by then as to the position in relation to cross-examination (though Mr Bellanto QC's then opinion apparently changed thereafter - see below).
13. Relevantly too, his Honour, on 12 July 2018, put the parties on notice of the application of ss 306J and 306K of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) (because the complainant's evidence was required to be adduced by way of the recorded evidence from the first trial, subject to any application to have the complainant recalled). There was the following exchange (at T 1.42-2.26): HIS HONOUR: You'll need to turn your attention to s 306J of the Criminal Procedure Act. Because as I understand it, the Crown has given notice, it's going to tender the recording and only in very limited circumstances can a witness he required to go back into the witness box. Need to look at s 306J. When were you admitted as a barrister? BATTLEY: 1992. HIS HONOUR: If you take a junior brief to a leading criminal silk in a criminal trial, regrettably, it happens. I haven't forgotten when it's happened to me many years ago. They become jammed. Then, regrettably, you often have to carry the matter. It has the priority trial, I'll be hearing it. The accused is 90, they're historical sexual assault allegations; it's been listed for trial before. While there was some debate with his Honour about this Court's workload, I am very keen to start the trial on Monday. It has to be before me because the other judge who's here next week can't be here the following so if the matter does go into the following week, it's going to cause all sorts of problems. The following week is this Court's short matters week. I would be very keen not to lose any time at all in terms of the practical running of the trial. As I say, if you've been admitted at the bar since 1992 and you take a junior brief to a criminal silk and if the silk becomes jammed, you've got the transcript, the openings. Most of the cross examination of the complainant appears to have been completed. I just want make it clear to you, I expect the trial to commence on Monday. BA TTLEY: As always, not said in cliché terms, I hear what your Honour says. But your Honour, the accused is 90. He particularly sought and wanted an experienced criminal barrister to represent him. I don't fit that bill. I hear what your Honour says obviously about having been at the bar but your Honour accept, I hope, even considerable experience in family law doesn't qualify one to run a trial of such sensitivity. He's 90. The complainant alleges that he was sexually abused as a child. In my submission, it requires somebody of a greater ability than I. I'm not being immodest, your Honour, I'm just being honest, I just don't have that ability.
14. As adverted to already, his Honour made clear that he considered that Mr Battley had time to speak with Senior Counsel for guidance or assistance and that, if the accused saw fit, he could engage another senior counsel.

Second trial

1. On 16 July 2018, when the trial commenced, the applicant did not make any application for an adjournment.
2. The Crown (as his Honour had anticipated) made an application under s 306J of the Criminal Procedure Act that the complainant be compelled to give further evidence in circumstances where the trial was aborted before re-examination of the complainant had taken place (see T 2 on 17 July 2018).
3. His Honour then enquired with Mr Battley as to whether the cross-examination of the complainant had in fact finished (Mr Bellanto QC having said, in the first trial, after the Crown objected to the manner in which the evidence in respect of the tattoo issue was proceeding, that he had nothing further to ask the witness - see at T 190). In this connection however, it is to be noted that the Crown Prosecutor, in the course of making submissions on the subject of recusal, had appeared fairly to accept that the cross-examination was not finished (see at T 207.27 on 7 March 2018).
4. Mr Battley initially opposed the Crown's application (that the complainant be recalled) on the basis that the position of the applicant was that the cross-examination of the complainant had finished (see at T 3 on 16 July 2018) (i.e., a change from the position advised to his Honour on 12 July 2018). The trial judge allowed the Crown's application to re-examine the complainant.
5. The Crown also made an application to adduce hearsay evidence in the second trial, because A was unavailable to attend court. The trial judge refused the Crown's application on the basis that it had not established that A was unavailable. Therefore, the Crown's tendency witness (it will be recalled, that being A), played no part in respect of the issues to be determined at the second trial. The Crown thus noted before this Court that, even though Hanley SC DCJ had ruled that the tendency evidence was admissible, at the second trial, Buscombe DCJ ruled that the tendency evidence was inadmissible under a hearsay exception. This is of relevance insofar as it seems to be suggested before this Court that the applicant was deprived of the opportunity to test the possibility of collusion between A and the complainant; whereas it was the applicant's own application to exclude the evidence of A.
6. On 17 and 18 July 2018, the complainant's recorded evidence from the first trial was played for the jury. As adverted to above, the DVDs containing the recorded evidence of the complainant from the first trial (MFI 1, MFI 2, MFI 3 and MFI 4) had (quite properly, I note) been edited to remove the discussion about the tattoo evidence (that being the exchange that had ultimately led to the discharge of the first jury) (see T 168.40-169.16 and T 189.29-190.50 on 7 March 2018).
7. On 19 July 2018, a juror was sick and the trial was adjourned to the following day, when that same juror was still unwell. A decision was then made that the trial proceed with 11 jurors.
8. On 20 July 2018, the complainant was recalled and re-examined about limited matters (not, it should be noted, about the tattoo evidence).
9. As was his right, the applicant did not give evidence.
10. In the defence case, a dermatologist (Professor Shumack) was called to give evidence about the issue of the existence or otherwise of the tattoo. He gave evidence via audio-visual link on 23 July 2018. Professor Shumack had examined the applicant on 15 May 2018 and had prepared a report of the same date (Exhibit 2). Professor Shumack's evidence was that the applicant did not have a tattoo at the time of examination but that the applicant did have a 10cm scar on the inner aspect of his lateral right forearm. Professor Shumack said the scar was consistent with the stated cause of skin cancer removal earlier that year (see T 104).
11. There was no Crown case in reply.
12. On 23 July 2018, there was some discussion, in the absence of the jury, about a "motive to lie direction", due to the answers given by the applicant in his ERISP. Then, after closing submissions by the Crown and Mr Battley to the jury, there was further discussion in the absence of the jury about directions and the elements of the offences.
13. Buscombe DCJ invited the parties to email his Associate in respect of the directions they would be requesting (see, for example, at T 132.7). Emails regarding proposed directions were sent on behalf of the Crown on 23 July 2018 and by Mr Battley on 24 July 2019. There was no request by the defence for a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 direction about the failure of the Crown to call the complainant's mother.
14. On 24 July 2018, Buscombe DCJ summed up to the jury.
15. The jury returned verdicts of guilty on all eight counts that same day.

Submissions

1. It is convenient now to turn to the parties' respective submissions.

Ground 1 - refusal to adjourn the hearing

1. As to ground 1, the parties' submissions are as follows.

Applicant's submissions

1. The applicant contends that the Court erred in concluding that it was in the interests of justice not to grant the applicant a short adjournment to allow the attendance of experienced counsel at the second trial. It is contended that such error resulted in the "retention of Incompetent Counsel", which in turn caused a miscarriage of justice, in the following respects: that Counsel failed to withdraw as counsel "in circumstances of incompetence"; that Counsel failed to advise that such incompetence enabled the applicant to withdraw instructions; and that Counsel failed to advise the applicant that he was incompetent. As noted above, the applicant requires leave to appeal this interlocutory decision.
2. There was some confusion in oral submissions before this Court by the applicant's solicitor as to whether (as Ground 1 is framed) an application to adjourn the hearing was in fact made or whether the complaint now made is that such an application was not made (either on 12 July 2018 or on 16 July 2018). However, the applicant's written submissions proceeded on the basis that, on 12 July 2018, Mr Battley had sought a vacation or short adjournment of the trial dates (on the basis of Mr Bellanto QC's foreshadowed non-appearance the following week) and the present application should be dealt with, favourably to the applicant, on that basis.
3. It is submitted for the applicant, as I understand his submissions, that the trial judge, in weighing the application to adjourn, conflated the question of the import of a s 306J notice (in effect, as indicia of, or treating this as, a fait accompli), and thus dealt with the adjournment application by "balancing the further utility of appearance of senior counsel" in those circumstances. It is submitted that Mr Battley was unable competently to deal with the said argument; and that, in effect, this was "asking the inexperienced to argue, by reference to an argument that such person was incapable of". It is said a miscarriage of justice occurred "simply presuming the strength of the utility for senior counsel to appear".
4. The applicant submits that, that either by his Honour's "amalgamation of the indicia of the video evidence issued under s 306J" (I interpose to observe that it is not by any means clear what is meant by this, nor was it clarified in oral submissions but which I understand to mean that his Honour in some way erroneously conflated the question of whether it was likely that the complainant would be re-called for re-examination by the Crown with the question whether there should be an adjournment by reference to the inability of Senior Counsel to appear at the trial) or, in the alternative, by reason of Counsel's inability to object and mount a competent application to vacate, that Counsel was not fit to run the application to vacate that was made on the day (i.e., it seems, on 12 July 2018).
5. It is said for the applicant that, by consideration of the 306J issue at the time of the adjournment application, the Court gave "undue air" to a matter of which counsel, on his own admission, was not competent to address.
6. The applicant says that the trial judge's reasoning was "circular". It is said that the "hypothesis" by the trial judge was simply that a reason for the non-adjournment was the difficulty of the case, which in turn "manifested into" a miscarriage of justice, when met with the eventual determination (on 16 July 2018) under s 306J of the Crown's application to re-examine the complainant.
7. The applicant says that the reasoning of the trial judge was plainly that the oncoming issues at trial were "not complex" because s 306J would "limit the works [sic] involved".

Crown's submissions

1. The Crown submits that leave should be refused (or, alternatively, if granted then this ground of appeal should be dismissed) for three reasons.
2. First, that at no stage did the applicant make a formal application for an adjournment.
3. Second, that even if the Court did rule on an adjournment application, that ruling is separate to a determination of whether a miscarriage of justice has been occasioned due to trial defence counsel's conduct.
4. Third, that any refusal of an application for an adjournment is discretionary and that a trial judge is entitled to take into account the strong public interest that, once fixed for hearing upon the basis that the parties were ready to proceed, a criminal trial should ordinarily proceed with expedition (see Johnson J, with whom Simpson J (as her Honour then was) and Grove AJ agreed, in Slotboom v R [2013] NSWCCA 18 at [36] (Slotboom v R), his Honour there citing R v Alexandroaia (1995) 81 A Crim R 286 at 291 (R v Alexandroaia)). In this connection, the Crown says that this Court should be "reluctant to interfere" with the discretionary refusal of an adjournment application (quoting Johnson J at [37] in Slotboom v R).
5. The Crown says that the applicant has not established that the trial judge acted upon a wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations or has made a mistake as to the facts.
6. Insofar as the applicant's submissions refer to the competency of counsel, the Crown notes that it is well established that, in cases of alleged incompetence of counsel, the enquiry is an objective one.
7. The Crown says (and, I accept) that, contrary to the applicant's submission, a miscarriage of justice is not established simply by "presuming the strength of the utility for senior counsel to appear". The Crown submits that the objective circumstances show that the applicant had a fair trial; noting by way of example that Counsel in the second trial successfully applied to prevent the Crown from adducing tendency evidence (see at T 21-24 on 16 July 2018).
8. The Crown further says that (contrary to the applicant's submission) Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419 (Alkhair v R) is not "a guiding judgment where Macfarlan JA provided for non- exhaustive elements of miscarriage of justice"; rather, that [31] of that decision (see below) sets out the relevant principles applicable in the context where trial counsel's conduct is criticised. The Crown notes that, here, the applicant has not set out the conduct of counsel it is alleged gave rise to a miscarriage of justice.
9. The Crown points to the "heavy burden" on an appellant seeking to establish a miscarriage of justice on the basis of an allegation of incompetence (citing TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [74]) and that if there could be a reasonable explanation justifying the conduct of counsel, it is unlikely that a miscarriage of justice has occurred (citing Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at [25] per Hayne J, McHugh J agreeing; TKWJ at [26]). It is noted that the High Court has said that that qualifications on the principle that parties are bound by the conduct of their counsel must be "carefully controlled'' (citing Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301) (Nudd v The Queen).

Ground 2 - failure to adduce evidence in relation to the tattoo

1. As to ground 2, the parties' submissions are as follows.

Applicant's submissions

1. As excerpted above, Ground 2 contends that a miscarriage of justice occurred in that counsel for the applicant failed to put to the complainant significant evidence as to the complainant's credit (namely, that he was lying about the existence of a tattoo on the applicant); and further cross-examination on the origin of the "tattoo story", including collusion between the complainant and a witness.
2. The applicant argues that, in a case where the charges were of historical sex offences, with little direct evidence but that of the complainant's testimony, the question of motivation to lie is critical. In this regard, reference is made to the importance of jury directions of the kind referred to in of R v Murray (1987) 11 NSWLR 12; (1987) 30 A Crim R 315 and Liberato v The Queen (1985) 159 CLR 507 at 515 per Brennan J; [1985] HCA 66 (Liberato v The Queen) as to the need carefully to scrutinise the evidence of the complainant.
3. The applicant says that, in the present case, it was put to the complainant that he was lying in his evidence as he was seeking financial compensation (see T 150 on 6 March 2018), and was "otherwise being vindictive to the applicant, for past acrimony".
4. It is noted that the question is not merely whether to "'believe'" or "not 'believe'" the complainant, or whether the jury "'prefers'" the complainant's evidence over the available motives (citing Liberato v The Queen at 515 per Brennan J and 518-20 per Deane J, De Silva v The Queen [2019] HCA 48; (2019) 375 ALR 1 at [5]-[13] per Kiefel CJ, Bell, Gageler and Gordon JJ).
5. It is submitted that a prosecutor must do more than invite a jury to believe. The applicant points to the recognition as to the dangers in overvaluing demeanour (such that no jury is to make the manner in which a witness gives evidence the only or even the most important factor in its decision as to whether the prosecution has proved guilt beyond reasonable doubt) (citing Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[32] per Gleeson CJ, Gummow and Kirby JJ; Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433 at [81]).
6. The applicant says that, here, the question that was to be determined was on the issue of discounting the motive evidence. It is said that such motive evidence was put before jury in the recorded testimony of 6 March 2018 but that the first trial was truncated at the point of a critical challenge to the credit of the story of the accused. It is said that the importance, to the applicant's case, as to the presence of a tattoo was that the complainant had identified a tattoo on the applicant, which simply was not true, and that such mistaken tattoo identification was also made in an unrelated proceeding (which it is said meant that the mistaken identification of a tattoo was capable of being actual evidence of witness corroboration or unreliability, "of one sort or another").
7. The applicant submits that Mr Battley "appearing, against instructions" in the second trial failed to "pickup" the line of questioning (where Mr Bellanto QC had left the evidence) which was being dealt with by Mr Bellanto QC at the time of the discharge of the first jury; and that this failure meant that the complainant was not challenged with respect to the fact that: the tattoo identification was a lie by the complaint; and that such tattoo identification was an "artifact of a reformulation of prior complaint against the applicant for which was dismissed, but also shared such inconsistency of identification of a tattoo". (Pausing here, there is no evidence to support the suggestion that Mr Battley acted in any way without, or contrary to, instructions and such a submission is quite unfair.)
8. It is submitted that this failure is explained by the incompetence of Counsel (referring again to the above exchanges with the trial judge on 12 July 2018 in this context).
9. The applicant points to the fact that medical evidence was led in the defence case as to the likely non-existence of a tattoo at any stage; and says that the failure of Counsel to continue this line of questioning meant that the complainant was not challenged "in the most important issue of the trial". That medical evidence (which the applicant says, but the Crown disputes, was not challenged by the Crown) is said to be to the effect that it was highly improbable that such a tattoo "was ever in existence". It is, however, noted that it was conceded by Professor Shumack that it was possible that such tattoo was removed, though his opinion was that given the lack of skin discoloration that such removal was improbable.
10. It is noted that, as part of the prosecution's application to lead tendency evidence, material was served by the Crown that did contain a statement by a separate complainant, which was a statement given by A, that the defendant had a tattoo. It is submitted that such a document ought to have been raised in the challenge of the evidence of the complainant. It is said that "[a]t large, but untested" was the issue of collusion between "A and the accused [sic]" (I interpose to note presumably here referring to the complainant) as to the evidence which he provided to the Court.
11. The applicant submits that, "like a crumb on a trail", such artifact (that was the "tattoo story") was not pressed. It is submitted this was an oversight by Mr Battley, which meant that justice did miscarry to the applicant (not, it is said, by forensic decision of experienced and competent counsel but by the fact of the incompetence itself).
12. It is noted for the applicant that a court may set aside a jury verdict, notwithstanding the failure of counsel to take objection or seek a direction or to apply for a discharge of the jury, if satisfied there has been a miscarriage of justice; and that a court may also set aside a jury verdict where there is reasonable ground for the belief that the fair administration of justice has been, or is likely to be, interfered with. It is submitted that the failure to put the issue of the tattoo to the complainant means that there has been an interference with the fair administration of justice.

Crown's submissions

1. The Crown notes that, as an application for further cross examination was not sought at the trial, the applicant requires leave to rely on ground 2.
2. The Crown emphasises that the complainant was cross examined about the tattoo; and, more generally, the complainant was cross examined that there was absolutely no sexual activity or sexual interference between him and the applicant and the complainant disagreed (see T 175 on 7 March 2018).
3. The Crown points out that the complainant gave evidence that ''he has got a tattoo" (T 166.27 on 7 March 2018), ''on one of his arms" (T 166.47) and "I think it's on his forearm" (T 167.26). Specifically, the cross examination proceeded as follows (see at T 167.26-47; T 168.4-48): Q. Your best memory is that on one or more occasions, you saw him and he had a tattoo on one of his arms. A. I think it's on his forearm. Q. You think? A. Like on there - yeah, yeah. I'm - okay, you're trying to make me out to be a liar but- Q. I'm not trying to make you out to be - I'm just asking you what- A. I'm - well, I'm answering you. Q. -what your best memory is? A. My best memory is that he has a tattoo and it's on one of his arms. Q. And it's not the bicep, it's the forearm, is it? A. I think it's the forearm, yeah. I think it's the forearm. Q. You saw it. We didn't see it. We don't know anything - you're the one that's giving the evidence. Now, all I'm asking you is - and I'm testing your recollection. I'm testing your memory and I'm testing your reliability because a lot of your evidence depends upon your reliability. A. I don't see how a tattoo stops him from being - doing what he's done. … Q. Having been through all that, I can suggest to you that he does not have a tattoo? A. Can we have a look then? Q. I beg your pardon? A. Can I have a look? Q. We can arrange that. A. Okay.
4. Furthermore, the Crown says that whether the applicant has or had a tattoo in the 1980s, or whether the complainant has correctly remembered whether the applicant has or had a tattoo in the 1980s, is not directly relevant to whether the eight counts in the indictment occurred.
5. As to the applicant's submission (see at [81] above) that the "mistaken identification" of a tattoo on the forearm of the applicant was "capable of being actual evidence of witness corroboration or unreliability, of one sort of another" and reference to "unrelated proceedings", the Crown says that this submission is unclear, and the unrelated proceedings are not identified. (Pausing here, in the context of this case, the only unrelated proceedings to which reference is here made would presumably be the previous trial involving the complainant, A.)
6. As to the applicant's submission (see at [82] above) that trial counsel in the second trial acted "against instruction", the Crown points out that there is no sworn evidence to substantiate such a serious allegation. In this connection, the Crown points to the sworn evidence from Mr Battley that he did not act against instructions and that the applicant did not instruct him to make an application further to cross-examine the complainant (see Mr Battley's affidavit sworn 7 July 2020 at [21]).
7. It is noted that the record of proceedings does not indicate that junior counsel made the forensic decision not to require further cross examination on his own. Reference is made in this regard to the following: that, in the first trial, Senior Counsel stated that he had "nothing further to ask the witness'' (see T 190.44 on 7 March 2018); that, in the second trial, Mr Battley confirmed with Buscombe DCJ that no application would be made for the complainant to be cross examined in the second trial (see T 3.10-18 on 16 July 2018); and, significantly, that Mr Battley stated that "our position is that the cross-examination has finished" and that "Mr Bellanto says...".
8. It is submitted (and, I accept) that it is clear from the transcript that Mr Battley had conferred with Senior Counsel about whether cross examination had concluded; and confirmed to his Honour that it had so concluded (reference being made also by the Crown in this context to the judgment on the application for the Crown to re-examine on 16 July 2018 at p 1).
9. The Crown further says that appeal ground 2 (complaining about a lack of cross-examination of the complainant) is without merit for the following two reasons.
10. First, that the applicant's counsel had in fact put to the complainant that there was no tattoo (see T 168.40 on 7 March 2018), noting that this evidence was adduced by Senior Counsel in the first trial and was adduced as pre-recorded evidence in the second trial.
11. Second, that further "cross examination on the origin of such tattoo story including collusion between the complainant and a witness" would be irrelevant as there was no evidence adduced about any collusion between the complainant and "a witness". Relevantly, it is noted that, contrary to the applicant's submissions, evidence from the tendency witness was irrelevant in the second trial as Buscombe DCJ refused the Crown's application to tender the transcript of A's previous evidence from the trial involving counts alleged to have been perpetrated on him.
12. Further as to the applicant's submission as to the alleged incompetence of trial counsel, the Crown says that the allegation that the trial counsel was incompetent is to be determined by examining the record of the trial to determine from the objective circumstances whether the accused had a fair trial. It is contended that the applicant did have a fair trial; and thus that, even if leave is granted, this appeal ground should be dismissed because (even if there was an error in defence counsel not cross examining more about the tattoo, which it is contended there was not) the applicant has not established that it gave rise to a miscarriage of justice where by "reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial" (quoting Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [14] per French CJ, Bell, Keane and Nettle JJ (Filippou v The Queen), citing Weiss v The Queen (2005) 224 CLR 300 at [17]-[18] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
13. In this connection and by way of summary, the Crown submits that there was no miscarriage of justice because of the following three factors.
14. First, as noted above, the complainant was cross-examined (and hence challenged) about the tattoo (and, it is said also that, for this reason, no Browne v Dunn (1893) 6 R 67 (HL) issue arose).
15. Second, that defence counsel in the second trial adduced evidence from Professor Shumack to the effect that if the applicant had a tattoo it would be visible (see, for example, at T 106.40 on 23 July 2018); and, it is said that (contrary to the applicant's submissions) the Crown did challenge this evidence by its cross-examination of Professor Shumack.
16. Third, that defence counsel was able to make lengthy submissions to the jury which focused on the inconsistencies in the complainant's evidence and in particular on the tattoo. It is noted that defence counsel's closing address suggested to the jury that the complainant was argumentative in respect of the tattoo (see T 122.1 on 23 July 2018). Specifically, defence counsel closed to the jury as follows (see at T 123.16-30): … The tattoo in this case has achieved some notoriety. [The complainant], in cross examination, was adamant that Mr Gillespie had a tattoo on one of his arms. He described it as "dark, very dark." Mr Bellanto challenged him, and he's responded to Mr Bellanto, "You're trying to make me out to be a liar." He said the tattoo that he believed that he said that Mr Gillespie had, looked like an old Navy tattoo, like the old sailors used to get. Ladies and gentlemen, you heard this morning from Dr Shumack, the dermatologist, and he told you that in his professional opinion that Mr Gillespie did not have a tattoo. In fact, you'll recall that I took him to the answer - and you have a copy of this report at (iii): is it possible that if he had a tattoo, it could fade to the point of non recognition, from July 1982 to today. He adhered to his answer, "No," and answered in response to my question, he said that was his professional opinion.
17. It is noted that the trial judge comprehensively summarised defence counsel's submissions about the tattoo (see SU at 22-23): While the accused himself has not given evidence in the trial, he has called Dr Shumack. You have the doctor's evidence before you essentially in the form of his report and he was cross examined by the Crown about the content of his report. That report was placed before you on the issue of whether the accused, Mr Gillespie, had ever had a tattoo. The complainant gave evidence that he recalled a tattoo on one of the accused's arms. The effect of Dr Shumack's evidence is that an examination of the accused's arms suggested he has never had a tattoo. […] The Crown submitted that even if you accepted that Dr Shumack's evidence meant that you would reject the complainant's evidence about the accused ever having had a tattoo as being unreliable, it did not mean that his evidence about the essential elements of each of the charges here is unreliable. Mr Battley submitted to you that Dr Shumack's evidence was further evidence of the unreliability of the evidence given by [the complainant].
18. Thus, the Crown submits that, contrary to the applicant's submissions, the "tattoo story" was pressed in the second trial; and it is said that there has been no miscarriage of justice.

Ground 3 - error in permitting re-examination

1. As to ground 3, the parties' submissions are as follows.

Applicant's submissions

1. As noted, the third ground goes to the fact that the Crown was allowed to re-examine the complainant, in circumstances where the cross-examination of the complainant was done by adducing the video recordings taken from the first trial.
2. In general terms, it is submitted that, in the context that the adjournment application was denied on the basis that no further evidence would be led, the Court ought not to have allowed re-examination. It is submitted that, in determining the application under the Criminal Procedure Act, the Court ought to have considered the effect that the re-examination of the complainant, in person apposite to the video cross-examination, would give unfair weight to the re-examination alone.
3. Specifically, reference is made to the following exchange in which Counsel made submissions on 12 July 2018 (see T 3.19-32; T 3.50-4.17): HIS HONOUR: … As I say, you'll need to look at the provisions of the legislation and consider what application you're making in relation to any further cross examination of the complainant and you need to have a careful look at 306J, as I see it. We'll deal with that on Monday morning. But the fact is with this regime, I've had situations - rather unusual, I accept - it's not infrequently the case where the recording of the complainant, these days, is played from an aborted trial and it's a completely different counsel representing the accused at the subsequent trial. That's where we're at. I appreciate here, you 're going to make some application to further cross examine the complainant but it seems to me that the way in which the legislation has now been structured means that that may very well happen. In an event like this where the counsel who did the first trial is not available to do the second trial, if you do get permission to further cross examine the complainant, then it's a different counsel; that can't be helped. … 306J, I think 306I deals with the admissibility of the evidence of the complainant from the earlier trial in the new trial and it's 306J and K, K where the complainant may elect to give further evidence and J where, if the record of the evidence of the complainant is admitted the complainant: "is not compellable to give further evidence in the proceedings unless the Court is satisfied that it is necessary for the complainant or special witness to give further evidence: (a) to clarify any matters relating to the original evidence of the complainant, or (b) to canvas information or material that has become available since the original proceedings, or (c) in the interests of justice." That's why I'm drawing it to your attention.

Crown's submissions

1. It is noted that the specific complaint in this ground of appeal was not the subject of objection and, again, that leave is required. The Crown points out that it was not submitted to the trial judge that the re-examination would be given "unfair weight" (cf the applicant's submissions); and it is said that there is no error in the ruling by Buscombe DCJ to permit the re-examination.
2. The Crown notes that, although counsel at trial originally objected to the Crown's application for leave to re-examine, the only basis advanced in support of the objection was that there was no further cross examination at trial and that this was a relevant factor for the Court to take into account on the question of whether leave should be granted (see at T 3.22-38 on 16 July 2018). It is noted that trial counsel did not raise as an objection the fact that examination and cross examination would be recorded, whereas the re-examination would be "live"; and, furthermore, that the transcript shows that trial counsel ultimately withdrew his objection.
3. In this connection, the Crown says that, even if leave were to be granted, this appeal ground should be dismissed because even if there was an error (which it is contended there was not) the applicant has not established that it gave rise to a miscarriage of justice where by "reason of irregularity or otherwise, an accused has not received a trial according to law or has not received a fair trial" (again, quoting Filippou v The Queen at [14] per French CJ, Bell, Keane and Nettle JJ).
4. It is submitted that there was no miscarriage of justice because: the re-examination was very short (two and 1/3 pages of transcript), noting that, in her closing address, the Crown Prosecutor referred to the complainant giving evidence in re-examination for a "very short period of time" (see at T 111.10-11 on 23 July 2018); the re-examination did not "cover anything material" (it is noted that trial Counsel successfully objected to some of the Crown Prosecutor's questioning on the basis that the evidence adduced from cross-examination was clear: see at T 67-68 on 20 July 2018); the trial judge explained the process clearly to the jury (see, for example, at T 16.20-45; T 26.15-18 and T 31.41-32.5); trial counsel also explained the procedure (see at T 31.25-34); and the trial judge gave the standard warning to the jury (see at T 32.25-32) as follows: … Well, the complainant - because the complainant wasn't re examined in the last trial by the Crown, the Crown is going to re examine the complainant in the witness box which was something Madam Crown touched upon but I'm going to let the complainant be in Court with a support person. Again, complainants are allowed to have a support person when they're in Court. Again, that is the standard procedure and you draw no adverse inference against the accused at all. It's just part of the standard procedures that apply in these types of cases…

Ground 4 - failure to direct as to absence of evidence from mother

1. Finally, as to ground 4, the parties' submissions are as follows.

Applicant's submissions

1. It is submitted that the trial judge erred in failing to direct the jury as to the available inferences that could be made in relation to the absence of the evidence of the mother of the complainant (referring to RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3; Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 as to the Crown's onus to prove guilt beyond reasonable doubt and the prosecution duty to present its case fairly, including the calling of all relevant witnesses (and see also R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279)).
2. It is noted that in RPS, Gaudron ACJ, Gummow, Kirby and Hayne JJ said (at [29]; and, see also Callinan J at [111]): 29. … the issue is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, the jury should entertain a reasonable doubt about the guilt of the accused.
3. It is submitted that, central to the present case, was the opportunity to offend. It is noted that the mother of the complainant was said to be the friend of the applicant, and the only other person present shortly before certain charges (charges 3 to 4) were committed.
4. The applicant says that, when considering this issue in the context of directions, the unavailability of the witness was not considered but, rather, only the delay of complaint (referring to the transcript on 24 July 2018 at T 4.29-5.41): HIS HONOUR: The warning about and the consequence of delay I've tied to the issue of complaint. Perhaps I'll read out the whole of what I'm proposing to say. That way, Madam Crown, it won't be focusing just on the things which perhaps you're not going to be happy about. "You have heard evidence that the complainant did not complain about what he claims that the accused did to him until, he says, he told his mother in 1992, 1993 or 1996. As I see it, just pausing there, he was uncertain about when this conversation with his mother happened. At one point, he said might have 92 or 93. Another point, he said 96 at his grandmother's funeral as I read the evidence again last night. "Although he said he did not tell his mother any detail, you did not hear any evidence from the complainant's mother in the trial to confirm that. The complainant's mother was contacted by Detective Hughes but did not provide the police with a statement. [The complainant] made no complaint to the police about what he alleges the accused did to him until 2014 and made his first statement to them on 15 June 2015. The delay in making a complaint about the alleged conduct of the accused does not necessarily indicate that the allegation that the offences were committed is false. There may be good reasons why a victim of sexual assault may hesitate in making or may refrain from making a complaint about such an assault. However, the delay in making a complaint is a matter that you may take into account in assessing the credibility of the complainant's evidence as to what he said the accused did. The accused has argued that the delay in making a complaint is inconsistent with the conduct of a truthful person who has been sexually assaulted and so you should regard this as indicating the complainant's evidence is false. Counsel for the accused asks you to consider the delay here and the fact no evidence was called by the Crown from the mother to confirm that the complainant made complaint to her, as he says he did. The delay in going to the police, in this case, is approximately one of 30 years. You should also consider that the accused is under a real disadvantage because of the delay in the making of the allegation to the police in this case. It is clear on the evidence that a number of persons who may have been able to give relevant evidence here, if the complaint had been made earlier, are dead. The evidence is that the complainant's father is dead, the accused's brother is dead as is the accused's cousin. You should not speculate about what those persons might have said if they had been alive and able to give evidence. However you should, in considering whether the Crown has proved the charges beyond reasonable doubt, have regard to the fact that the absence of those persons causes the accused a disadvantage as he is unable to ask them questions about a number of relevant issues raised by the evidence such as how often he stayed at the complainant's parents' home and how often the complainant stayed at his brother's premises and where he slept when he stayed there. The accused, because of the delay, has been prejudiced in his defence of the allegations. You should, in those circumstances, scrutinise the prosecution's evidence with great care." That's the extent of what I say on the question of delay. It can't be disputed, Madam Crown, if the complaint had been brought in a timely way, those three witnesses would have been available; they would have been in a position to give relevant evidence. The issue in the trial as to how often the accused stayed at the complainant's family home, how often the complainant attended at the accused brothers' places, where he slept and they are the sites of where the allegations are alleged to have occurred. It's a 30 year delay. I appreciate that the CCA has said it's not just the delay but it isn't here, is it? I just think that this is one of those cases where it isn't just the delay.
5. It is submitted that this is not the case that the missing witness was "criminally associated with the defendant". While it is accepted that it could hardly be suggested that the prosecution should call a witness where the witness has not made a statement of some sort, it is said that where the witness' account was "fresh in his or her memory", evidence from investigating police who obtained a verbal statement could be led, assuming that the witness was to be or had been called.
6. Following from the above, it is said that in this case there is no explanation given by the police as to the evidence of the mother of the complaint and no jury directions were made. The applicant says that, in circumstances that the mother "played" a very significant part in the prosecution case, it is submitted that a jury direction ought to have been given to the effect that the jury "'should not speculate about what evidence the absent witness may have given'".

Crown's submissions

1. The Crown submits that the complainant's mother "did not feature much in the trial". It is said that it was not in dispute that the applicant visited the complainant's house nor that he took the complainant on trips away. It is noted that the complainant complained to his mother about the sexual abuse in 1992 or 1993 or 1996 but he did not go into detail (see, for example, T 136-137 on 6 March 2018). It is also noted that the complainant's mother refused to provide the police with a statement (see T 91.4-20 on 20 July 2018) and this was adduced as evidence.
2. Contrary to the applicant's submission, the Crown says that it could not be expected that the mother would be a witness in the prosecution. It is said that there was no statement from the mother in the brief of evidence, and it could not be said that the mother was a material witness to establish the counts in the indictment. Further, it is noted that there was no request by defence to make the mother available.
3. Furthermore, and again contrary to the applicant's submission, it is said that the cross-examination of the complainant shows that it was not disputed that the applicant visited the complainant's home nor that he took him away on trips. It is said that the opportunity to offend does not appear to be ''central" to the applicant's case. In that connection, the Crown says that the applicant's answers in his ERISP do not support the applicant's submission that "central to this case was opportunity to offend" (see pp 14, 22, 32).
4. It is noted that in R v RTB [2002] NSWCCA 104, where the complainant's account suggested that her six year-old sister came into the room during one of the counts (see at [10]) in the indictment and the sister was not called in the Crown case, in relation to the submission by RTB asserting that the trial judge was in error in not directing the jury as to the significance of the Crown having failed to call her sister or explain her absence, the Court (Spigelman CJ, Wood CJ at CL and Kirby J) said (at [29]-[31]): 29. The submission is, of course, based upon the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. in Ghazal v G10 (1992) 29 NSWLR 336, Kirby P made the following comment upon that rule: (at 343) "The rule in Jones v Dunkel is one of commonsense reasoning. It provides that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the case of the party who might be expected to call the witness. ... The rule has no application if the failure to call the witness is satisfactorily explained or readily understood." (emphasis in original) 30. Here, the Crown, presumably took the view that the absence of the six year old child could be readily understood (even in the context of a prosecution based upon the evidence of a nine year old complainant). Counsel then appearing for the appellant arguably took the same view. He did not seek the direction which the appellant now suggests his Honour was obliged to give. The Crown, in its submissions, suggests, in these circumstances, Rule 4 of the Criminal Appeal Rules should apply. 31. His Honour was not obliged to give the direction suggested. Had his Honour been asked to give such a direction, he may or may not have done so. There having been no application to the trial Judge, it is appropriate to apply Rule 4 and refuse leave to appeal upon this ground.
5. In the present case, it is said that the mother's absence was explained by the fact that she refused to provide a statement. It is again noted that defence did not request for her to be called nor seek any direction in respect of her absence.
6. The Crown says that, pursuant to r 4 of the Criminal Appeal Rules, leave ought to be refused to raise appeal ground 4 as such a direction was not requested. It is noted that the trial judge specifically invited submissions from counsel as to the directions by which he should be bound (see T 108; T 129-132); and, in addition, the trial judge paused and asked whether the parties wished to raise matters during his summing up to the jury (see SU at 26). It is noted that at no stage during the trial did counsel request a direction in respect of the complainant's mother. It is said that the failure by defence counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing because, in the atmosphere of the trial, counsel saw no need for it.
7. It is said, in this regard, that the fact that no objection was taken at the time of the trial by either counsel, nor that a direction was sought, is cogent evidence that trial counsel, absorbed in the atmosphere of the trial, saw no injustice in what was done (see Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [121]).
8. In any event, the Crown says that the trial judge's directions and warnings about the delay in complaint (as extracted in the applicant's submissions and set out below) show that the absence of the mother as a witness was the subject of direction. Specifically, his Honour's summing up contained the following (see SU at 16-18): "… I want to move on to another topic, which is the delay in [the complainant]'s complaint. You have heard evidence that the complainant did not complain about what he claims the accused did to him until, he says, he told his mother either in 1992, 1993 or 1996. Although, he said he did not tell his mother any detail. You did not hear any evidence from the complainant's mother in the trial to confirm that. The complainant's mother was contacted by Detective Hughes but did not provide the police with a statement. [The complainant] made no complaint to the police about what he alleges the accused did to him until 2014 and made his first statement to them on 15 June 2015. The delay in making a complaint about the alleged conduct of the accused does not necessarily indicate that the allegation that the offences were committed is false. There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault. However, the delay in making a complaint Is a matter that you may take into account in assessing the credibility of the complainant's evidence as to what he said the accused did. The accused has argued that the delay in making a complaint is inconsistent with the conduct of a truthful person who has been sexually assaulted and so you should regard this as indicating that the complainant's evidence is false. Counsel for the accused asks you to consider the delay here and the fact no evidence was called by the Crown from the mother to confirm that the complainant made complaint to her as he says he did. The delay in going to the police, in this case, is approximately one of 30 years. You should also consider that the accused is under a real disadvantage because of the delay in the making of the allegation to the police in this case. It is clear on the evidence that a number of persons who may have been able to give relevant evidence here, if the complaint had been made earlier, are dead. The evidence is that the complainant's father is dead: the accused's brother is dead as is the accused's cousin. You should not speculate about what those persons might have said if they had been alive and able to give evidence. However you should, in considering whether the Crown has proved the charges beyond reasonable doubt, have regard to the fact that the absence of those persons causes the accused a disadvantage as he is unable to ask them questions about a number of relevant issues raised by the evidence such as how often he stayed at the complainant's parents' home and how often the complainant stayed at his brother's premises and where he slept when he stayed there. The accused, because of the delay, has been prejudiced in his defence of the allegations. You should, in those circumstances, scrutinise the prosecution's evidence very carefully."
9. Further to the applicant's submissions as to the mother's evidence and her absence as a witness, the Crown says that the evidence adduced in the Crown case explained the absence of the mother, including that the officer-in-charge gave evidence that the mother refused to provide a statement. Furthermore, the Crown objects to the proposition put forward by the applicant that the mother "played a very significant part in the prosecution case".
10. As the Crown does in relation to the other grounds, it is submitted that, even if leave is granted, this appeal ground should be dismissed because, even if there was an error (which it is contended there was not), the applicant has not established that it gave rise to a miscarriage of justice where by "reason of irregularity or otherwise, an accused has not received a fair trial according to law or has not received a fair trial (again, quoting Filippou v The Queen at [14 per French CJ, Bell, Keane and Nettle JJ).

Determination

1. As noted in Potier v R [2015] NSWCCA 130 (Potier v R) (see at [539]), the Court of Criminal Appeal in R v Birks (1990) 19 NSWLR 677 (R v Birks) considered the circumstances in which conduct of the case by defence counsel may lead to the quashing of a conviction. There, after directions had been given to the jury which invited the jury to treat the conduct of the defence counsel as a relevant factor when engaging in their own decision making process and when forming views as to the credibility of the accused, defence counsel informed the trial judge that the failure to cross-examine the complainant as to certain matters had been the result of his own oversight.
2. Gleeson CJ noted (see at 683) that, as a general rule, a party is bound by the conduct of his or her counsel and that counsel have a wide discretion as to the manner in which proceedings are conducted. His Honour went on to say (at 684) that: It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time, the Courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious.
3. At 685, his Honour summarised the relevant principles, the third of which was: 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.
4. In Potier v R, it was noted (at [542]) that: 542. The two features in Birks which his Honour considered took it out of the ordinary run were first, that the matter about which Counsel had virtually failed to cross-examine at all went to the whole issue in relation to a serious charge and second, that there were various ways in which the problem, once it had become apparent during the cross-examination of the appellant could have been dealt with. It was being put to the appellant that the story he gave in evidence was different from that which he had given his lawyers when in fact it was not. There was available evidence to support him and to rebut the inference that the jury was invited to draw from Counsel's conduct. His Honour said: "The failure to deal with the matter was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better. This was not a matter of taking a calculated risk. The barrister simply did not know what to do, and so, until it was too late, he did nothing."
5. As noted above, where incompetence of counsel is alleged, the question for the Court is whether a miscarriage of justice has occurred in the sense that the appellant lost a chance of acquittal that was fairly open (see TKWJ at [25]-[26] per Gaudron J (Gummow J agreeing), [79] per McHugh J (TKWJ v The Queen); Nudd v The Queen at [158] per Callinan and Heydon JJ; R v Birks at 685 (Gleeson CJ, as his Honour then was, Mclnerney J agreeing); Alkhair v R at [31]) and that this is an objective inquiry (see Nudd v The Queen at [10]). It is noted that it must be demonstrated that there is a significant possibility that the acts complained of affected the outcome of the trial (see Roach v R [2019] NSWCCA 160 (Roach v R); Davis v R [2017] NSWCCA 257 (Davis v R); Alkhair v R; Moustafa v R [2019] NSWCCA 89 (Moustafa v R)).
6. Furthermore, in relation to the conduct of counsel, both parties have referred to Alkhair v R, where Macfarlan JA (with whom Rothman J and Bellew J agreed) set out the following principles relevant when considering whether a miscarriage of justice has arisen from trial counsel's conduct of the proceedings (at [31]): 31. I draw from these authorities the following principles relevant to the present case: (1) To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel's conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial. (2) Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf. (3) Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant's legal representatives' reasoning at trial or to evidence as to communications between the appellant and those representatives. (4) The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open.
7. With the above in mind, I turn to the four grounds of appeal here raised.

Ground 1

1. As to ground 1, assuming, in the applicant's favour, that what occurred on 12 July 2018 was an application for an adjournment of the trial (to allow the attendance of experienced Senior Counsel), I do not accept that error in the requisite sense has been shown in the making of the decision not to grant such an adjournment.
2. It is clear from the transcript of 12 July 2018 that his Honour was mindful of the fact that the second trial had been given a priority listing; and it may be inferred that his Honour was conscious of the need to ensure the just and efficient management and conduct of the trial (principles which are the subject of specific statutory provision - see, for example, Criminal Procedure Act, Ch 3, Pt 3, Div 3; and see also, for example, Slotboom v R at [36] per Johnson J; R v Alexandroaia at 291) and the public interest in the efficient administration of criminal justice.
3. In this connection, the fact that his Honour took into account the likely role that defence counsel would be required to perform in the second trial (and, in particular, that the complainant's evidence would be by way of video recording, even if subject to a likely application by the Crown to recall the complainant for re-examination) does not bespeak error in the exercise of the discretion whether to grant an adjournment. Similarly, I do not see that it has been shown that the learned trial judge acted upon a wrong principle, or took into consideration extraneous or irrelevant matters, or failed to give weight or sufficient weight to relevant considerations or made a mistake as to the facts.
4. Indeed, to my mind, the applicant's submission appears to be predicated on an erroneous assumption (see, for example, Alkhair v R at [31] per Macfarlan JA, as excerpted above) that there should be found a miscarriage of justice based on the presumed utility of senior counsel experienced in criminal law appearing at the trial.
5. It is clear from the authorities (see, for example, TKWJ v The Queen at [25]-[26] per Gaudron J (Gummow J agreeing), [79] per McHugh J; Nudd v The Queen at [158] per Callinan and Heydon JJ; R v Birks at 685 per Gleeson CJ, Mclnerney J agreeing; Alkhair V R at [31]) that, where incompetence of counsel is alleged, the question for the appellate court is whether a miscarriage of justice has occurred in the sense that the appellant lost a chance of acquittal that was fairly open and that this is an objective inquiry (see, for example, Nudd v The Queen at [10]). It is dispositive, to my mind, that what must be demonstrated is that there is a significant possibility that the acts complained of affected the outcome of the trial (see, for example, Roach v R; Davis v R; Alkhair v R; Moustafa v R).
6. It is relevant here to note that, at the mention on 12 July 2018, the trial judge noted his Honour's appreciation that Senior Counsel had some difficulties and that his Honour made it clear that the trial had priority, that the trial should proceed without delay, and that the accused, if he felt it necessary, could engage another senior counsel. Furthermore, it is clear from the transcript of the hearing on 16 July 2018 that the applicant had the benefit of Senior Counsel's input as to the conduct of the hearing in his absence.
7. In relation to the issue raised on 12 July 2018 as to a potential s 306J application (it will be recalled, this being said by the applicant to have given rise to a miscarriage of justice because Mr Battley was, it is said, unable competently to deal with the argument), it is relevant to note that it was left open to Mr Battley to press again on 16 July 2018 for an adjournment application with the benefit of input from Senior Counsel in the interim as to how such argument might be framed. It is not plausible to suggest that Counsel of some twenty years' experience was incapable of arguing competently an adjournment application simply because his or her experience was mainly in another area of law.
8. Nor does the fate of the unsuccessful adjournment application lead to the conclusion that the trial then miscarried.
9. As to the re-examination itself, the following matters should be noted. First, that this re-examination was only on very limited matters and the complainant was in re-examination only for a very short period of time. Second, and relatedly, the re-examination did not cover anything material. Third, Mr Battley successfully objected to some of the questioning on the basis that the evidence adduced from cross-examination was clear. Fourth, in closing the Crown Prosecutor observed that the complainant gave evidence in re-examination only for a "very short period of time" (as noted above, see at T 111.10-11 on 23 July 2018). Fifth, the trial judge explained the process to the jury; trial counsel also explained it and the trial judge gave the standard jury warning or direction. Each of these matters tells against the proposition that, even if one assumes favourably to the applicant that Senior Counsel would have successfully objected to the re-examination, the fact that re-examination occurred has ultimately occasioned a miscarriage of justice.
10. In this regard, I should also note the applicant's submission that trial counsel did not raise as an objection the fact that examination and cross examination would be recorded evidence whereas the re-examination would be in person (noting also that Mr Battley ultimately withdrew his objection). To my mind, this complaint is met by those matters which I have just identified as to the limited extent of the re-examination, what was said to the jury in closing by the Crown Prosecutor and also by the trial judge.
11. Accordingly, it has not been established that the failure of Mr Battley to withdraw as Counsel (even assuming it would have been open to him, consistent with his professional and ethical obligations, to do so) gave rise to a miscarriage of justice. Similarly, I consider that it has not been established that the refusal to grant an adjournment resulted in the retention of (relevantly) incompetent counsel and in turn caused a miscarriage of justice as contended.

Ground 2

1. As to ground 2, to my mind, this ground is disposed of by reason of the fact that the complainant was cross-examined both as to his credit and as to the existence of a tattoo on the applicant.
2. Furthermore, as adverted to above, the submission that there was a miscarriage of justice arising out of the failure of defence counsel to put to the applicant the evidence of A (in order to suggest collusion between the witnesses) is inconsistent with the fact that the evidence of A had been excluded as a result of the successful application by Mr Battley (as hearsay evidence) and where Mr Bellanto QC had himself sought (unsuccessfully) to have that evidence excluded at the first trial.
3. Finally, as the Crown points out, Mr Battley adduced expert medical evidence to the effect that the applicant did not have a tattoo at the time of examination, that the applicant did have a scar on the inner aspect of his lateral right forearm and that this scar was consistent with the stated cause of skin cancer removal. No miscarriage has been shown to have resulted from the fact that Mr Battley (after, it would be recalled, having had the opportunity to confer with Mr Bellanto QC as to whether to continue cross-examination) did not pursue cross-examination as to the tattoo.
4. In this connection, to my mind, identification of the applicant as the offender (by reference to the presence of a tattoo) was not, it seems, a central issue in this case (noting that the applicant, on his own case, was a family friend who spent extended periods of time with the complainant and his family). That is to say, unlike in many other sexual assault cases, the identification of the offender by reference to some unusual or unique physical characteristic was not fundamental to the prosecution's case. In this regard, it is also to be noted that the alleged tattoo was on the applicant's forearm and, one would think, would potentially have been observable at times other than during the offending conduct.
5. Accordingly, this ground also fails.

Ground 3

1. As to ground 3, this ground fails for the reasons which I have given in relation to ground 1.
2. In amplification, I note that it has not been explained, or shown, specifically how or why any unfairness was occasioned to the applicant by reason of the different modes by which the complainant's evidence in cross-examination and re-examination was adduced. In this respect, I would again emphasise that the procedure was explained to the jury by the trial judge and was the subject of comment by the Crown Prosecutor. In this connection, Mr Battley submitted expressly that if there would be no further cross-examination then that would be a matter that the trial judge ought take into consideration when determining the application under s 306J for re-examination (see T 3.36-38).
3. Furthermore, it is to be noted that, in the usual course (that is, where evidence is not bifurcated because of the discharge of a jury and aborting of the trial), the Crown could have re-examined as of right (as noted by, for example, the Crown Prosecutor at T 2.44 and the trial judge at T 4.1). Indeed, his Honour, in determining the application, observed (see at 2): Given that the Crown did not have an opportunity to re-examine prior to the discharge of the jury, and given I am told that the cross-examination was in effect completed, it seems to me that there is no reason to depart from the usual trial procedure; that at the end of the playing of cross-examination of the complainant the Crown should be permitted, if it wishes - and I understand it does - to re-examine the witness in accordance with usual practice but it must be borne in mind that it must be true re-examination.
4. Furthermore, I do not see that the re-examination impermissibly trespassed into adducing further evidence-in-chief (noting also that Mr Battley successfully objected to aspects of the re-examination).
5. Finally, the observations which I have just made in relation to the tattoo evidence apply also to this ground.

Ground 4

1. As to ground 4, I am not persuaded that the failure to give a direction as to the lack of evidence from the complainant's mother gave rise to a miscarriage of justice (and no such direction was sought); rather, to my mind, the summing up was fair to the applicant.
2. Specifically, I accept the Crown's submission (and, do not accept the applicant's submission to the contrary) that the mother did not play a significant part in the prosecution case. It is of some particular relevance, in this regard, that the opportunity to offend was not central in this case. That this was so is amply demonstrated when one considers the cross-examination of the complainant and the applicant's answers in his ERISP.
3. Furthermore, I accept that that the mother's absence was patently explicable by the fact that she refused to provide a statement to the police. In this connection, it is to be noted that her refusal was adduced in the evidence (it will be recalled, including that the officer-in-charge gave evidence that the mother refused to provide a statement). In this context, it could not have been expected that she would be a witness in the prosecution.
4. I note what was said by Kirby P, as his Honour then was, in Ghazal v G10 (1992) 29 NSWLR 336 (at 343) that: "The rule in Jones v Dunkel is one of commonsense reasoning. It provides that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the case of the party who might be expected to call the witness. ... The rule has no application if the failure to call the witness is satisfactorily explained or readily understood." [Emphasis added]
5. As to the conduct of the defence in relation to this ground, it must be noted that the defence did not request for the mother to be called nor did the defence seek any direction in respect of her absence (even when the learned trial judge specifically invited submissions as to the directions and paused to ask whether the parties wished to raise matters during his summing up).

Conclusion and orders

1. It follows that none of the appeal grounds has merit and that leave to bring those grounds of appeal should be refused.
2. I would propose the following orders: 1. Extend time for the filing of the application for leave to appeal to 24 April 2020. 2. Refuse the application for leave to appeal on all grounds.
3. WILSON J: I agree with Ward JA.
4. IERACE J: I also agree with Ward JA.

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