Herbert v R

Court of Criminal Appeal (NSW)|2014-06-10|Before: Gleeson JA, Bellew J, Hamill J

Judgment 1GLEESON JA: I agree with Hamill J. 2BELLEW J: I agree with Hamill J. 3HAMILL J: On 10 May 2011 Douglas Charles Herbert (the appellant) was arraigned on a count that he had sexual intercourse with the complainant without her consent, knowing that she was not consenting, and in circumstances of aggravation namely that, at the time of the offence, he recklessly occasioned actual bodily harm to the complainant. The offence was alleged to have occurred on 22 December 2008 at Wyong. The appellant pleaded "not guilty due to the ground of mental illness". A jury was empanelled and the appellant's trial proceeded over a two week period. On 23 May 2011 Judge Ellis commenced his summing up to the jury. The jury retired to consider its verdict at 1:10 pm the following day and at 11:38 am on 25 May 2011 the jury returned with a verdict of guilty. 4Proceedings on sentence took place on 25 May, 22 July, 4 November and 16 December of 2011. On 16 December 2011, the appellant was sentenced to a term of imprisonment of 7 years with a non-parole period of 3 years and 6 months. The non-parole period is to expire on 15 June 2015. 5A notice of application for leave to appeal and notice of appeal was filed on 9 October 2013. The grounds of appeal notified were as follows: (1)"His Honour was in error by not explaining the DNA report to the jury when introduced into evidence. The Crown introduce the DNA report poorly so the Jury could not have reached there verdict of beyond reasonable doubt due to the misinterpretation of the DNA evidence tendered by the Crown in evidence. (2)The Jury were never supplied with all the evidence regarding the Medication that the Accused (Herbert) was on at the time of the alleged offence nor was it explored. If the Jury had this information the verdict of the Jury would not have been unreasonable. (3)His Honour Judge Ellis was in error: The trial should not have continued when it was noted that the accused (Herbert) was extremely unwell and was on a mind altering drug (Xanax) to relieve his symptoms of Anxiety which lead to him having very little memory of the trial and proceedings. The accused (Herbert's) trial should have been aborted or a mistrial called as he was unable to give proper instruction to his Council during the course of the trial and defiantly not in the right state of mind to give evidence. (4)His Honour Judge Ellis was in error: By not letting in all evidence regarding inconsistencies in statements regarding the Crown witness the Jury would have had a different view of the defence case during the trial and the Verdict of the Jury would not have been unreasonable and would have been supported by the evidence. (5)The Verdict of the Jury would not have been unreasonable if the Police and Crown tendered all evidence and had all exhibits tested for DNA, all CCTV footage and all phone records." 6At the hearing of the appeal the appellant confirmed that he made no complaint about the sentence imposed and he withdrew any suggestion in earlier documents that he sought to apply for leave to appeal against the sentence. 7The prosecution case was that the appellant met the complainant at a hotel on the Central Coast and each of them consumed alcohol. The appellant then offered the complainant a lift home which she accepted. Rather than taking her home, the appellant drove her to an area of bushland nearby and had penile vaginal sexual intercourse with her against her will. The complainant fought and struggled and in the course of the incident she sustained various injuries. After that incident the appellant drove the complainant back to the hotel. 8The Crown case was dependent upon the evidence of the complainant but her evidence received support in various forms. She had made an immediate complaint upon her return to the hotel. There was also medical evidence supporting the complainant's allegation that she had sustained injuries in the course of the attack. Evidence was given by a forensic biologist which established that semen was detected on a lower vaginal swab taken from the complainant. The DNA profile taken from the swab was consistent with the DNA profile of the appellant. There was also evidence from CCTV cameras within the hotel which confirmed the fact that the complainant and the appellant had been drinking together, had left together, and had returned together. 9The prosecution also relied on various things said by the appellant in the immediate aftermath of the incident. About two months after the incident in text messages to his family the appellant had said "I think I did it". In conversations with the police the appellant denied having sexual intercourse with the complainant and claimed that he found the complainant on his way home where he picked her up and returned her to the hotel at her request. The prosecution at trial relied on those statements to the police as lies told in consciousness of guilt and the appellant admitted in cross-examination at the trial that he had deliberately lied to the police. 10The Crown called a psychiatrist, Dr Olav Nielssen, and a neurologist, Dr Beran, to contest the defence case of mental illness. 11The appellant's case was twofold. First, and in accordance with his plea on arraignment, he called evidence to establish that he was mentally ill at the time of the incident and therefore not criminally responsible for his actions. However, as the trial progressed, he also sought to raise a doubt about whether any sexual activity between himself and the complainant was without her consent. 12The appellant gave evidence. Based on the evidence adduced in the Crown case, he accepted that he must have had sexual intercourse with the complainant. However he said that due to his mental state at the time he could not remember that event taking place. He relied on his good character, which was not contested by the prosecution. The evidence showed that apart from some minor and insignificant matters he had no criminal record. He said that it was not in his character to have sexual intercourse without consent. He agreed that he had told some deliberate lies to the police but said that those lies were not told because he knew that he was guilty but, rather, in order to protect his wife or more particularly to protect himself from the ramifications of his wife finding out about the allegations that he had had sex with the complainant. 13The appellant provided a history of epilepsy and other conditions which were said to support the claim of mental illness. A forensic psychiatrist Dr Michael Robert Guffrida gave evidence as to the appellant's mental health and the possible impact of various medications that the appellant claimed to have been taking at the time of the offence. 14At his trial the appellant was represented by counsel. On this appeal he appeared unrepresented. There is no ground of appeal that alleges incompetence by trial counsel: cf R v Birks [1990] 19 NSWLR 677, Nudd v The Queen [2006] HCA 9. At a call-over before the Registrar, the appellant was given the opportunity to amend his grounds of appeal by asserting incompetence of his trial counsel but he declined that offer on the grounds that such an amendment would result in a vacation of the date scheduled for the hearing of the appeal. 15However, at the beginning of his written submissions the appellant indicated that he had an issue with his trial counsel and had complained to the Legal Services Commissioner. The appellant submits: "I understand that the Appeal's Court cannot hear matters of this nature, however I may make mention to this poor representation not for the purpose of defence but to [show] how and why my trial was in trouble and issues that arise from that." 16On appeal, the respondent tendered evidence obtained from the Legal Services Commissioner. This included the appellant's complaint, defence counsel's response and the decision made by the Legal Services Commissioner. The complaint has been dismissed. However, the appellant informed the Court that he intends to appeal against the dismissal. Counsel for the respondent, who conducted the appeal responsibly and with restraint, fairly conceded that the conclusions of the Legal Services Commissioner should not be taken into account in considering the conduct of trial counsel. However she stressed that the appellant declined the opportunity to press a specific ground about counsel's conduct and notes that counsel has not had the opportunity to respond to the complaint. She says that the material tendered is relevant to show defence counsel's response to the appellant's allegations in circumstances where trial counsel has not had the opportunity to be heard in this Court. 17As will be seen when ground (3) is analysed, there is substance in the assertion that the appellant's barrister at trial made a significant error in the conduct of the proceedings. However, it is important to remember that there is no specific ground asserting the kind of "flagrant incompetence" that has sometimes led to appellate court's finding that trial proceedings had miscarried due to the conduct of the case by trial counsel: cf R v Ensor [1989] 1 WLR 497 at 502; [1989] 2 All ER 586 at 590; R v Birks (1990) 19 NSWLR 677. 18I turn now to consider the grounds of appeal that are relied upon by the appellant.

Appeal Ground (1) "(1) His Honour was in error by not explaining the DNA report to the jury when introduced into evidence. The Crown introduce the DNA report poorly so the Jury could not have reached there verdict of beyond reasonable doubt due to the misinterpretation of the DNA evidence tendered by the Crown in evidence." 19By this ground of appeal the appellant contends that the DNA evidence, which was led by the Crown without objection, was wrongly admitted into evidence, was not subject to sufficient explanation to enable the jury to understand it and/or was presented in an unfair and incomplete manner. 20The appellant complains that whilst samples were taken from various other places, the only evidence led was the evidence that the appellant's DNA, probably from his semen, was located on the lower vaginal swab taken from the complainant. The appellant refers to statements made by the complainant which suggested that his semen may have been present at other locations. For example, the complainant told a barman that she had "cum dripping down my leg". 21None of this provides any basis upon which it could be said that the evidence was inadmissible. The evidence was plainly relevant. It provided cogent support for the complainant's allegation that sexual intercourse, including ejaculation, had occurred. In view of the appellant's denial to the police that he had engaged in sexual intercourse with the complainant and his case at trial that he could not remember that event, it was important for the jury to hear evidence which provided support for the complainant's allegation that sexual intercourse had occurred between them. 22The evidence was correctly admitted. 23As to the complaint that the evidence was not sufficiently explained to the jury, the prosecution called Dr Wedervang, the forensic biologist who had provided the DNA report. She explained relevant terminology and the nature of the science. It is true that that evidence was relatively brief. She was not cross-examined. Stripped of the science behind DNA evidence, the evidence was straightforward and needed little explanation. The evidence was not contested and there is no suggestion that it could have been contested. The evidence established that on examination by a medical practitioner, swabs were taken from the complainant's vagina. Smears from the swabs were tested and showed the presence of semen. The appellant provided police with buccal swabs and a comparison between the DNA profile of the vaginal wall swabs could be made with the DNA profile of the appellant. That comparison showed to a very high degree of certainty that the appellant's DNA was present on the lower vaginal swab taken from the complainant. Very little further explanation was required. 24The appellant's complaint that the DNA evidence was incomplete requires closer examination. The appellant's complaint was well articulated on the hearing of the appeal. It was also contained in his written submissions. He says that the DNA examination suggested or established that there was a third contributor to the DNA mixture found on the swabs taken from the complainant. He asserts that this third contributor was effectively hidden from the jury. The third contributor was a male. The transcript confirms that the crown prosecutor cut off Dr Wedervang when she said that "traces of DNA from a third individual were also ...". 25At the hearing of the appeal the appellant asserted that he now had information to suggest that the existence of a third contributor to the DNA mixture showed that the complainant must have had sexual relations with another man after the sexual relations which formed the basis of the charge against him. According to the appellant, this undermined the suggestion that the complainant did not consent to sexual intercourse with him. 26The information to which the appellant was referring was information provided to him by a biologist, who he had met whilst in prison. Apart from the appellant's assertions in relation to the inference to be drawn from the existence of a third contributor, there is no evidence to support a conclusion that the third contributor had sexual relations with the complainant at any particular time. There is certainly no evidence to support the proposition that the complainant had sexual intercourse with anybody after the incident involving the accused and before she was seen by the doctor. 27On one view, the evidence of the third contributor was not relevant to the questions to be determined by the jury. But even if the evidence was relevant in some way it was likely to be excluded as a result of the correct application of s 293 of the Criminal Procedure Act 1986 (NSW). That section is in the following terms:

Admissibility of evidence relating to sexual experience (1) This section applies to proceedings in respect of a prescribed sexual offence. (2) Evidence relating to the sexual reputation of the complainant is inadmissible. (3) Evidence that discloses or implies: (a) that the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible. (4) Subsection (3) does not apply: (a) if the evidence: (i) is of the complainant's sexual experience or lack of sexual experience, or of sexual activity or lack of sexual activity taken part in by the complainant, at or about the time of the commission of the alleged prescribed sexual offence, and (ii) is of events that are alleged to form part of a connected set of circumstances in which the alleged prescribed sexual offence was committed, (b) if the evidence relates to a relationship that was existing or recent at the time of the commission of the alleged prescribed sexual offence, being a relationship between the accused person and the complainant, (c) if: (i) the accused person is alleged to have had sexual intercourse (as defined in section 61H (1) of the Crimes Act 1900) with the complainant, and the accused person does not concede the sexual intercourse so alleged, and (ii) the evidence is relevant to whether the presence of semen, pregnancy, disease or injury is attributable to the sexual intercourse alleged to have been had by the accused person, (d) if the evidence is relevant to: (i) whether at the time of the commission of the alleged prescribed sexual offence there was present in the complainant a disease that, at any relevant time, was absent in the accused person, or (ii) whether at any relevant time there was absent in the complainant a disease that, at the time of the commission of the alleged prescribed sexual offence, was present in the accused person, (e) if the evidence is relevant to whether the allegation that the prescribed sexual offence was committed by the accused person was first made following a realisation or discovery of the presence of pregnancy or disease in the complainant (being a realisation or discovery that took place after the commission of the alleged prescribed sexual offence), (f) if the evidence has been given by the complainant in cross-examination by or on behalf of the accused person, being evidence given in answer to a question that may, pursuant to subsection (6), be asked, and if the probative value of the evidence outweighs any distress, humiliation or embarrassment that the complainant might suffer as a result of its admission. (5) A witness must not be asked: (a) to give evidence that is inadmissible under subsection (2) or (3), or (b) by or on behalf of the accused person, to give evidence that is or may be admissible under subsection (4) unless the court has previously decided that the evidence would, if given, be admissible. (6) If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified. (7) On the trial of a person, any question as to the admissibility of evidence under subsection (2) or (3) or the right to cross-examine under subsection (6) is to be decided by the court in the absence of the jury. (8) If the court decides that evidence is admissible under subsection (4), the court must, before the evidence is given, record or cause to be recorded in writing the nature and scope of the evidence that is so admissible and the reasons for that decision. 28Evidence of a third DNA contributor was likely to disclose or imply that the complainant may have had a sexual experience other than that charged against the appellant. Section 293(3) of the Criminal Procedure Act was engaged. Unless the evidence was caught by the exceptions in sub-ss (4) or (6), it was not admissible. 29The evidence did not naturally fit into any of the exceptions under sub-s (4) and sub-s (6) had no application. It may have been possible to argue that sub-paragraph (4)(a) had some application, however, there was no evidence to establish that the sexual experience occurred "at or about the time" of the alleged sexual offence and no evidence that any such experience was part of "a connected set of circumstances" in which the offence was allegedly committed. There was no other applicable exception to the exclusionary rule. 30In the circumstances it is not surprising that the material was excluded from the trial. It was not admissible. 31For the reasons I have articulated ground (1) must be rejected.

Appeal Ground (2) "(2) The Jury were never supplied with all the evidence regarding the Medication that the Accused (Herbert) was on at the time of the alleged offence nor was it explored. If the Jury had this information the verdict of the Jury would not have been unreasonable." 32In his written submissions the appellant recast this ground to some degree but the effect of the argument is the same. The contention is that the jury was not provided with all or sufficient information regarding the medications or drugs that the appellant was taking at the time of the offence. The appellant was taking a combination of drugs which he says affected his mental capacity, making it difficult to prove the necessary intention. The evidence may also have been relevant to the jury's assessment of the credibility of the appellant's assertion that he could not remember the one hour or so when he was with the complainant. Without such an explanation, the jury may have taken the view that the appellant's account was incredible. 33There is no substance to this ground of appeal. The appellant had provided a history to Dr Guiffrida in which he had explained the medication or medications that he was on at the time. Dr Guiffrida gave evidence and part of that evidence was an exploration of the impact of those drugs on the appellant's mental state at the time. Dr Nielssen, who was called by the Crown on the issue of mental illness, was also examined in relation to these matters. In his evidence in chief, the appellant was asked a number of questions directed both to his medical history and the medications which he had been prescribed in the course of his life. He was also asked about the medications that he had consumed at around the time of the offence and he gave evidence both as to the drugs that he had taken and the impact that those drugs had upon him. His wife also gave evidence as to those matters. 34The case was plainly prepared on the basis that both his psychiatric condition and the medications he took were live issues in the trial. The method in which his evidence in chief was adduced, which gave significant focus to those matters, and the retaining of expert psychiatrists to give evidence as to those matters shows that counsel's focus was on the issue. 35The appellant's submissions include extensive reference to the impact of various drugs when taken in combination. He provided the Court with information from 'MIMS' as to the impact of Lovan and Xanax. The appellant contends in the light of his own experiences and the scientific research that he has undertaken, some of these medications - in particular the drug Xanax - are dangerous and pernicious substances. He asserts in his ground of appeal that the jury would not have convicted him "unreasonably" if they had been fully apprised of the impact that such drugs may have had on him at the time of the alleged offence. 36Insofar as this ground attempts to adduce new evidence as to these matters I would reject the tender of such material. As I have said it is clear that the preparation of the appellant's trial focused to a very significant degree on the very issue that the appellant now seeks to ventilate. Further, the conduct of the trial from beginning to end brought into focus the matters to which reference is now made. 37Nothing that the appellant now says on this issue would have made any difference to the jury's assessment of the case. The evidence that was adduced at trial clearly brought home to them the issue that was raised. The jury had the benefit of expert opinion from both Dr Nielssen and Dr Guiffrida, the evidence of the appellant and his wife as well as the evidence of his behaviour in and around the time of the alleged offending. The jury was in a position to make an assessment, one way or the other, as to whether those matters impacted upon the credibility of the appellant and his capacity to form the requisite intention and the issues of voluntariness and mental illness. 38I reject ground (2).

Appeal Ground (3) "(3) His Honour Judge Ellis was in error: The trial should not have continued when it was noted that the accused (Herbert) was extremely unwell and was on a mind altering drug (Xanax) to relieve his symptoms of Anxiety which lead to him having very little memory of the trial and proceedings. The accused (Herbert's) trial should have been aborted or a mistrial called, as he was unable to give proper instruction to his Council during the course of the trial and defiantly not in the right state of mind to give evidence." 39This ground was argued in the written submissions somewhat differently to the precise ground that was raised in the Notice of Appeal. In view of the fact that he is unrepresented in this appeal it is necessary for the Court to approach such a technicality with a degree of flexibility. The appellant contends by ground (3) that the trial judge fell into error in a number of specific respects. He particularised five errors (a)-(e) and, with the exception of (b), which requires closer examination, I will deal with them in the order that they were articulated in the written submissions. 40The first error (a) was that the trial judge fell into error by becoming "the third [counsel]" by questioning a number of witnesses in a manner that demonstrated bias because the questioning tended to assist the prosecution. 41The first answer to this assertion is that no complaint was made at trial in circumstances where a thorough review of the record of proceedings shows that defence counsel was more than happy to engage in debate with both her opponent and the trial judge. This means that any complaint now made must be made with the leave of the court under rule 4 of the Criminal Appeal Rules (NSW). If there is substance to the complaint that the trial judge demonstrated bias in his conduct of the proceedings I would certainly grant such leave. 42However, having reviewed the transcript closely, I am unable to discern that Judge Ellis at any stage disclosed bias towards the appellant. It is true that he asked a number of questions in the course of the evidence. However, that questioning was not repetitive or tendentious. It is also true that he intervened in defence counsel's examination of the complainant on more than one occasion but those interventions were justified in the circumstances. On one occasion his Honour questioned counsel as to the purpose of the cross-examination and why the complainant was being interrogated at length in relation to fine and peripheral detail. However, his Honour asked the jury to leave the court room while he made those inquiries so that his intervention did not to prejudice the appellant's right to a fair trial. In some respects this was helpful to the appellant in that it encouraged counsel to focus on issues that may actually make a difference rather than on peripheral details which the jury was unlikely to find helpful. 43Other interventions were calculated to clarify issues that may have been confusing to the jury. 44The case is far removed from the kinds of cases where a trial judges intervention has caused the proceedings to miscarry: R v Lewis [2001] NSWCCA 345, R v Esposito (1998) 45 NSWLR 442, R v Murray; R v Bates (District Court (NSW), Hunt CJ at CL, Smart and Grove JJ, 6 April 1992), R v Mawson (Supreme Court (NSW), Winneke CJ, Adam and Barber JJ, 11 November 1966), R v Stranger (Court of Criminal Appeal (NSW), Gleeson CJ, Smart and Grove JJ, 28 June 1989). I can see no substance to ground (3)(a). 45I will return to ground 3(b). 46The appellant complains in ground (3)(c) that the trial judge fell into error by not allowing evidence that police had withheld evidence of "missing CCTV footage" and "missing telephone records". This part of ground (3) relates closely to ground (5). 47Evidence tendered by the respondent on appeal establishes that there was significant disclosure in advance of the trial and that no evidence was withheld. The CCTV footage and statements of employees of the relevant telephone companies were served while the matter was in the Local Court. 48What happened at the trial is that the parties agreed that rather than tendering vast pages of telephone records it would provide a chart of relevant telephone calls. While the appellant now contends that there were other relevant telephone calls made, I can see no basis for this in the material. The approach taken at trial was a sensible one and allowed the jury to focus on the telephone calls that were relevant. 49As to the CCTV footage the appellant seems to believe that there was potentially other footage available - particularly footage from outside the hotel - which would have created some doubt as to the issue of consent. 50It appears that all of this evidence was disclosed to the defence before the hearing although it is unclear whether every camera available either worked or was produced. Nevertheless, the CCTV footage that was available provided ample evidence on which the jury could make assessments as to the behaviour of both the appellant and the complainant. This included evidence favourable to the appellant in that plainly he and the complainant were getting on well at the hotel before they left and also that they left the hotel together. 51Defence counsel used the CCTV footage to good effect in challenging the memory of some of the witnesses. That evidence may have assisted the defence in attempting to persuade the jury that there was a reasonable doubt as to the question of consent but, plainly enough, the jury was not so persuaded. 52The trial judge made no error in relation to issues of non-disclosure. 53The next error alleged to have been made by Judge Ellis concerned his Honour allowing the trial to continue even though he knew "full well that the appellant was under the influence of the mind altering drug Xanax". The appellant contends that he had an "anxiety attack" on 18 May 2011, and that he then took Xanax on the advice of Dr Guiffrida who was present and waiting to give evidence. In oral argument the appellant explained that he had a terrible addiction to Xanax earlier in his life, an addiction that he had fought and conquered. When he took Xanax in the course of the trial, he experienced a relapse. 54He says that from that point he was unable properly to involve himself in the trial, was unable to instruct his counsel as to important matters and (I infer) was at a disadvantage when he returned to the witness box on 20 May 2011. The record of the proceedings shows that the appellant commenced to give evidence on 18 May 2011. As I understand the complaint now made, the anxiety attack which prompted the appellant to take the Xanax occurred on that day although it is not completely clear to me at what time of the day this occurred. In any event when the trial came to resume on 19 May 2011 the first thing that happened was that counsel then appearing for the appellant raised the issue with the trial judge. She informed the trial judge that the appellant was having breathing problems. Counsel attempted to have the complainant's family removed from the court while she made the application but the trial judge insisted that she articulate the problem in open court. The appellant's counsel went on to explain in some detail the difficulties that the appellant was experience experiencing. For example she said: "[A]s your Honour knows Mr Herbert has a long history of collapses, whatever the underlying causes are he has ended up in hospital and is unconscious over a number of years, some 30 years or so. He has been maintaining control while in these proceedings although at times it has been precarious. He has become increasingly unwell last couple of days. His wife told me last night that he was - he had a significant tremors and was disorientated. He hasn't eaten or slept it would seem for a couple of days...". 55Counsel told the trial judge that she herself had witnessed the appellant becoming unwell in court and that she had rushed him out of court as a result. She told the judge of the observations of various friends of the appellant and of the intervention of medical practitioners. After explaining this counsel for the appellant said: "[H]e wishes the matter to proceed, family members have gone home to get medication for him, in fact Xanax because he hasn't been taking it, but that's to relieve anxiety and that was at Dr Guiffrida's recommendation." 56Part of the complaint appeared to be that one of the witnesses associated with the complainant had "followed" the appellant and trial counsel, and the trial judge became involved in a debate about whether their observations were the same. However that seemed to be a peripheral issue to the one that counsel was raising. As a result of that issue, the trial judge directed one of the witnesses to avoid any circumstance that might result in the appellant having a perception of being followed. That was an unusual thing for his Honour to do and plainly based on an acceptance of the perception that both the appellant and his lawyers had. 57The result of the discussion was that the appellant was excused from the witness box and Dr Guiffrida was interposed in order to allow the trial to continue. By that stage the trial had proceeded well beyond the estimate that had been given as to its length. At the conclusion of the psychiatrist's evidence, the case was adjourned until 20 May 2011. 58When the case resumed the accused returned to the witness box. There is nothing in the transcript of his evidence on 20 May, particularly when compared to the transcript of his evidence on 18 May, to suggest that the appellant had any greater difficulty in giving evidence on that day. Further, there was no application to vacate the trial or to abort the trial or to further adjourn the proceedings. It can only be assumed that counsel then appearing was of the view that the appellant was capable of continuing to give evidence and capable of continuing to instruct her insofar as such instructions were necessary at such a late stage of the proceedings. 59The written submissions under ground (3)(e) indicate that the appellant alleges that Judge Ellis fell into error in the sentencing hearing by not taking into account the decision of this court in R v Hopkins [2004] NSWCCA 105. However at the hearing of the appeal, the appellant indicated that he did not pursue an appeal against sentence. 60Ground (3)(b) raises a matter of some concern. While the complaint is one directed to the conduct of Judge Ellis, the real problem concerns the conduct of trial counsel. The complaint, on its terms, is that Judge Ellis erred in allowing inadmissible evidence to be introduced into the trial in circumstances where the prosecution had agreed that it would not lead that evidence. The ground expressed in those terms is misconceived. It was not Judge Ellis, but the appellant's barrister, who introduced the evidence into the trial. The circumstances in which that occurred are quite extraordinary. 61The evidence in question concerned part of the conversation that the appellant had with police officers a short time after the alleged assault. The police alleged that the appellant had said words to the effect that he had ejaculate ("cum") on his shirt and that this ejaculate was the result of him attending a brothel that night. That conversation was not recorded by electronic means. It was a conversation made at the scene of the appellant's arrest. Later that morning the appellant took part in an electronically recorded interview with police. In the course of that interview, police attempted to have the appellant adopt the earlier conversation, including the part of the conversation concerning the appellant having "cum on his shirt" and having been to a brothel. The appellant neither adopted nor confirmed that the conversation had taken place. On the other hand, he did not deny it. Rather, he indicated that "I will refrain from going any further on that one" and "No, I will not go into that conversation". The result of this was that the police asserted a conversation which was neither recorded nor adopted by the appellant. 62In those circumstances the appellant's counsel indicated to the prosecutor that she objected to those statements. The statements were potentially very damaging to the defence and capable of being used by the jury in two related ways. There was evidence to establish that the assertion that the appellant had been to a brothel was false. The Crown would have contended that the statement was a deliberate lie told in consciousness of guilt. Further, the Crown would have contended that the appellant's reference to "cum on his shirt" was an attempt to justify the presence of semen in circumstances where, in other statements to the police, he denied having sex with the complainant. I interpolate here that the appellant adopted the denial of sexual intercourse and at the trial he admitted that this denial was a deliberate lie. He claimed at the trial that "I didn't know, but I didn't want to put myself in a position where I had to go home and explain to my wife I'd been charged with this". He agreed with the proposition that he had "made a deliberate decision to give these detailed lies to the police". 63Returning to his statements concerning the ejaculate on his shirt and the visit to the brothel, the objection taken by counsel was based around s 281 of the Criminal Procedure Act which provides:

Admissions by suspects (1) This section applies to an admission: (a) that was made by an accused person who, at the time when the admission was made, was or could reasonably have been suspected by an investigating official of having committed an offence, and (b) that was made in the course of official questioning, and (c) that relates to an indictable offence, other than an indictable offence that can be dealt with summarily without the consent of the accused person. (2) Evidence of an admission to which this section applies is not admissible unless: (a) there is available to the court: (i) a tape recording made by an investigating official of the interview in the course of which the admission was made, or (ii) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in subparagraph (i) could not be made, a tape recording of an interview with the person who made the admission, being an interview about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (b) the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made. (3) The hearsay rule and the opinion rule (within the meaning of the Evidence Act 1995 ) do not prevent a tape recording from being admitted and used in proceedings before the court as mentioned in subsection (2). (4) In this section: "investigating official" means: (a) a police officer (other than a police officer who is engaged in covert investigations under the orders of a superior), or (b) a person appointed by or under an Act (other than a person who is engaged in covert investigations under the orders of a superior) whose functions include functions in respect of the prevention or investigation of offences prescribed by the regulations. "official questioning" means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence. "reasonable excuse" includes: (a) a mechanical failure, or (b) the refusal of a person being questioned to have the questioning electronically recorded, or (c) the lack of availability of recording equipment within a period in which it would be reasonable to detain the person being questioned. "tape recording" includes: (a) audio recording, or (b) video recording, or (c) a video recording accompanied by a separately but contemporaneously recorded audio recording. 64The prosecutor at trial took what the trial judge described to be a "generous" approach. The prosecutor elected to accede to the defence objection and undertook not to adduce the evidence. Accordingly, when the relevant police officers were in the witness box no evidence was led to them regarding the part of the conversation where the appellant told them that the "cum on his shirt" was the result of an earlier visit to a brothel. Similarly, the electronically recorded interview (which became exhibit N) was edited so that the attempts by the police to have the appellant adopt those statements in the recorded interview were deleted. 65The situation at the close of the prosecution case was that no evidence had been adduced in support of the contention that the appellant had said those things to police. As noted this was the result of the prosecutor accepting the defence submission that the evidence was inadmissible as a result of the operation of s 281of the Criminal Procedure Act. To that point of the trial, Judge Ellis had not been called upon to make any ruling as to this matter because the parties had agreed that the evidence would not be admitted. 66It is in those circumstances the following extract from the appellant's evidence in chief is remarkable: Q. Do you have a recollection of officers arriving, the first officers who arrived, to speak to you? A. Yes, female constable. I remember her. Q. Do you recollect a conversation you had with her? A. Not fully, no but we did have a conversation, I know that. Q, You've seen the record of interview where you were asked to adopt comments that you made to the officer? A. That's correct, yes. Q. You have seen that a number of times? A. Yeah. Q. You have read it a number of times? A. Yes. Q. Do you remember telling the officer that you had been at a brothel? A. No I don't. Q. Remember seeing that footage? A. Yes. Q. Had you been at a brothel? A. No. Q. Are you able to explain why you said that? A. No. Q. Do you remember saying to the officer that you had some cum on your shirt? A. No. 67It can be seen that the impugned statements were led by defence counsel who had not only taken the original objection, at least in conversations with the Crown, but had also been present in court when the police officers gave evidence and when the electronically recorded interview was played to the jury in its edited form. 68When the jury retired after that part of the examination the Crown prosecutor raised the matter with the trial judge. The trial judge said to defence counsel: "I don't know why you did that. I hadn't heard that before." 69Defence counsel asserted that the evidence was "in". The trial Judge said "No it wasn't in", and the prosecutor confirmed: "It wasn't in. You objected to it. It was taken out of the ERISP. That was the edit that was required to the ERISP and it was also taken out of the statement of Detective Gillies when it was read." Defence counsel maintained that "it's in here. It's in the ERISP". 70In due course, defence counsel was persuaded that the evidence had been excised in accordance with her request. However, she "thought that part remained in". She said that she had "obviously made a mistake" because she "didn't think those words were taken out". She acknowledged that it was "my fault" and that "it is clearly a stuff up on my part your Honour". 71The Crown indicated that she wished to cross-examine the accused on the issue and to lead evidence from the police officers to prove that the words had been said by the appellant. It is significant, in light of the assertion that the trial judge fell into error by admitting the evidence, that his Honour said this: "Yes well I am more concerned now about sheeting home to your client your mistake effectively." 72The conduct of defence counsel placed the trial judge in an invidious position. His Honour was plainly troubled by what had occurred and saw the unfairness in the accused person being disadvantaged because of the lack of focus and rigour of his barrister. On the other hand the material had been introduced before the jury in circumstances where the prosecutor had taken a reasonable and reasoned position and where the evidence if accepted was plainly relevant evidence. 73Following further discussions and consideration, the prosecutor was permitted to cross-examine about the matter. The appellant admitted (or could not deny) that the words had been said. He also acknowledged that he had told other lies to the police. The relevant part of the cross-examination is as follows: Q. Do you agree that you never once said to Senior Constable Murray, "I have no memory of what happened when I was away from this hotel"? A. I've been caught out in a lie, I was worried about what my wife was going to say. We were going to, as I said, we were going through a hard time, right, and I did, I invented it, I made it up, right, because I couldn't remember what took place. Q. Well, why not just say, "I have no memory". That wasn't going to implicate you in an offence was it? A. At the time I didn't believe I'd done anything wrong. Q. Well at the time, what did you believe you'd done? A. Well it was already, while Constable Murray was there, the other constable was there, right and he was throwing questions at me left, right and centre. That hasn't gone in the ..(not transcribable).. books. Q. What you told her, she asked you specifically this question. "Was there any sexual contact with the complainant?" A. Yes. Q. And you said, "no"? A. Yes. Q. That was a lie? A. Yes. Q. And you say it was a deliberate lie to protect your wife? A. Correct. Q. Is that right? A. Correct. Q. Because you knew didn't you, that there had been sexual contact between you and the complainant? A. I didn't know, but I didn't want to put myself in a position where I had to go home and explain to my wife I'd been charged with this, at that point in time I was only just being, it was just a, a few questions asked me around about the incident. Q. So you say you made a deliberate decision to give these detailed lies to police? A. At the time yes. Q. And when Detective Chad Gillies arrives, this is about 12.20 am. So you'd been back in-the hotel about two hours and 20 minutes at this point in time. You told him didn't you that you had nothing to hide? A. Well, yes. Q. Well that was a lie wasn't it? A. Well the lie I'd told, yes, was a lie on a lie. Q. So now, when Detective Chad Gillies arrives, you again made the deliberate decision to continue lying, is that the position? A. I didn't want to get caught out. Q. And he told you that the police would be taking your clothing for a forensic examination didn't he? A. I believe so yes. Q. And you said to him, "You're not getting them, I'll get my lawyer here"? A. Well that's what I wanted to do. Q. So you then said to him, "Your forensic evidence has been contaminated, if you're worried about the come on my shirt, it's here. I was at a brothel tonight"? A. That's in the statements, yes, so I have to agree with it. Q. And Detective Gillies said to you, "You said you were at a brothel" and you replied, "I fucked my guts out at a brothel, is that okay, I'll have come on my shirt." That's what you said to police wasn't it? A. It's in the statement, I can't argue. Q. And what you're indicating to police was, they may find semen on your shirt, but it was nothing to do with a sexual encounter with the complainant, it was because earlier on in the night, you'd been at a brothel, that's what you were telling them? A. Well that's more than likely what I alluded to, yes. Q. You now tell the court that you never had been to a brothel that night, had you, that was a lie? A. Yes. Q. But you knew that there was semen on your shirt? A. Well, I didn't, but I was using it as a way out. Q. You were trying to explain away why there would be semen on your shirt, weren't you, innocently is that right? A. Yes. Q. The only way you could have known there was semen on your shirt, was because you remembered a sexual encounter with [the complainant] that's right isn't it? A. No. 74In so far as this ground of appeal asserts error on the part of the trial judge, it must be rejected. The trial judge made no error and was plainly concerned to exercise his functions in such a way that the appellant was no more prejudiced in the conduct of his defence. Once the evidence had been introduced by defence counsel, the prosecutor's application to cross-examine on the issue could not properly be refused. Indeed, the prosecutor was under no obligation to raise the matter in advance once it had been raised in evidence in chief. 75However, because the appellant is unrepresented on the hearing of the appeal I have considered the question in a more global way. In particular, I have considered the question of whether or not the conduct of the appellant's counsel caused the proceedings to miscarry. I am in little doubt that the conduct of the appellant's counsel might be described as "flagrantly incompetent". This is the kind of description that has been used in some of the cases where miscarriages of justice have been said to arise from the conduct of defence counsel at trial. In effect, it constitutes an exception to the rule that litigants are bound by the conduct of their lawyers. 76In R v Birks (1990) 19 NSWLR 677 Gleeson CJ said at [685]: "The relevant principles, may be summarised as follows: 1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2 . As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 77The ultimate question is not one that is focused on the conduct of the lawyer but on whether there has been a "miscarriage of justice". This point was emphasised in a trilogy of cases in the High Court: TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [30] per Gaudron J and at [74]-[76] per McHugh J, Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662; 214 ALR 1; Nudd v R [2006] HCA 9. 78In TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Gaudron J said (at [31]): "As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of 'flagrant incompetence', 'egregious error' or the like." 79The matter was discussed by McHugh J (at [74]-[85]). His Honour said (at [79]): "The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, 'whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue'. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the trial? Second, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, "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". The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial." 80Gleeson CJ put it simply in Nudd v The Queen (at [2]), a case decided under the Queensland equivalent of s 6(1) Criminal Appeal Act: "The jurisdiction invoked was that conferred by s 668E of the Criminal Code (Q), which is in a form similar to the statutory provisions governing criminal appeals in the other Australian States and Territories. The statutory ground of appeal was that there was a miscarriage of justice. That, as was said in R v Birks, Ignjatic, TKWJ v The Queen, and Ali v The Queen, defined the issue to be decided. The appellant's criticisms of the conduct of his trial counsel were relevant to the issue, but the issue was whether there was a miscarriage of justice." 81In the same case Gummow and Hayne JJ said (at [24]): "As four members of this Court explained in TKWJ v The Queen, describing trial counsel's conduct of a trial as "incompetent" (with or without some emphatic term like "flagrantly") must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code (Q). "Miscarriage of justice", as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial." 82It will be seen that the exercise is not designed to attribute blame but rather to determine whether the conduct of counsel can properly be said to have resulted in a miscarriage of justice. 83I am not certain that the evidence was inadmissible under s 281. Had that question been explored at the trial it may have been open to the trial judge to find that there was a "reasonable excuse as to why a tape-recording had not been made". 84It is impossible for this Court to come to any considered conclusion as to the applicability of s 281. However, the Court can consider the context in which this evidence was adduced and whether the incompetence of defence counsel caused a miscarriage of justice. In this context it is important to remember that the evidence was used in order to establish a consciousness of guilt in the appellant. As was pointed out by counsel for the respondent in this Court there was ample evidence upon which the jury might have concluded that the actions of the appellant in the period after the alleged offence demonstrated a consciousness of guilt. 85In particular, and without setting out all of the evidence, the following was capable of establishing a consciousness of guilt: (1)At about 11.45pm on 22 December 2008 the appellant told Senior Constable Murray that he did not have any sexual contact with the complainant. (2)He told SC Murray that he found the complainant "at Apex Park, face down, comatose". (3)At around 4:00 am in a recorded interview he again asserted that he found the complainant in a gutter. (4)In the same interview he claimed that he was sweating when he returned to the hotel because of the effects of medication (Lovan) but that this had worn off by the time the police arrived. (5)He also said that he had never had consensual sex with the complainant. (6)On 6 March 2009 he sent a text message to members of his family which stated "I think I did it. I'm remember flashbacks." (7)On the same day he threatened or implied that he may attempt to commit suicide and was found in bushland with rope around his neck. (8)When police approached him on that occasion he again said that he had found the complainant in a gutter and helped her by driving her back to the hotel at her request. (9)He gave evidence at the trial that he had no memory of the events at all. (10)He agreed in his evidence that he had told deliberate lies to the police and had not asserted to the police that he had no memory of the events. 86The jury was entitled to use the evidence of lies as evidence of consciousness of guilt. It received appropriate directions as to the matter. The appellant provided an explanation for telling the lies, namely that he was trying to avoid conflict with his wife, but the jury was entitled to reject that explanation. 87The existence of this other material going to the consciousness of guilt persuades me that the incompetent introduction of the evidence that he lied about going to a brothel to justify the "cum on his shirt" did not affect the result of the trial and did not lead to a miscarriage of justice. 88As I have already said the ground of appeal which asserts error on the part of the trial Judge cannot be sustained. Further, the appellant elected not to prosecute a ground of appeal relying on counsel's incompetence. Even so I should record that if he had raised such a ground I would have rejected the ground on the basis that the clearly egregious error made by the barrister did not lead to a miscarriage of justice.

Appeal Ground 4 "(4) His Honour Judge Ellis was in error: By not letting in all evidence regarding inconsistencies in statements regarding the Crown witness the Jury would have had a different view of the defence case during the trial and the Verdict of the Jury would not have been unreasonable and would have been supported by the evidence." 89Contrary to the thrust of the submissions made under this ground, the trial judge allowed defence counsel to explore inconsistencies said to arise in the complainant's version of events and in the prosecution case generally. 90As the respondent submits, the appellant has not identified precisely what ruling the trial judge made which is said to be erroneous. As the respondent also submits, if the complaint is that the sentencing judge at one stage intervened during the cross examination of the complainant, that intervention was in the circumstances both restrained and appropriate. His Honour also assured counsel "you can ask whatever you like, whatever forensic decision you make is a matter for you". 91Most, if not all, of the individual items of evidence referred to in the appellant's submissions were before the jury. This includes the CCTV footage and summaries of the records of telephone calls. The jury was entitled to draw inferences from that material as to whether it supported the prosecution case or whether it was inconsistent with it (as the appellant now contends). 92I would reject ground (4). I can identify no error made by the trial judge and the exploration of matters of detail and inconsistency was adequate to enable the jury to form the necessary factual conclusions that it was called upon to form in determining the issues between the parties. It is not without significance that whatever attack the defence counsel made was made without the benefit of any instructions from the appellant in circumstances where the appellant claimed to have no memory of the relevant one hour period.

Appeal Ground (5) "(5) The Verdict of the Jury would not have been unreasonable if the Police and Crown tendered all evidence and had all exhibits tested for DNA, all CCTV footage and all phone records." 93I have already dealt with the substance of this ground in considering ground 3(a). That ground was directed to the conduct of the trial Judge. The present ground is a more general assertion that there was a miscarriage of justice as a result of non-disclosure by the police and prosecuting authority. It falls to be considered by reference to principles considered by the High Court in the case of Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593; (2001) 75 ALJR 1708. 94In Grey v The Queen there was no issue as to non-disclosure. The prosecution conceded that it had not disclosed material relevant to the credibility of a central witness. The decision revolved around significance of that material. In this case, the Crown disputes that it failed to disclose any relevant material. 95On the hearing of the appeal, the Crown read an affidavit which was annexed to various documents by which the evidence had been served in advance of the committal hearing. The affidavit also addressed the specific records that the appellant submitted had not been disclosed. 96This material satisfies me that all relevant evidence was disclosed to the appellant's previous solicitors. 97This ground must also be rejected.

The Proviso 98I should also record, for the sake of completeness, that even if one of the grounds of appeal were established I would have applied the proviso in s 6 of the Criminal Appeal Act. I am satisfied that there was no substantial miscarriage of justice. 99I have reviewed the transcript and the exhibits. The case presented by the prosecution was extremely strong. To adopt the kind of language employed by the High Court when considering the application of the proviso, I am of the opinion that conviction was inevitable and that the jury could take no other approach to the evidence. In addition to the evidence given by the complainant, which itself was extremely strong, there was also evidence establishing, or capable of establishing: The movements of the appellant before and after the incident. This included evidence from patrons of the hotel as well as the CCTV footage. That sexual intercourse took place. This was DNA evidence. Almost immediate complaints of "rape" which were, generally and in important respects, consistent with the version that the complainant gave to the jury. This included a description of the location of the incident (in the bush near a water tank) almost immediately after the event. That the complainant exhibited signs of extreme distress shortly after the event. That she was also 'dishevelled' and her hair was roughed up. This evidence came from patrons of the hotel as well as members of her family. That the complainant and the appellant had grass and/or dirt on their clothing consistent with the complainant's account of a sexual account in bushland. Injuries that the jury was entitled to consider to be consistent with the complainant's version of events. Material lies told by the appellant capable of demonstrating a consciousness of guilt. That the defence case that the appellant had amnesia as a result of epilepsy should be rejected. (I am referring here to the forceful evidence of the neurologist Dr Beran who said at one stage that, while everything is possible, what was being put to him by defence counsel "would be as rare as rocking horse manure outside fairyland"). That the appellant was not "mentally ill" at the time of the commission of the offence. 100In view of the fact that the appellant is unrepresented and the significance of the issue raised under ground 3(b), I would grant leave to extend the time in which to appeal and, where necessary, grant leave to appeal. 101However, the appeal should be dismissed.

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Criminal Appeal Rules 1970(NSW)

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