As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics."
41 The appellant must show that the failing or error of counsel was a material irregularity and that there was a significant possibility that it affected the outcome of the trial: TKWJ at [79] (McHugh J).
42 In Ali v The Queen [2005] HCA 8; 79 ALJR 662 Hayne J (with whom McHugh J agreed) said at [25]:
"the question of miscarriage does not turn on a factual inquiry into why trial counsel acted or did not act in a particular way. That kind of inquiry cannot be made. Rather, the question is whether there could be a reasonable explanation for the course that was adopted at trial. If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred."
43 Thus, in general, an appellate court does not make a factual inquiry into trial counsel's instructions or why trial counsel did or did not act in a particular way. However, it has been acknowledged that there may be circumstances where such an inquiry may be appropriate: Nudd at [9].
44 The primary matter raised by the appellant was an alleged failure by his counsel to dispute the authenticity of the videotape evidence and to call expert evidence from Dr Tibbitts, an electrical engineer, and Ms Storey-Whyte, an independent consultant specialising in analysis of recordings, speech and language samples, in support of the contention that the tapes had been doctored or tampered with. However, the appellant in his evidence accepted that Section B of Exhibit A depicted what occurred between him and the complainant on 10 July 2004 and that he could make out words on the recording which indicated the complainant was rejecting his advances. The prosecution's expert, Mr Ringrose, in a report which was before the court on the voir dire, accepted the authenticity of the videotape and that part of Section B of Exhibit A was recorded over part of Section A.
45 Evidence was adduced on the appeal as to the instructions given to the appellant's trial counsel and solicitor. The appellant gave evidence that at all times he had instructed his counsel and solicitor that he wished the experts to be called and the issue of the authenticity of the tapes to be contested. The appellant said that he was not told that Dr Tibbitts would not give evidence and he considered she would do so if she were paid. However, there was a difficulty as he was lacking in funds. He said that he was not told that Ms Storey-Whyte was not able to assist. His present partner, Ms Bentley, also asserted that the appellant's legal representatives were instructed at all times that the experts were to be used.
46 Counsel for the appellant gave evidence on appeal that the appellant had initially wished to contest the authenticity of the tapes on the basis that there had been a conspiracy involving numerous people against him and this was part of the conspiracy. Counsel, after considering the matter and the expert reports of Dr Tibbitts and Mr Ringrose, strongly advised the appellant that he was wasting his time pursuing that issue and should deal with the real issue in the case, namely consent. The appellant was initially reluctant to accept that advice but eventually agreed and instructed counsel accordingly.
47 The appellant's solicitor confirmed that she had the appellant's instructions when she so stated in court. She said that the appellant's expert, Dr Tibbitts, under no circumstances was prepared to come to court to give evidence on behalf of the appellant and that Ms Storey-Whyte, the other expert qualified by the appellant, informed the appellant's solicitor she could not give evidence which would assist the appellant. The appellant's solicitor said the appellant was aware of these matters. Even if those facts were not established, the appellant did not show that his lawyers did not hold reasonable and bona fide beliefs in those facts, then providing a basis capable of supporting the decisions taken in relation to the conduct of the trial. Whether erroneous or not, it was open for counsel in these circumstances not to challenge the authenticity of the videotape and to concentrate on the critical issue of consent and the appellant's belief that his actions were within the consent of the complainant. It follows that no miscarriage of justice is shown to have occurred.
48 Once the appellant accepted that Section B of the videotape correctly recorded the relevant activities, it was strategically appropriate to abandon that issue and to concentrate on the issue of consent. This was the advice which the appellant received: the Court finds that he accepted that advice at the time, although he had doubts on occasions thereafter as to whether this was the appropriate course. (The finding is, on the Court's view as to the correct test, unnecessary.)
49 The appellant also said he had given instructions to his counsel to tender a toxic forensic report at the trial. The document reported there were no illegal substances in the complainant's system. However, as it was not until the following Sunday that the complainant went to hospital and no evidence that she was drugged had been adduced, it was reasonable and rational for counsel not to tender the report. No miscarriage of justice is demonstrated in his failure to follow such instructions, if given.
50 It was further submitted that counsel had failed, through incompetence, to anticipate issues which would arise under s 293 of the Criminal Procedure Act and to give advance notice of such issues to his Honour and to the prosecutor. This failure gave rise to friction between counsel and his Honour. As it has already been concluded that the hostility between counsel and his Honour did not give rise to a miscarriage of justice, the cause of the hostility is irrelevant.
51 Finally, it was asserted that the appellant's solicitor acted contrary to instructions in causing the complainant to be recalled and further cross-examined. The decision of the appellant's solicitor to further cross-examine was capable of constituting a reasonable exercise of the advocate's discretion. No miscarriage of justice resulted from the recall and further cross-examination of the complainant.
(c) Withdrawal of instructions
52 The withdrawal of instructions to appellant's counsel occurred after the evidence in the appellant's case had closed. The appellant's solicitor informed the Court that she had not previously addressed a jury and had been unable to instruct replacement counsel to conduct the proceedings. She sought a discharge of the jury on the grounds of the conduct of counsel in the course of the trial, the fact that counsel had to a degree acted outside his instructions, that he failed to deal with a number of matters giving rise to Browne v Dunn issues, that the appellant was impecunious and legal aid was not available to him, that his Honour had had to speak to appellant's counsel about a number of matters (which it was acknowledged all occurred in the absence of the jury).
53 His Honour rejected the application for discharge of the jury. He concluded that he was not satisfied the appellant had suffered the prejudice referred to in Morgan v John Fairfax & Sons (1988) 13 NSWLR 208.
54 His Honour's conclusion was open to him. The appellant's solicitor was given an adjournment to prepare her address to the jury. There is no ground of appeal which asserts incompetence in that address.
(d) Undue pressure from lawyers
55 On 15 August 2006, shortly after 12.00 noon, the appellant became frustrated when giving evidence because, he said in this Court, he knew the DVDs being played were not an original recording and that his instructions had not been followed by his counsel. This eventually caused him to have a "meltdown" resulting in his Honour ordering two "security guards" to sit either side of him for the rest of his cross-examination: Tcpt, p 607. In the course of the "meltdown" the appellant said: "Let's get the bloody experts in here and prove the authenticity of the tapes. Which tape are you playing now? The one I went and got tested or the one you did?": Tcpt, p 591.
56 This caused the prosecutor to respond (Tcpt, pp 594-595):
"Your Honour, two things. Mr Gillies' evidence about the authenticity of the videotape, unless there is a concession that the tape has not been tampered with and is authentic, as I indicated the Crown will call the expert in reply …
HIS HONOUR: You have heard what the Crown says. The Crown indicates that it is her intention to - of course there will be some arrangement made between yourself and the Crown - to call the expert in relation to the authenticity of the tape, unless there is a concession made that there is no challenge to the authenticity. Do you want to take instructions from your client in relation to that?
[COUNSEL]: Not at the moment because he's in cross-examination.
HIS HONOUR: I'm inviting you to obtain instructions from your client in relation to that.
[COUNSEL]: I think what I will do is wait until - I think my client quite frankly has become a little worked up. I quite frankly haven't seen him like this before. I am concerned about it. He is obviously very agitated and very worked up.
HIS HONOUR: I have seen him appearing to be very aggressive, but if you wish to speak to him later. Yes, would you come back? Bring the jury back please."
57 The cross-examination of the appellant then continued and was completed on the following day. Other witnesses in the appellant's case were called and the appellant's case was closed.
58 At the close of the appellant's case, the following occurred (Tcpt, 16/08/06, p 702):
"CROWN PROSECUTOR: Your Honour, the Crown at this time seeks a concession from the accused that the videotapes in evidence have not been tampered with or altered in any way and that the videotapes are original and authentic recordings.
[COUNSEL]: That concession is given, your Honour."
59 There was then the discussion between his Honour and counsel which has been earlier recorded at para 33 which continued (Tcpt, pp 705-706):
"RANDLE: Mr Gillies has just withdrawn instructions from [counsel]. Secondly, I do have instructions, with respect to the videotape that the Crown are relying on, there is no argument with respect to the authenticity or the tampering, or should I say, non-tampering with them.
HIS HONOUR: Has the accused then agreed to sign the prepared facts?
RANDLE: Yes, he has, your Honour.
HIS HONOUR: Very good. Keep the jury here. The prepared facts have been prepared?
CROWN PROSECUTOR: Yes.
HIS HONOUR: Read those onto the record. Is the jury still here?
COURT OFFICER: Yes.
CROWN PROSECUTOR: I am just having trouble locating the documents your Honour. Ms Randle had all the copies of them. …
RANDLE: Your Honour, I do have a document that is signed. It is not the original document that Madam Crown handed me. I will read it.
'The Crown seeks a concession that the tapes in evidence have not been doctored or tampered with in any way, are authentic recordings.'
That was signed by Mr Gillies. Mr Gillies signed that today. That has got his signature on that document.
CROWN PROSECUTOR: I'd prefer to have the proper form."
60 The document prepared for the purposes of s 191 of the Evidence Act was subsequently tendered. The document was signed by the appellant, witnessed by the prosecutor and the appellant's solicitor, and dated 16 August 2006. It was in the following terms:
"Pursuant to section 191 of the Evidence Act 1995 the accused admits the following matter of fact which is not in dispute:
1. The video tapes in evidence have not been doctored or tampered with in any way. They are authentic and original recordings."
61 The appellant gave evidence about this document on the appeal. He said he signed the document after he had been calmed down by his solicitor. He said that he signed it in the belief that it would get the judge on side and that the discharge of the jury would come and the trial would be re-run: Tcpt, CCA, 27/08/08, pp 25(35)-26(5). He said he signed it without reading it, without understanding what it was about and it wasn't explained to him: Tcpt, pp 26(35)-27(1). Such evidence is of doubtful probity. Even if accepted, it cannot be asserted that the trial miscarried because the appellant was forced to sign the document. He signed it voluntarily, although his purpose was thwarted. The advice to agree on the authenticity of the tapes was made for strategic reasons discussed above. His agreement was given for a (different) strategic reason.
(e) Limiting cross-examination of complainant
62 It was suggested in cross-examination of the complainant that on 3 April 2004 she commenced to have sexual intercourse, including oral intercourse (cunnilingus), with the appellant. The question was objected to on the basis that it contravened s 293 of the Criminal Procedure Act: Tcpt, 03/08/06, p 154).
63 His Honour held (Tcpt, p 156):
"Insofar as the oral sex is concerned, I am not going to consider section 293 in the first instance, I am going to consider section 41 [of the Evidence Act ] and I find that it is not relevant and the question in relation to the oral sex is offensive and, that being the case, I disallow the question."
64 The appellant submitted that the question relating to cunnilingus was relevant. The question was incapable of being construed as unduly offensive having regard to the manner in which it was asked and the nature of the subject matter and other permissible questions. It was relevant to establish the details of the kind of sexual activities engaged in between the appellant and complainant.
65 His Honour was mistaken in considering s 41 of the Evidence Act, its operation in criminal proceedings being excluded by s 275A(7) of the Criminal Procedure Act. However, s 275A itself applied and made it mandatory for the court to disallow a question put in cross-examination or direct a witness that it need not be answered if of the opinion that the question is, inter alia, unduly annoying, harassing, intimidating, offensive, humiliating or repetitive: s 275A(1)(b). The basis for disallowance relied upon is found in both provisions. His Honour was of the opinion that the question was "offensive" and for that reason disallowed it. He did not use the word "unduly" but his use of the word "offensive", which occurs in s 41, suggests he was relying upon the power given by that section to disallow the question. If so, it can be inferred that he found the question offensive to the degree required by that section, namely "unduly offensive".
66 However, the appellant's case relied on alleged prior sexual intercourse involving a bottle and other implements. Even if oral intercourse may have been relevant to some other count, there was no miscarriage of justice vis a vis the conviction under appeal. The jury could not have reasoned that because on an earlier occasion the complainant may have consented to oral sexual intercourse, she now consented to the appellant using a bottle or that he may have thought she was consenting to such activity. The difference between the two acts was just too great to allow for such reasoning.
(f) Recalling complainant
67 There were a number of matters which were not put to the complainant by counsel for the appellant. The prosecutor formulated a list of propositions which had not been put to her. The evidence given on the appeal, if relevant, was that counsel for the appellant considered the complainant should not be recalled for the purpose of putting those matters to her. The appellant agreed with that view. The appellant's solicitor was aware of those opinions but was of the opposite view. When she took over the full conduct of the defence she caused the complainant to be recalled and further cross-examined.
68 The decision by the appellant's solicitor is submitted to have caused the trial to miscarry. However, the decision by the solicitor lay well within the advocate's discretion as to the manner in which proceedings are to be conducted: Birks at 683-4. Furthermore, it has not been shown why it was disadvantageous to the appellant to have the complainant recalled for further cross-examination. No miscarriage is demonstrated.
(g) Failure to take objection; collusion
69 An additional complaint was made with respect to the expert evidence concerning the authenticity of the tapes. The appellant submitted that, having regard to the considerable force of the expert evidence and the instructions to trial counsel and solicitor, the failure to lead that evidence before the jury led to an inference that trial counsel and the solicitor had taken instructions from the prosecution.
70 Furthermore, the prosecutor implied at the trial that the appellant may have been drugging the complainant. This was dealt with when the prosecutor served upon the defence a forensic report relating to the complainant which did not support the suggestion that the appellant may have drugged her. Appellant's counsel did not tender the report at the trial.
71 The tactical considerations relevant to the tender of this material have been referred to above: it is discussed further below. No basis has been laid for the inference that there was collusion between the prosecution and the appellant's legal representatives to conduct the case to his disadvantage. Such a serious allegation would require very clear evidence. No such evidence is present here.
(6) Authenticity of tapes
(a) Failure to grant permanent stay
72 The appellant made an application to stay the proceedings on counts (2)-(5) permanently on the basis that part of the videotape had been obliterated such as to prejudice the appellant by removing a possible defence. Alternatively, he submitted that pursuant to s 137 of the Evidence Act the videotape should not be admitted into evidence.
73 For the purposes of the application Exhibit A was notionally divided into three parts. Section A consisted of the first 10.51 minutes. It showed consensual activity between the appellant and the complainant on 5 July 2004. Section B consisted of the next 1 hour 21 minutes. It showed the impugned behaviour between the appellant and the complainant on 10 July 2006. Section C was blank.
74 The appellant accepted that Section B depicted what occurred between him and the complainant on 10 July 2004. He asserted that part of Section B was recorded over part of Section A and that the audio was not synchronised with the video.
75 Counsel for the appellant submitted on the voir dire (Tcpt, 31/07/06, p 7):
"The real thrust of the accused's application is that the over-recording of B over episode A, has removed material or obliterated material or obscured material that is favourable to his defence. In that he says, his instructions are that it would show clearly the same activity that is displayed in episode B, following on from the clearly consensual material in episode A."