GILLIES v DIRECTOR OF PUBLIC PROSECUTIONS

CATCHWORDS: APPEAL AND NEW TRIAL - criminal appeal - miscarriage of justice - unfair trial - hostility between trial judge and counsel - incompetence of counsel - instructions withdrawn - CRIMINAL LAW - particular offence - sexual intercourse without consent - accused's belief as to consent - CRIMINAL LAW - practice and procedure - counsel's brief withdrawn - adjournment application - application to discharge jury - CRIMINAL LAW - practice and procedure - agreement as to fact - agreement challenged - inconsistent verdicts - Evidence Act 1995 (NSW), s 191 - EVIDENCE - cross examination - questions of complainant disallowed - Criminal Procedure Act 1986 (NSW), s 275A

Crimes Act 1900 (NSW), s 61I Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 LEGISLATION CITED: Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Procedure Act 1986 (NSW),ss 166, 293, 275A Evidence Act 1995 (NSW), ss 41, 137, 191 Summary Offences Act 1998 (NSW), s 21G

Ali v The Queen [2005] HCA 8; 79 ALJR 662 Banditt v The Queen [2005] HCA 80; 224 CLR 262 Carlton v The Queen [2008] NSWCCA 244 Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385 Cesan v The Queen [2008] HCA 52; 250 ALR 192 House v The King [1936] HCA 40; 55 CLR 499 Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23 MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 MFA v The Queen [2002] HCA 53; 213 CLR 606 CASES CITED : Morgan v John Fairfax & Sons (1988) 13 NSWLR 208 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 R v Birks (1990) 19 NSWLR 677 [R v Doff [2005] NSWCCA 119; 54 ASCR 200 R v Ensor [1989] 1 WLR 497 R v Lars (1994) 73 A Crim R 91 R v Miletic [1997] 1 VR 593 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 [Regina v Connolly (unrep, NSWCCA, 15 March 1979) Seymour v R [2006] NSWCCA 206; 162 A Crim R 576 TKWJ v The Queen [2002] HCA 46; 212 CLR 124

PARTIES: Darrin Michael Gillies (Appellant) Director of Public Prosecutions (NSW) (Respondent)

COUNSEL: Self-represented (Appellant) P Miller (Respondent)

SOLICITORS: Self-represented (Appellant) S Kavanagh, Solicitor for Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL CCA 2006/5245

BASTEN JA HISLOP J PRICE J

23 December 2008 Darrin Michael GILLIES v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) Judgment 1 THE COURT: (1) Introduction The incidents which became the subject of four of five charges in the District Court concerned events on the night of 9-10 July 2004, in the appellant's premises at Warners Bay near Newcastle. There were three charges of having sexual intercourse without consent, one charge of attempted sexual intercourse and a further charge of assault with an act of indecency. The charges, and the conduct to which they related, will be identified more fully below. At his trial, the appellant pleaded not guilty to each count and was convicted on one count only (number 5) of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years. The appellant was convicted and sentenced to imprisonment for a non-parole period of five years, commencing on 17 July 2006 and expiring on 16 July 2011, with a further term of one year, eight months. 2 The appellant sought to appeal against his conviction and sought leave to appeal against sentence. 3 As will appear shortly, most if not all of the grounds of appeal against conviction involved issues of fact: leave was required to appeal on any ground which did not involve a question of law alone: Criminal Appeal Act 1912 (NSW), s 5(1); Carlton v The Queen [2008] NSWCCA 244 at [10]. Given the seriousness of the offence for which he was convicted and the nature of the issues raised, it is appropriate that he have such leave in respect of all aspects of the appeal for which leave is required. 4 The bulk of the grounds of appeal related in one way or another to the conduct of the appellant's solicitor and counsel during the trial. These grounds will be addressed together. 5 The second major group of grounds related to the authenticity of the videotapes of the sexual activity, as presented by the prosecution in the course of the trial. (There was some overlap between the appellant's complaints in this regard and his complaints with respect to the conduct of counsel.) 6 The third group of complaints concerned admission of a number of items of evidence, together with a failure to give proper instruction to the jury in respect of such evidence. There was a further complaint in relation to the inadequacy of the summing up, which will also be addressed in this context. 7 The fourth group of complaints included grounds asserting that the verdict was unsafe and unsatisfactory, in part because of the accumulation of complaints noted above, but also because of alleged inconsistency between certain of the verdicts. 8 Something further should be said about the conduct of the appeal. First, the appellant lodged with his written submissions a number of statements from witnesses, each of which was said to be supportive of his innocence. This material will be dealt with in the context in which it arises below. More importantly, the appellant, who appeared in person, gave evidence and called his partner (Ms Bentley) to give evidence as to various events which occurred during the course of the trial, in part involving conversations with his lawyers, both in Court and outside the courtroom. It will be necessary in due course to say something about the relevance of this evidence, which was adduced without objection from the Director. Before doing so, it is convenient to set out the charges and the circumstances giving rise to each charge. (2) The facts 9 The appellant was born in 1965. The complainant was 30 years old at the relevant time. They were in a relationship which had begun shortly after they met in March 2004. It was a sexual relationship and they frequently slept at each other's residences. 10 The appellant had arranged to go on an overseas trip with a male friend. The trip was to commence on 10 July 2004. The trip had been the source of considerable tension between the appellant and the complainant. 11 On the night of 9 July 2004 the appellant and the complainant had consumed alcohol and argued. The complainant said that her recollections of the latter part of the night and the early morning were blurry and confused. She remembered getting out of a taxi at the appellant's house, but nothing of what happened thereafter until she woke up feeling not right and a bit nauseous. At that stage words were exchanged between her and the appellant. The appellant left to go on his trip. The complainant went back to sleep. When she subsequently awoke she saw a wine bottle next to the bed and a jar of Vaseline on the bedside table. In another bedroom she saw a carrot on a bed. She noticed what looked like Vaseline on the top of the bottle. She pressed buttons on a VCR recorder and saw images of herself and the appellant involved in sexual activity on the screen. She took the video (Exhibit A) and another video that had cartoons or something similar written on it. On 11 July 2004 she contacted police. 12 On 13 July 2004 police executed a search warrant at the appellant's premises. They located and took possession of, inter alia, the wine bottle and six videotapes. One of these (Exhibit B) also depicted sexual activity involving the appellant and the complainant. 13 On 31 July 2006 the appellant was charged on indictment on the following counts:

(1) Between 17 March and 11 July 2004 at Warners Bay the appellant did have sexual intercourse with the complainant without the consent of the complainant, knowing that she was not consenting.

(2) On 10 July 2004 at Warners Bay the appellant did assault the complainant and at the time of such assault did commit an act of indecency on the complainant.

(3) On 10 July 2004 at Warners Bay the appellant did have sexual intercourse with the complainant without the consent of the complainant, knowing that she was not consenting.

(4) On 10 July 2004 at Warners Bay the appellant did attempt to have sexual intercourse with the complainant without the consent of the complainant, knowing that she was not consenting.

(5) On 10 July 2004 at Warners Bay the appellant did have sexual intercourse with the complainant without the consent of the complainant, knowing that she was not consenting. 14 The activities to which the charges related were: count (1) - digital penetration of the complainant's vagina; count (2) - rubbing a hand on the anal and genital region of the complainant whilst a vibrator was in the vicinity of her genitalia; count (3) - the insertion and movement of a dildo in the complainant's genital area; count (4) - the placing of a bottle in the exposed anal area of the complainant; count (5) - the insertion of a bottle into the complainant's vagina. The prosecution contended that the complainant had consented to none of these activities. 15 In respect of each of those counts the sexual activity was recorded on video, count (1) activities on Exhibit B, the remaining activities on the video Exhibit A, which was enhanced in Exhibits E and M. Exhibit B was taken on Easter Tuesday, 13 April 2004 after boating at Port Macquarie. (3) The trial 16 The appellant was represented by counsel at the trial. The prosecution case was dependent upon the video evidence as the complainant had no recollection of the events the subject of the charges. Prior to the empanelment of the jury a voir dire was conducted on 31 July 2006 to determine whether, by reason of certain aspects of the videotapes, a permanent stay of the proceedings should be granted or the videotapes should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW). The challenge was unsuccessful. 17 The jurors were empanelled and the trial proceeded. During the course of the trial, a question arose as to whether the appellant accepted the authenticity of the videotapes and that they had not been tampered with. Counsel for the appellant gave that concession. Subsequently a document confirming this concession was tendered pursuant to s 191 of the Evidence Act. The only issues then remaining were whether the complainant consented to the conduct of the appellant which was complained of or the appellant may have believed that she did consent. 18 There were a number of exchanges between appellant's counsel and the presiding judge during the course of the trial. On 16 August 2006, shortly after the appellant's counsel had stated that the appellant's case was complete, his instructions were withdrawn. The appellant's solicitor applied for a discharge of the jury at that stage but this was refused. The trial was thereafter conducted by the appellant's solicitor to its conclusion. 19 On 24 August 2006 the jury found the appellant guilty on count (5). He was convicted and, on 1 December 2006, was sentenced to imprisonment for a non-parole period of five years commencing on 17 July 2006 and expiring on 16 July 2011 with a further term of one year eight months to commence at the expiration of the non-parole period and expire on 16 March 2013. 20 The jury found the appellant not guilty on counts (2) and (3) and were unable to agree upon a verdict in respect of counts (1) and (4). 21 The prosecution had a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) with two charges of filming for indecent purposes, relating to counts (1) and (5). The appellant was convicted of the charge relating to count (5), for which he was sentenced to six months imprisonment to date from 17 July 2006 and to expire on 16 January 2007. 22 In relation to count (5), Exhibit M was played in court. In evidence at trial the appellant agreed with the following description of what was depicted: just before he inserted the wine bottle he was touching the genitals of the complainant, she moved away from him, he picked up a dildo or vibrator and touched her genitals, she moved away from him, she uttered the word "don't" a number of times. He was masturbating, was looking at the television screen, he lifted the doona to expose her lower body and he looked at the camera when he did that. He accepted at that point of time the doona was over the complainant's head. At one time he was sucking on the carrot. He agreed the complainant then said "don't" quite forcefully. The appellant agreed it could be suggested the complainant tried to kick out with her foot when he tried to put the bottle near her. He agreed she said "don't" again. He inserted the bottle and she cried out very loudly "ouch". He agreed he pushed the bottle in hard. He said that in his mind he was giving the complainant pleasure. 23 The prosecution case was that the appellant videotaped sexual acts between himself and the complainant when the complainant was either heavily intoxicated or asleep or both and did not consent to those acts. The complainant had no memory of the events in question. The complainant gave evidence that at no time did she agree to use implements in the sexual relationship. It was her evidence that when it was discussed she actively declined to use the vibrator or be filmed. 24 It was the appellant's case that the sexual relationship between himself and the complainant involved the complainant engaging in behaviour that encouraged his advances and then rejected them in what he described as a yes-no, yes-no pattern. That pattern constituted the dynamics of their relationship and was why he made the suggestion of filming their sexual activity. It was the appellant's case that the complainant willingly participated in being filmed during sexual activity and she had watched some of the video footage and had taken two of the recordings home with her. It was the appellant's case that the sexual relationship involved consensual use of vibrators, dildos, carrots and bottles, and that the complainant enjoyed and actively encouraged the use of such implements. It was the appellant's case that the complainant was angry the appellant was going on an overseas holiday for two weeks without her and had fabricated the complaint against him in retaliation for him leaving her. (4) Evidence on the appeal 25 The appellant sought to call evidence (from himself and his partner) as to the steps taken by him and his lawyers, including instructions given by him and advice received, both in preparation for the trial and during the course of the trial. That course was not opposed by counsel for the Director; rather he called evidence from the appellant's trial solicitor and trial counsel. The purpose, on the appellant's part, was to demonstrate a miscarriage of justice through:

(a) the failure of his lawyers to follow instructions with respect to trial strategy; and

(b) inappropriate pressure placed on him by his lawyers to take a course contrary to his instructions. 26 This course would in most circumstances be misconceived. A miscarriage of justice will generally be capable of demonstration only by reference to the objectively verifiable circumstances of the trial. What takes place between an accused person and his or her lawyer will usually be irrelevant to that assessment: Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [8] (Gleeson CJ). Where counsel has been briefed, the general rule is that the accused will be bound by counsel's conduct of the trial. If counsel fails to follow instructions, the final resort of the disaffected client is to withdraw instructions. Why that is done is usually no concern of the prosecution or the Court. However, in Nudd at [19] Gleeson CJ continued: "The description of conduct as an 'error', and the characterisation of something that happened as 'unfair', could in some circumstances turn upon knowledge of why something was done or omitted, and this, in turn, might reveal a departure from standards of professional duty. As Lord Carswell said in Teeluck v Trinidad and Tobago [2005] 1 WLR 2421 at 2433, there may be rare cases in which counsel's misbehaviour or ineptitude is so extreme as to constitute a denial of due process to the client. McHugh J gave two examples in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [76]: cases where, for no valid reason, counsel fails to cross-examine material witnesses, or does not address the jury. (I take his Honour to have been referring to cases where there is no rational explanation of counsel's decision; not to cases where an appellate court simply thinks it was unwise to fail to cross-examine. That is indicated by his Honour's treatment of failure to cross-examine and failure to address as like cases). In Teeluck v Trinidad , Lord Carswell went on to say that, normally, 'the focus of the appellate court ought to be on the impact which the errors of counsel have had on the trial and the verdict': at 2433." 27 An exception may arise in a case where withdrawal of instructions in the course of a trial is followed, as in this case, by an application for an adjournment. In the case of a jury trial, granting such an application is likely to lead to the trial being aborted unless fresh counsel can reasonably be expected to take over at short notice. Because the Court will often not be in a position to evaluate whether the withdrawal of instructions is reasonable and appropriate in the circumstances, an application, made well into the course of the trial, which will lead to the discharge of the jury, will usually be refused. A refusal to adjourn will not readily be reviewable. Not only is it a discretionary decision, but it is one likely to turn on matters of impression. An attempt to adduce evidence on appeal as to the accused's impressions of events occurring during the trial should, in most circumstances, be rejected: cf Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385 - reversed, Cesan v The Queen [2008] HCA 52; 250 ALR 192, but not on this issue. It is not necessary for the trial judge to form a view that the application is a device to avoid an adverse verdict in order to refuse the application. 28 Where the accused, following conviction, seeks to demonstrate that the withdrawal of instructions and the consequential adjournment application were justified, the exercise on which the appeal court is invited to embark involves the assessment of the reasonableness of the accused's conduct. But that is not the relevant test: the test is the fairness of the trial, objectively assessed. The relevant principles were identified by Gleeson CJ in this Court in R v Birks (1990) 19 NSWLR 677 in the following terms at 685D-F: "1. A Court of Criminal Appeal has a power and duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellant intervention." 29 The concept of "flagrantly incompetent advocacy" is drawn from the judgment of Lord Lane CJ in R v Ensor [1989] 1 WLR 497. As explained by McHugh J in TKWJ at [97], such a description of counsel's conduct "may show that a miscarriage of justice has occurred in a particular case" but is "unhelpful generally in determining whether there has been a miscarriage of justice within the terms of s 6(1) of the Criminal Appeal Act", that being the question for determination by the Court. One might add that such a description is designed to distinguish a high level of incompetence from misjudgement or even negligence. It carries no necessary implication as to how the characterisation is to be reached. Of course, it is a characterisation of the circumstances of a particular case, but a critical question is whether those circumstances may be ascertained by evidence presented either at trial, or to the court of appeal. 30 In Birks, counsel for the accused failed to put to the complainant in a rape case circumstances consistent with the accused's story as later recounted by him in the witness box. Unsurprisingly, the accused was cross-examined by the prosecutor to suggest that the story was a recent invention. After the jury retired, counsel explained to the trial judge that the accused had in fact given instructions in terms consistent with his evidence. The failure to put that case to the complainant was "his own oversight": at 682G. Evidence to similar effect was adduced in the Court of Criminal Appeal: 683B. If an accused is able to produce evidence, which is admissible, material, credible and conducive to an acquittal, which was available at the time of trial, he or she may also say that instructions were given to obtain the evidence, which instructions were not followed: see Regina v Connolly (unrep, NSWCCA, 15 March 1979). This would be evidence of a kind which, if first discovered after a conviction, might warrant an inquiry into the conviction: Crimes (Appeal and Review) Act 2001 (NSW), Pt 7. This is not evidence of disagreement as to strategic decisions made in the course of a trial, which would usually be inadmissible, because irrelevant: see TKWJ at [107]-[110] (Hayne J). A distinction should thus be drawn between facts relevant in the criminal trial on the one hand, and the basis of strategic decisions, or subjective intentions, of the accused and counsel, on the other hand. 31 Evidence falling within the latter category would generally be inadmissible: much of the appellant's evidence in the present case fell into the latter category. For example, although he complained that inquires with respect to the authenticity of the copies of the videotapes were not pursued and that an expert obtained by him at his own expense was not utilized, it was material which competent counsel, acting in his client's interests, could properly decline to pursue as a distraction from the issues likely to be persuasive with a jury. (5) Conduct of appellant's lawyers 32 Nine separate grounds (grounds 1, 12-17, 20 and 21) related to various aspects of the manner in which the appellant's solicitor (Ms Randle) and his counsel (Mr Brewer) conducted his defence. It is convenient to deal with these grounds together. (a) Atmosphere of hostility 33 The transcript revealed that the appellant's counsel clashed with the trial judge on a number of occasions. The primary examples of these clashes were as follows:

(a) On 3 August 2006 a question about engaging in oral sex put to the complainant by appellant's counsel was objected to pursuant to s 293 of the Criminal Procedure Act . The question was rejected, his Honour relying upon s 41 of the Evidence Act . On the following day another s 293 objection was taken and his Honour criticised appellant's counsel, in the absence of the jury, for not giving him advance notice of the matter: Tcpt, 03/08/06, pp 154-156; Tcpt, 04/08/06, pp 187-188.

(b) On 4 August 2006 his Honour rejected a question by appellant's counsel which assumed that a previous question had been answered in the affirmative when it had not: Tcpt, p 182-183. A short time later appellant's counsel again transgressed in this way. His Honour sent the jury out before criticising counsel (Tcpt, p 185), his Honour concluded (Tcpt, p 186): "… you are not doing your client any benefit at all by continuing this course of cross-examination and if it continues in the future unfortunately your client will suffer the consequences, which is unfair to your client."

(c) Later that day his Honour criticised appellant's counsel, in the absence of the jury, as to the detail of the cross-examination of the complainant which his Honour considered was becoming oppressive and irrelevant: Tcpt, p 204.

(d) On 9 August 2006 his Honour interrupted the cross-examination of a police witness, in the presence of the jury, to say he did not understand the relevance of the cross-examination: Tcpt, p 351. Counsel explained the relevance to his Honour who then permitted counsel to continue asking questions on that issue, although not the particular question which had caused his Honour to raise the issue.

(e) Later in the cross-examination of the police officer, the following exchange occurred (Tcpt, p 360): "HIS HONOUR: Please let this witness, in his own way, answer the question. [COUNSEL]: Well, your Honour, I am not going to let that happen. HIS HONOUR: Well, I'm going to let that happen. I'm going to let that happen."

(f) On 10 August 2006 counsel was making a submission, in the absence of the jury, when his Honour cut him off. The following exchange was recorded (Tcpt, p 396): "HIS HONOUR: I have difficulty talking to you, [counsel], and I don't know whether this confrontation attitude refers to me or otherwise, but please let's keep the tension out of your discussion and my discussion. I am not here to deal with confrontation, I don't welcome it, I really don't welcome it. It is very unfortunate to have a confrontation attitude all the time. I really don't welcome it. It is foreign to me, really is foreign. I will just go off the bench."

(g) On 14 August 2006 the following exchange, which took place in the absence of the jury, was recorded (Tcpt, p 506): "HIS HONOUR: You weren't aware of the authority?

[COUNSEL]: I was aware, your Honour - I wasn't aware--

HIS HONOUR: You were aware of it. If you were aware of it why didn't you refer me to it?

[COUNSEL]: I wasn't aware of this authority so much as the recognition evidence notion that began with Mundarra Smith and the cases involving police officers--

HIS HONOUR: If you are protecting your client's interests, if the judge makes a mistake and you know and you know that there is authority it is incumbent upon you to tell me.

[COUNSEL]: Well, I haven't said your Honour has made a mistake. What I have--

HIS HONOUR: If you believe that what has been directed by me may be an error, it may not be in your client's interests, then it is your obligation to your client and to the court to tell me which. Show me the authority please.

[COUNSEL]: Just so it is clear, that is why I asked to be heard in the absence of the jury now so there is no--

HIS HONOUR: You knew this was going to happen again and you put the question to the witness, 'What can you tell me about that.' Why didn't you, before the jury came in, so we wouldn't have this problem, say to me, 'Look, you made a ruling earlier in the piece', and brought to my attention that, 'There are some authorities and before we play any more of this tape I would like to deal with the matter with you.'"

(h) On 15 August 2006 the following exchange occurred in the absence of the jury (Tcpt, pp 629-630): "[COUNSEL]: The other matter is that on a number of occasions, I haven't counted them all up yet, but when I raised matters your Honour looked at me several times, there was a section 293 question and I desisted from raising matters that I thought would incur a reprimand from your Honour, based on the fact that I hadn't alerted your Honour.

HIS HONOUR: You must alert me in relation to section 293.

HIS HONOUR: Firstly, let me say I don't like being verballed in my court. I looked at you, did I? I really would like to know, I looked at you and that caused you to be too frightened to say--

[COUNSEL]: No, your Honour, I'm never too frightened. Your Honour has already described me as being confrontational.

HIS HONOUR: Firstly, I don't like being verballed--

[COUNSEL]: I wasn't attempting to verbal your Honour at all.

HIS HONOUR: You have, very successfully. I looked at you?

[COUNSEL]: Your Honour said on a number of occasions--

HIS HONOUR: You are going to tell me about the section 293 matters.

[COUNSEL]: Your Honour held your Honour's finger up and said 'Excuse me' and looked at me in front of the jury.

HIS HONOUR: Oh. Well, I have been on this bench a long time, [counsel] --

HIS HONOUR: Will you just listen? I have never, never had allegations of this nature raised against me and I find them very, very offensive. But if you are too frightened, as a counsel, to look after your client's interests, well so be it. But in relation to section 293, if you want to raise matters, I told you raise them with me beforehand.

(i) On 16 August 2006 the following exchange occurred in the absence of the jury (Tcpt, pp 697-698): "HIS HONOUR: It really is very unfair. I mean, I gave a ruling. I indicated what was relevant. You read the statement of what you were going to say to me. I said what is relevant in that statement is the description. I asked is there any clear identification of the vibrator on the video. Now you've introduced a whole new area.

[COUNSEL]: No. Nothing has been introduced. She hasn't given any evidence about it.

HIS HONOUR: What is the jury going to do? The Crown has objected. This woman is going to say, yes, she used it in her sex life with men, in her sex with the accused, but it is patently clear--

HIS HONOUR: Excuse me. I don't know. The question has been asked. The question has been objected to. The objection is a proper objection. The question shouldn't have been put. It goes outside my ruling. It is unfair to the Crown. It is unfair to the complainant. It is just another act of your incompetence or it is an act of your defiance, but it is not an act of what I regard as the proper act of a properly prepared and ethical barrister. Take the jury back to the jury room.

HIS HONOUR: Everything is on the record, sir, so say what you want. There are no secrets here sir.

HIS HONOUR: Excuse me. Take the jury back to the jury room please.

CROWN PROSECUTOR: Did your Honour say take the jury back to the jury room?

HIS HONOUR: Back to the jury room please. So how do we handle the situation?

CROWN PROSECUTOR: I am happy if [counsel] simply withdraws the question and I proceed to cross-examination, your Honour.

HIS HONOUR: I am going to say something to the jury. I am going to say to the jury that there was legal argument in relation to the evidence. I have permitted the evidence in relation to the vibrator. It was limited to that effect, but [counsel] went beyond my direction and I will say it is unfair and they should disregard the question. Yes, bring the jury back please.

During the course of legal argument you did not object to the evidence, did you?

CROWN PROSECUTOR: Of the description of the vibrator?

[COUNSEL]: While the jury are returning I will just place on the record--

[COUNSEL]: You've said that before. I am just letting--

HIS HONOUR: Well, I am going to say it again. Everything is on the record.

[COUNSEL]: Thank you, and I was just going to indicate that what I anticipated the witness would give--

HIS HONOUR: I know what the witness is going to say, I heard you summarise it earlier, but the question should not have been put.

[COUNSEL]: It was consistent with evidence the complainant had given.

HIS HONOUR: It does not matter. The question should not have been put--

HIS HONOUR: --because it breaches section 293. I am not going to go through this again. I don't know how to get through your head what the law is. I don't know how to do it. I can't be any clearer.

IN THE PRESENCE OF THE JURY HIS HONOUR: I sent you out, members of the jury, because a very serious matter had arisen. Prior to this evidence being given during the course of legal argument and interruptions I permitted the evidence to be given. The Crown did not object to the evidence being given about this vibrator, about that purchase of a vibrator and the size of the vibrator and that was the extent of the evidence which was to be given.

As to the next question asked of the witness by [counsel], there was no permission given by me for the question to be asked. The question has to be struck out and you must not under any circumstances speculate what the answer to the question would have been. [Counsel] went against my directions and instructions, because the only relevant section of her evidence pertained to the purchase of that vibrator. Do you understand that?

You must not in any way speculate, in any way speculate what the answer to that question which I have directed to be struck out would be. It would act unfairly to the parties in this case. Now, do you understand that? (Jury indicated in the affirmative)

HIS HONOUR: I can't tell you in any stronger terms." In respect of these events the prosecutor placed on record some additional comments in relation to the location of the jury during the above exchange. In essence, the additional comments were to the effect that the jury was not physically in the courtroom during those exchanges and the courtroom door was closed at all times except when the court officer opened the door at the time counsel was saying "why is it that every": Tcpt, 17/08/06, pp 718-719.

(j) Later that day, in the absence of the jury, the following exchange occurred (Tcpt, pp 704-705): "CROWN PROSECUTOR: I will, your Honour. Could I raise one matter. Apparently whilst the concession was being read the accused shook his head in the negative … HIS HONOUR: I too shake my head. This was why I believed, having regard to the behaviour of the accused and his counsel during the course of this trial, that something in writing would be--

HIS HONOUR: I don't withdraw it, sir. I really don't withdraw it. I don't withdraw it. I don't withdraw it.

[COUNSEL]: What are you suggesting, that I conspired with the accused--

HIS HONOUR: You haven't let me finish what I was going to say.

[COUNSEL]: No. That is because you talk over the top of me all the time.

HIS HONOUR: Well, I am not going to deign to answer that comment, but I will just come back and say what I was trying to say before. Perhaps I will repeat what I said. Having regard to the conduct of the accused and his counsel during the course of the proceedings, I felt that a document in writing would have overcome any problems. It is clear that the accused - I was told the accused had refused to sign any documents, so it is clear that either his counsel has acted without instructions from his client or the accused doesn't agree with the concession made by his counsel or that he has changed his mind. So I would like you to put the concession again. Ask for the concession again and let me see what the response is and that concession again should be sought in the presence of the jury. Failing that, a document--

RANDLE: Mr Gillies has just withdrawn instructions from [counsel]. Secondly, I do have instructions that, with respect to the videotapes 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." 34 In essence, the appellant submitted on appeal that his Honour, by his conduct, cut off some lines of examination, was vigilant against questions put by appellant's counsel and any line of examination he considered irrelevant, oppressive for the complainant (or both), was antagonistic to appellant's counsel and by his conduct generally tended to undermine the defence case. A fair-minded observer would have concluded that the trial judge had predetermined some issues. The net effect of the interaction between his Honour and appellant's counsel was to cause a miscarriage of justice. 35 The task of this Court is to study the transcript of the trial in order to determine the validity or otherwise of the appellant's complaint that the judge and counsel conducted themselves in a fashion meriting criticism, and if so, whether what occurred between them so affected the fairness of the trial as to have produced a miscarriage of justice: R v Lars (1994) 73 A Crim R 91. 36 The exchanges complained of were concerned with legitimate issues arising in the course of the trial but, unfortunately, the exchanges were not always accompanied by an appropriate degree of restraint. Nevertheless, the exchanges complained of occurred, almost entirely, in the absence of the jury. As such they cannot be regarded as having contributed directly to any unfairness of the trial, in the sense that they directly raised the risk that the jury would be distracted from its task or caused to perceive a conflict between the judge and counsel such as could generate a belief on their part that the judge was not impartial. In that sense the conduct of counsel and exchanges between counsel and the judge in the absence of the jury may be regarded as of little direct relevance. Exchanges in the presence of the jury are more important. The real vice of those is "the risk that the jury were diverted from their proper function, and gained an impression that the judge had formed an adverse view of the defence sought to be raised by each of the accused": Lars at 142. 37 It was not inappropriate for his Honour to raise the evidentiary issues which he did and it does not appear that his handling of these issues evidenced any undue bias in favour of the complainant or any prejudging of issues. Having regard to all the circumstances revealed by the transcript, it is not possible to conclude that any miscarriage of justice was produced by the exchanges between appellant's counsel and his Honour. No miscarriage of justice has been demonstrated. (b) Incompetence of counsel 38 The appellant submitted his counsel was flagrantly incompetent in a number of respects, resulting in a miscarriage of justice. 39 As noted above it was held in Birks, at 685, that "flagrant incompetence" of trial counsel may be recognised as causing a miscarriage of justice. It is also accepted that a trial may have been unfair, leading to a miscarriage of justice, by reason of the manner in which counsel appearing for the accused conducted his defence: Seymour v R [2006] NSWCCA 206; 162 A Crim R 576. However, an appellant carries a heavy burden in attempting to establish this ground of appeal: R v Miletic [1997] 1 VR 593 at 597. 40 In Birks it was stated (at 683-4): "In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.

As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics." 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."

Appellant's counsel also said that for the purposes of the application the question of any tampering with the videotape should be left "completely out". 76 The power to grant a permanent stay of proceedings to prevent an unfair trial is a power to be used only in most exceptional circumstances: Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23 at 31 per Mason CJ. His Honour said at 33-34: "In the safeguarding of the interests of the accused in the manner I have described the touchstone in every case is fairness… The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences be brought to trial. … To justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'." 77 The trial judge held: "I believe I can properly draw the inference that it was the accused himself who over recorded the activities contained in activity A. However, even if I could not come to that conclusion I am satisfied that the absence of the evidence does not prevent the accused having a fair trial. That being the case I will not stay the proceedings. I go one step further and say that even if I had found that the accused's opportunity to have a fair trial had been significantly reduced by the absence of the evidence I still would have had to consider the public interest in relation to the matter." 78 His Honour's conclusion was well open to him. As he observed, the complainant was available to give evidence and could be cross-examined as to the type of sexual behaviour she engaged in with the accused and the manner in which she gave her consent to sexual activity. Furthermore, the appellant was available to, and did in fact, give evidence on the issue of consent. Whilst the appellant's case would have been stronger if the obliterated material did exist and was as represented by him, this did not prevent a fair hearing being accorded to him and the situation did not constitute such exceptional circumstances as to justify the use of the power to grant a permanent stay of proceedings. His Honour ruled that the videotape should not be excluded pursuant to s 137 of the Evidence Act. 79 Insofar as this ground raises issues as to counsel's competence and adherence to the appellant's instructions, those aspects have been dealt with above. (b) Destruction of evidence 80 The complainant had taken two videos from the appellant's home, Exhibit B and a video marked "cartoon". Detective Snr Const Cook gave evidence that he had viewed the second videotape. It contained only cartoons. As it contained nothing of relevance he had destroyed it (Tcpt, 09/08/06, p 349). 81 The appellant submitted: "the non-presentation of evidence which has significant forensic value is sufficient to justify a stay of proceedings and exclude the application of the proviso. … [T]he non-disclosure of exculpatory evidence by prosecution denied appellant a fair trial and/or fair chance of acquittal." 82 There was no evidence that the material on the videotape was exculpatory or relevant in any sense. It was not put to the witness that the videotape had contained relevant material nor was any evidence led that it had contained relevant material. Counsel for the appellant was not stopped from pursuing that line of cross-examination. No miscarriage of justice has been demonstrated. (c) Alleged inconsistency in prosecution case 83 Detective Abbott, when giving evidence, was asked if he had taken Exhibit A to David McGenniskin. He replied: "No, I didn't. I provided that video to the court under subpoena on 22 September and it has been in the court's care and custody since." 84 The date on which the video was said to have been provided to the court was 22 September 2004. The appellant submitted that that claim was incorrect and Detective Abbott had in fact committed perjury as he had delivered the videotape, the subject of the dispute, to the Australian Federal Police on 11 January 2006. Mr Ringrose, in his report of 31 March 2006, stated: "On 11 January 2006 I received the following items from Senior Constable Michael ABBOTT, NSW Police: · Item 1: One(1) VHS tape … described as 'evidence video' …." 85 The Court was thus invited to draw the inference that the evidence was not always in the care of the court. 86 The report of Mr Ringrose was not in evidence at the trial. Even if the challenged evidence was not literally correct, it may be that the witness was mistaken or had forgotten some events. The matter was not raised either in his evidence-in-chief or in cross-examination so that there was no opportunity to clarify or explain what was meant or to correct the statement if it was wrong. The matter was not relevant to any ultimate issue in the trial. No miscarriage is apparent. (d) Evidence of continuous custody omitted 87 At trial the prosecutor opposed the production of material demonstrating the continuity of custody of the exhibits on the basis that the continuity was a question of fact for the jury. It was implicit in that position, the appellant submitted, that evidence of the continuity would be led before the jury during the trial. 88 However, ultimately there was no issue about the videotape and it was tendered and went into evidence without objection. Continuity of custody had ceased to be an issue. Furthermore, during the stay application the prosecution had tendered a document setting out the chain of custody of the video. It has not been demonstrated that a copy of that document was not given to those representing the appellant. No miscarriage is apparent having regard to the manner in which the case was run. (7) Other evidence (a) Reference to other videotapes 89 The officer in charge of the police investigation, Detective Abbott, gave evidence that six videotapes (including Exhibit B) had been found by police in the appellant's wardrobe during the execution of the search warrant. The videotapes were taken to Charlestown Police Station where Detective Abbott viewed them. Detective Abbott was asked what was shown on the other five videotapes. He said one was the "set up video": Tcpt, 09/08/06, p 384. He was then asked by the prosecutor: "[CROWN PROSECUTOR]: I am going to stop you, I am going to show the members that video. What about the four remaining videos?" [ABBOTT]: One video contained - I believe the answer to my question may prejudice the accused." 90 Counsel for the appellant made an application that the jury be discharged. He observed (Tcpt, p 394): "It is in my submission incurable by direction, because nothing that your Honour could say would ever relieve from the jury's mind some consideration that something was being kept from them. But more particularly, a tape which the formal officer in the case had an opinion about, which was that it was prejudicial to the accused. That invites speculation by the jury that goes absolutely to the heart of this matter, there being, as I have already said, two video tapes in evidence." 91 His Honour determined not to discharge the jury. He indicated that some further matters should be put to the jury and that he would give a strong direction to the jury that there was evidence the material did not involve the complainant in any way. Nor did the video contain relevant material which could give rise to a criminal offence and that the jury should not speculate what was in the video (Tcpt, p 397). His Honour foreshadowed that he would give directions at the end of the trial. 92 Detective Abbott was re-examined as follows (Tcpt, p 399): "CROWN PROSECUTOR: Detective Abbott, you gave some evidence yesterday about videos found during the search warrant? A. Yes, I did. Q. You reviewed that material? A. Yes, I have. Q. And the video that you referred to did not involve the complainant in this trial in any way? A. That is correct. Q. And it did not show any non-consensual sexual intercourse? A. That is correct. Q. And it did not show any material that would give rise in any way to a criminal offence? A. That is correct." 93 His Honour in summing up did not give the direction which he had foreshadowed. Whether this was deliberate or an oversight cannot be ascertained from the transcript. There had been a significant time between when the evidence was given and the summing up. Neither of the parties' legal representatives reminded his Honour of the foreshadowed direction and, accepting that by this stage the appellant's counsel's instructions had been withdrawn and he was represented by his solicitor, the inference to be drawn is that in the atmosphere of the trial at that stage it was not seen by those involved in the trial to be a matter of significance. It may be that a reminder of the evidence in directions may not have assisted the appellant. 94 When the application for a discharge of the jury was made, the trial had been proceeding for some seven days before the jury and Detective Abbott was to be the last witness in the prosecution case. To discharge the jury at that stage would have been a significant step and one to be avoided if that could be done without injustice to the appellant. His Honour clearly thought that it could be avoided. 95 The fact that the jury returned two "not guilty" verdicts and were unable to agree on two others suggests that this evidence was not something that influenced the jury. No miscarriage of justice has been demonstrated. (b) Statements of defence witnesses 96 In this Court the appellant lodged a number of statements obtained from people who knew him. There was no evidence these witnesses were not available to give evidence at the trial or that statements were not, or could not have been, obtained from them prior to the trial. One of those who provided a statement, Ms Leayr, in fact gave evidence at the trial. It was not established that the evidence of any of the persons named would constitute fresh evidence and be admissible on appeal. (c) Tapes held by Court 97 The appellant sought to rely on correspondence from the Registrar of the Newcastle Local Court dated 18 September 2007 in which the Registrar confirmed that videotapes produced under subpoena on 22 September 2004 at the Newcastle Local Court were still held at the Court. It was submitted this raised a question as to what tape was played in the appellant's trial and used to convict the appellant. 98 However, having regard to the way the trial was conducted, including the appellant's own evidence and the address to the jury, there was no issue as to what was depicted on the videotape, which was the only issue to which this material could relate. Accordingly, no miscarriage of justice is demonstrated in this regard. (8) Error in summing up 99 In the course of summing up to the jury, his Honour described the presumption of innocence, that the prosecution bears the onus of proof, that the appellant did not have to prove anything. He referred to the onus and the standard of proof on a number of other occasions and reinforced those directions when discussing the question of consent and knowledge of lack of consent. He told the jury that the appellant's evidence was the same as that of any other witness, that the onus of proof did not shift to the appellant and that the prosecution must at all times prove his guilt. He directed the jury on the question of consent. Toward the end of his summing up, he again referred to consent and reminded the jury that the appellant did not have to prove consent and that absence of consent was a matter for the prosecution to prove. The jury could have been left in no doubt where the onus of proof lay and what the standard of proof was. 100 Some time after the jury had retired to consider its, the jury asked questions in the following terms (Tcpt, summing up, 23/08/06, p 102: "Is there a right to attempt a sexual arousal of a partner? Do we take into account the context of their sexual relationship presented by the accused? Is there any consent implied by previous sexual activities. Referring to count one and two would you also please reference the condition of knowing there was not consent?"

The appellant's solicitor suggested in her address that in the case of existing sexual partners consent was implied and unquestionably arises purely from the fact of the relationship (Tcpt, 22/08/06, pp 7(45)-(57)) and that in the context of the existing relationship the fact that the complainant said that the appellant could not have sex or she did not feel like it at the moment was not "real non-consent": Tcpt, p 8(1)-(20). 101 His Honour answered the questions as follows (Tcpt, summing up, 23/08/06, p 111-112): "In regard to Ms Randle's address is there a right to attempt sexual arousal of a partner?' The answer is yes. Two 'Do we take into account the context of their sexual relationship presented by the accused?' Now I'll deal with that part of the question next. The answer is yes, yes but only if you accept the evidence of the accused as to their previous sexual relationship, that is, including the use of a bottle, a vibrator and a dildo. So the answer is yes, but only if you accept the evidence of the accused as to the prior sexual relationship, that is in the use of a bottle, a vibrator and a dildo. I remind you that the complainant denied that those items were ever used in their prior sexual relationship. I keep going. 'Is there consent implied by previous sexual activities?' And the answer is no. Consent must be considered in each allegation separately. However, if you accept the accused's evidence as to previous sexual activities despite the denial of those matters by the complainant then sexual previous activity can be considered by you when you decide whether the Crown has proven beyond a reasonable doubt that the accused knew the complainant was not consenting. Alright, so an answer to that question is - do you have copies of the questions you put to me? I'll have them photocopied but in relation to that question I repeat the question. 'Is there any consent implied by previous sexual activities?' The answer is no, but it may be considered, if you accept his evidence despite her denial of same when you consider his state of mind. Do you understand? 'Could you please reference the condition of knowing there was not consent?' This is where we go to the accused's state of mind and I'm going to read to you my direction about knowledge and about recklessness. In addition to proving that the sexual intercourse took place and without the consent of the complainant the Crown must also prove that the accused knew that the complainant was not consenting." 102 It was submitted these directions were erroneous in that they reversed the onus and standard of proof in directing the jury that they could only act on the possibility that the offence was proved if they accepted the appellant's evidence on a particular point. The fact that the complainant had consented to similar activity in the past impacted on the likelihood of whether she was indeed consenting on the instant occasion. It was open to the jury to use that fact to reason it was possible that on this occasion she also consented to sexual acts involving those objects. The error complained of lay in his Honour's indication to consider it only insofar as the third element was concerned, namely his knowledge or belief that she was not consenting. It is submitted that the evidence of the prior sexual relationship was relevant to both an assessment of actual consent and the appellant's perception of consent. It was submitted that his Honour's direction was erroneous. 103 The possibility of the jury misunderstanding a specific direction must be assessed in the context of the conduct of the trial and the summing up as a whole. The questions in issue implied an assumption or finding that there was no express consent given by the complainant. The answers given by his Honour were not pellucid, but their intention was to emphasise that consent to the conduct complained of would not properly be inferred from the existence of a sexual relationship which had not in the past embraced such conduct. That was an element of the prosecution case and depended on acceptance of the complainant's evidence in that respect, which the appellant sought to contradict. 104 Although the general direction as to burden of proof was repeated, the specific direction should have referred to an acceptance of the appellant's evidence as casting doubt on that of the complainant. On one reading it might be thought that his Honour placed on the appellant the burden of proving the nature of the earlier relationship. There was also an elision between proof of lack of consent and proof of the appellant's belief in that regard. It is possible, but unlikely, that the jury might have been misled or confused. The answers given by his Honour to the second and third questions followed a lengthy discussion with counsel as to what underlay the questions. In the course of that discussion the appellant's solicitor sought a reference to the fact that the appellant had contradicted the complainant's denial of certain items being used previously in the course of sexual activities: Tcpt, 23/08/06, pp 106-107. After the directions were agreed and given the trial judge expressly asked each lawyer if she were content with the directions. The prosecutor said, "Yes I am"; the appellant's solicitor said, "In your Honour's hands": Tcpt, p 115. 105 After a short adjournment Ms Randle raised an issue that "consent can arise from the previous relationship if the accused has a[n] honest and reasonable belief as to consent and that belief can arise from the fact of the previous relationship": Tcpt, p 117. Reference was made to Banditt v The Queen [2005] HCA 80; 224 CLR 262 and other authorities. His Honour declined to give any further direction, primarily because, so far as relevant, the issue had been addressed: Tcpt, p 120. No complaint was raised in relation to the present ground of appeal; nor does the appellant complain that the further direction sought by Ms Randle was not given. 106 In circumstances where the issues were thoroughly canvassed in the course of the summing up, no miscarriage is established by reference to the answer to the jury question in a respect which was not the subject of complaint at the trial. (9) Inconsistent verdicts 107 Count (2) asserted that the appellant had assaulted the complainant and at the time of such assault did commit an act of indecency on the complainant. The factual basis for the charge was that the videotape showed the appellant rubbing a hand on her anal and genital regions whilst a vibrator was in the vicinity of her genitalia. 108 Count (3) alleged the appellant had sexual intercourse with the complainant without her consent, knowing that she was not consenting. The factual basis for the charge as shown in the videotape was the insertion and movement of the dildo in the complainant's genital area. 109 The appellant submitted that the acquittals on counts (2) and (3) show an inconsistency of verdicts as the acquittals meant a finding of reasonable doubt in at least one of the elements of the offence. The events occurred in reasonably close proximity in time to the use of the bottle. The irresistible inference was said to be that the jury had a reasonable doubt as to the complainant's assertion that no dildo or vibrator was used in the past. If that was so, the jury had a reasonable doubt as to her credibility. Accordingly, in the absence of any specific evidence which bolstered count (5) in particular, it would be illogical, unreasonable and rationally inconsistent for the jury to not then have a reasonable doubt that she might have previously consented to use of a similar implement, albeit a bottle, and thus may have implicitly consented, or at least that the appellant did not hold such a belief. It was submitted that the videotape evidence pertaining to count (5) was incapable of bearing upon the existing sexual relationship of the complainant and the appellant and left open a real possibility that there was implied consent or that there was a belief in implied consent to attempt to stimulate or arouse each other whilst asleep or intoxicated, with or without implements. 110 In MFA v The Queen [2002] HCA 53; 213 CLR 606, Gleeson CJ, Hayne and Callinan JJ said at [34]: "Since the ultimate question concerns the reasonableness of the jury's decision, the significance of verdicts of not guilty on some counts in an indictment must necessarily be considered in the light of the facts and circumstances of the particular case. Furthermore, it must be considered in the context of the system within which juries function, and of their role in that system. A number of features of that context were emphasised in MacKenzie . They include the following. First, as in the present case, where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count. This will often be accompanied by a specific instruction that the evidence of a witness may be accepted in whole or in part. Secondly, emphasis will invariably be placed upon the onus of proof borne by the prosecution. In jurisdictions where unanimity is required, such as New South Wales, every juror must be satisfied beyond reasonable doubt of every element in the offence. In the case of sexual offences, of which there may be no objective evidence, some, or all, of the members of a jury may require some supporting evidence before they are satisfied beyond reasonable doubt on the word of a complainant. This may not be unreasonable. It does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant's evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others. Thirdly, there is the consideration stated by King CJ in R v Kirkman, and referred to in later cases: it may appear to a jury, that, although a number of offences have been alleged, justice is met by convicting an accused of some only. And there may be an interaction between this consideration and the two matters earlier discussed." 111 In the present case such directions were given. The jury was also directed that each count had to be considered separately: Tcpt, summing up, 22/08/06, p 12. This was repeated towards the end of the summing up (Tcpt, p 98). 112 In MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at 367 it was stated: "… if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted." 113 The activity the subject of count (2) lasted approximately nine seconds. There was no movement of the complainant and no overt act of objection. In the context of a continuing sexual relationship between consenting adults, the jury may well have had a doubt as to whether the appellant believed that the complainant was consenting to this activity. 114 As to count (3), the complainant already had the vibrator in her vagina. The appellant moved it out slightly and then re-inserted it. The prosecution did not rely upon the placement of the vibrator as part of the charge. Without rejecting the complainant's evidence about the previous use of implements, the jury may have been prepared to give the appellant the benefit of the doubt on the question of whether he believed he was entitled to attempt to sexually arouse her but having regard to her words and actions, the jury may well have taken a different view when it came to the insertion of the wine bottle. He agreed that she had said "don't" twice before he inserted the neck of the bottle, that she had said "ouch" when he did so and that he had pushed the bottle in hard; Tcpt, 15/08/06, 610(34) and 611(19). The jury might have rejected this as an act of attempted sexual arousal or that there was a possibility that he believed she was consenting to this act in the circumstances depicted. 115 The jury may well have entertained no doubt on the question of consent in relation to count 5 because of what they saw and heard on the videotape. The jury may well have concluded that it was clear that the complainant was not consenting and that the appellant knew it. The complainant's actions and noises indicated clearly that there was no consent.

(10) Unsafe verdict; miscarriage of justice 116 These global grounds related back to the earlier substantive grounds of appeal discussed herein. Additional substantive matters were not raised, nor was there any additional force to be obtained from viewing the specific complaints cumulatively. (11) Conclusion 117 For the above reasons, the appeal against conviction should be dismissed. (12) The sentence appeal 118 As previously stated, the appellant was found guilty of having sexual intercourse with the complainant without her consent, knowing she was not consenting contrary to s 61I of the Crimes Act. The maximum penalty for this offence is imprisonment for 14 years. A standard non-parole period of seven years is applicable. The appellant was sentenced for that offence to imprisonment for a non-parole period of five years commencing on 17 July 2006 and expiring on 16 July 2011 with a further term of one year eight months to commence at the expiration of the non-parole period and expire on 16 March 2013. 119 His Honour recorded the facts in his remarks on sentence, including that on the videotape (Tcpt, sentence, 01/12/06, p 5): "[T]he offender is seen to pick up the wine bottle and push into the genital area of the complainant. Thereafter the offender is seen to manipulate the bottle in the complainant's genital area, despite the complainant by words and actions, indicating to him that she did not wish him to undertake the activity. These acts constitute count 5 of the indictment in respect of which the offender was convicted." 120 His Honour concluded that the offence was within the mid range of the scale of objective seriousness. He said (at p 6): "Insofar as the offence is concerned, the offender in a cruel and callous way took advantage of the complainant, when she was either asleep, drunk or unconscious, by inserting a wine bottle into her vagina. The complainant, when roused from her sleep, made it abundantly clear by her words and actions that she did not consent to the offender inserting the bottle into her vagina. The videotape reveals that after the offender first placed the bottle into the complainant's vagina she in a loud voice said 'Ouch' and the offender appears to push the bottle even harder into her vagina. The offender selfishly dealt with the complainant in order to gratify his own sexual desires. This community will not tolerate persons who deal with their sexual partners in the manner in which the offender dealt with his partner whilst she was either asleep, drunk or in an unconscious state. The sentence that I impose today must contain strong elements of individual and general deterrence." 121 His Honour found that the appellant did not indicate any contrition whatsoever and the impact on the victim was considerable. 122 His Honour had regard to the appellant's record which went back to 1988. In particular his Honour referred to the fact that in 1989 he was dealt with for offensive behaviour (street fighting), that in March 1990 he was sentenced to imprisonment for a minimum term of two years six months, with an additional term of 10 months, for the offence of sexual intercourse without consent; in 2000 he was dealt with for common assault, in 2003 he was dealt with again for assault, in October 2003 he was dealt with for the offence of resist or hinder police officer in the execution of his duty and assaulting a police officer in the execution of his duty and, in 2004, he was dealt with for the offence of maliciously damaging property: Tcpt, pp 7-8. His Honour continued: "When I consider the rehabilitation of the offender I must have regard to the offender's previous offences. In that regard the offender has in the past demonstrated that he was capable of committing acts of violence on citizens and on police and further that he was capable of sexually assaulting an acquaintance. Sharon Bentley has been in a relationship since early 2005. Ms Bentley gave evidence that the offender has reduced his drinking, is not taking drugs and has acted in an exemplary manner with her and her children." 123 His Honour considered the appellant's partner's evidence pleasing but said he had to consider the criminal record of the offender and his capacity to drink large quantities of alcohol in the absence of any guarantee that he will continue the good work on his release from prison. His Honour noted the report of a consulting psychologist: "It is apparent that Mr Gillies has suffered long standing psychological problems which are in urgent need of assistance."

His Honour noted it was clear that the appellant suffers from depression and that was a matter to be considered by him. His Honour was not asked to and did not find special circumstances. 124 The appellant had been granted bail subject to a number of conditions including a condition that when he was at large he was to be in the company of a security guard whose fees were to be paid for by the appellant. His Honour considered this amounted to an extra curial punishment by virtue of the substantial payments made by the appellant to the security guard. The appellant was declared bankrupt following his arrest. 125 His Honour rejected a submission from the prosecutor that there was an aggravating feature in that he had abused a position of trust. (a) Fact finding on sentence 126 The appellant submitted that his Honour erred in his assessment "and is unclear in the way of his Honour expressing his opinion as to the mid range to what scale of sentence be imposed on the appellant." It was further submitted that this Court should intervene in this quite obviously very punitive sentence. 127 However, the facts found by his Honour were open to him as was the conclusion that those facts brought the matter within the mid range for offences of that kind. The standard non-parole period was seven years. His Honour imposed a non-parole period of two years less than the standard period. This ground fails. (b) Special circumstances 128 The appellant submits that the failure by his counsel to submit that there were special circumstances demonstrates flagrant incompetence and that he should have submitted that he be given credit for the cooperative manner in which the trial was conducted by the defence. He may also have submitted that a special circumstance was that the complainant and he were in an existing sexual relationship. 129 The fact that the complainant and the appellant were in an existing sexual relationship cannot mitigate the offence in this case. 130 The manner in which the trial was conducted was no different to the way many trials are conducted. A measure of cooperation usually helps matters to go more smoothly for all concerned. There is nothing unusual in this case. None of these matters constituted special circumstances. There was no error on the part of his Honour. (c) Utilitarian benefit of conduct of defence 131 The appellant submitted that he had made significant admissions, consented to the tender of a large number of statements in evidence, did not cross-examine the preponderance of the prosecution witnesses and in effect only litigated the issue of substantial impairment. These matters provide the basis for a finding that the appellant's conduct of the trial facilitated the course of justice. 132 In R v Doff [2005] NSWCCA 119; 54 ASCR 200, the Court said at [58(c)]: "the efficient way in which the appellant's trial was conducted, including the making of extensive admissions, which while not demonstrating contrition or remorse, did show a willingness to facilitate the course of justice by refraining from resort to dilatory and technical objections of no merit. We do not see why this should not be taken into account for the purposes of sentencing, particularly in a case where there was a single issue of substance which it was appropriate for decision by a jury."

It was submitted that the sentencing judge erred in failing to take into account the utilitarian benefit of the manner in which the appellant conducted his trial. 133 No submission to this effect was made to the sentencing judge. A perusal of the record shows only one statement was tendered by consent, that of Dr Clarke. Dr Edwards was the only witness not cross-examined. The only admission was that made in Exhibit 15 regarding the authenticity of the videotape. It is not understood what is meant by the statement "in effect only litigated the issue of substantial impairment". There was no such issue in the trial. 134 The admission made (which is now challenged) saved some time. It recognised the reality that however the videotape came to be produced it accurately depicted what had occurred. However, the reduction of the non-parole period from the standard seven years to five years, having regard to his Honour's assessment of the objective seriousness of the offence, provides adequately for any discount for some time-saving that may have occurred by reason of the making of the admission regarding the videotape. 135 This is a court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act. The court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [79]; House v The King [1936] HCA 40; 55 CLR 499. 136 Error has not been established, nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. There should be a grant of leave to appeal against sentence, but the appeal should be dismissed. Orders 137 The following orders should be made:

(1) Leave granted to appeal against conviction (to the extent necessary) and sentence.

(2) Dismiss the appeal in respect of the conviction and sentence. **********

30/01/2009 - Adding judgment date to coversheet - Paragraph(s) coversheet

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