"I am aware of your bail conditions but we need to talk."

The complainant was cross-examined about this. She agreed she sent the message. She said she did not get a reply. When asked whether she had then tried to call the applicant, she said, "Not that I recall, no". The applicant gave evidence that he had received the message in those terms but did not reply to it. This message was not referred to by A in the closing address.

The attempt to call the applicant on 22 September 2018

75 The evidence before this Court is that on the applicant's phone there was a message in Facebook Messenger that the applicant had a missed call: "You missed a call from [the complainant]. Call Back." The applicant says he gave A a copy of the screen shot of this, but does not remember when. A copy of it was located in A's file provided to the applicant's present solicitors. The question asked of the complainant "Did you then try to call him" to which I have just referred, seems to be a reference to this missed call. Having received the answer set out, A did not put to the complainant the screen shot which he had in his possession. The applicant was not asked about this missed call in his evidence-in-chief and nothing was mentioned of the matter in closing.

76 In his affidavit in these proceedings, the applicant explains the timing of meetings with A for the purpose of taking instructions. The applicant says that he met A on 28 August 2018. The inference is that the meeting was relatively brief. After taking short instructions, A said that the applicant should not say anything further until he had received disclosure from police prosecution.

77 On 17 October 2018 the applicant pleaded not guilty and was committed for trial, his first appearance being the first week in February 2019. On 30 January 2019 he emailed A and asked whether they needed to meet before the appearance. He was told the appearance was formal and no meeting was needed. On 18 February the applicant sent a text message to A and asked him to call but that did not happen. On 28 August 2019 the applicant was told by A that the trial was due to start on 11 November 2019 and he would be contacted for an appointment closer to the trial date.

78 In stages, the trial date was put back to 19 November with a meeting finally arranged on 12 November 2019. The applicant says that it lasted less than an hour, with A being occupied with a phone call for about 20 minutes of that period. The applicant says his written comprehension skills are poor and he struggles to express himself well; a fact borne out by reading his interview and evidence. He says he wanted to tell A of witnesses whom he thought would support his case.

79 It is clear that he did not give to A any names additional to those referred to in the Crown papers. He says he was able to explain some important things but it was not possible to discuss all matters that he wanted to raise. Significantly, in his affidavit the applicant says the van message included an emoji so that the whole message read "I hope the van is OK ;)". He describes the emoji as a "winky face", conveying something naughty or inappropriate. However, he provides no specific explanation about why he did not tell A about it.

80 Before this Court, the applicant argues that full instructions ought to have been taken by A at a much earlier time, rather than a few days before the trial was due to start. The submission is that there is some evidence that could have been obtained by proper diligence and which would have proved to be of assistance. Although not specifically directed to the potential witness AD, her evidence does fall into that category. Her affidavit is filed in these proceedings and is relied on.

81 AD is the aunt of both the applicant and of J, the complainant's partner at the time. She says that on Tuesday, 31 July 2018, J and the complainant came to her house looking for the applicant. J was angry. She had a discussion with them and then spoke to the applicant when he arrived later in the day. When confronted with the situation, he admitted to having sex with the complainant but denied that it was rape. He said "If I'd actually raped her why would she have sent me this message?" He then showed her his mobile phone with the message on it. AD is familiar with Facebook Messenger. She recognised the profile as the complainant's. Her evidence is that the message said "I hope the van is alright." She says there "was also a little emoji at the end. I think it was a winky face".

82 Counsel for the applicant did not address the nature of such evidence or the proper approach to it of an appellate court. Counsel for the respondent argued that the test in relation to the evidence should be as though it were fresh evidence; that is, the evidence must be such that it raises a significant possibility that the jury would have acquitted if the fresh evidence had been before it at the trial.

83 Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered by or made available by the exercise of due diligence. Although great latitude is extended to an accused in determining what evidence, by reasonable diligence, could have been made available, this evidence would not seem to qualify as fresh evidence but would be "new" evidence with the difficulties associated with that characterisation. See R v Abou-Chabake [2004] NSWCCA 356, 149 A Crim R 417 at [63]- [67]; Saunders v The Queen [2004] TASSC 95, 149 A Crim R 174 at [13]- [14]. However, the applicant's point is that the evidence is evidence, the existence of which could have been discovered with reasonable diligence on the part of his lawyer.

84 There is a distinction between putting evidence before an appellate court with a view to securing an acquittal or new trial on the basis of the evidence itself, and proving the availability of relevant evidence to demonstrate, for the purposes of seeking a retrial, that a miscarriage of justice was brought about by professional incompetence. In the latter case, the purpose of the tender is not to impugn the verdict as such, but to show what was available with reasonable diligence and could have been called: R v Koeleman [2000] VSCA 141, 2 VR 20 per Tadgell JA, at [44]-[45,] Callaway and Buchanan JJA agreeing; R v Bikic [2002] NSWCCA 227 per Giles JA at [281], [283], Sully and Levine JJ agreeing.

85 In some cases of alleged incompetence where a re-trial is sought, the distinction might be a fine one. That would depend on the scope of what is alleged. In the present case, this particular assertion of incompetence is but part of a broader complaint. It is linked to a subject matter that the applicant says was not otherwise properly pursued at trial. The evidence can be received and assessed accordingly. It seems to me the Court would only need to be satisfied it is relevant, capable of acceptance by a jury and capable of at least some weight being attributed to it.

86 There is another aspect of the van message which I should mention. Part of the applicant's complaints to this Court is that A failed to apply for an adjournment of the trial in circumstances where immediately before its commencement, the Crown disclosed a download of the applicant's phone which had been taken by police in August 2018. In what the trial judge described as an "abysmal situation", Tasmania Police seem to have had the download on 22 August 2018 but did not provide it to the Office of the Director of Public Prosecutions until very shortly before the trial.

87 On the first day of the trial the jury was empanelled but sent away until the following day. Although the trial judge heard argument about the tendency evidence on that first day, the reason for the delay of the start before the jury seems to have been to enable counsel to examine the records. The point is that in his affidavit, A says that he received the applicant's Facebook entries on the applicant's telephone shortly before the trial started. He says although there were 7,000 entries he only had to check over a relatively short period, and "There was no entry with a message from the complainant saying, 'I hope your van is OK'." A seems also to have overlooked the applicant's instructions that he later deleted the message. It is common ground that the records are not records of Facebook entries but records of telephone calls and of SMS text messages. Messages sent via Facebook Messenger would not have appeared in the record examined by A.

88 The starting point is the alleged behaviour by the complainant at the Apple Shed function. The first communication in the above analysis is related to the suggested sexual interest in the applicant on the part of the complainant. From the defence perspective - in the context of that sexual interest - taken as a whole the rest of the communications may suggest an attitude inconsistent with non-consensual sexual intercourse having happened. That presents a broader based theme that was not, as the analysis shows, pursued in the trial.

89 In particular, there is no rational explanation for the failures to put the van message to the complainant, and to address the jury about it. It was a critical part of the defence case. Indeed, counsel for the respondent, although arguing no miscarriage of justice resulted, accepted that the failure to address may well have been an oversight. Further, the failure to put the Facebook "friend request" and to lead evidence about it cannot be rationally explained. It seems a fair inference, as the applicant suggests in his affidavit, that the complainant deleted him as a friend very shortly after the night in question, but then sought to again add him as a friend very shortly after that step.

90 The chronology of events in this period must be borne in mind. The complainant's evidence was that on 31 July 2018 she told her partner, J, about being raped. J spoke to the applicant who denied having had sexual intercourse with the complainant. The applicant then tried to call the complainant, as a result of which she sent the applicant a text saying, "You ruined the best thing I ever had. [Sad emoji face] Don't contact me again." Some eight days later, the complainant has sent a Facebook friend request to the applicant.

91 In the context of this "word against word" trial, the theme of sexual interest in, and arguable inconsistent conduct towards the applicant on the part of the complainant ought to have been pursued in a comprehensive and consistent manner. What happened involved omissions of material assertions and submissions to the jury. I accept that it was a significant omission not to have asked the applicant whether anyone else had seen the van message. AD's evidence is relevant and capable of having some weight. Had the theme been pursued in the way I have suggested, using all of the material, the defence at trial would have taken on a completely different complexion. As it was, the theme was not fully developed; the approach in effect was a haphazard one.

92 These failures are probably sufficient in themselves to satisfy me that there was a miscarriage of justice, but there are some additional matters which provide an accumulation of issues that puts the question beyond doubt.

93 As I have noted above, the applicant argues that full instructions ought to have been taken by A at a much earlier time than happened, and says there is evidence that proper diligence could have obtained, and which would have proved to be of assistance. Primarily the submission is directed at the evidence of LY, an affidavit of whom is before the Court. Mr Y is a friend and work colleague of the applicant. Mr Y was present at the Apple Shed function on 14 July. He is able to give some evidence about what happened that night, although he did not observe the suggested physical contact between the applicant and the complainant as described by the applicant.

94 In any event, counsel for the applicant does not put any great weight on that evidence for the purposes of these proceedings. What is relied on is Mr Y's evidence that on Monday, 30 July, he and the applicant were working together. He said he sensed there was something out of the ordinary with the applicant because he seemed to be distant and not very talkative. Mr Y was frustrated with the applicant because he was trying to get a job done and the applicant was lacking focus. He seemed distracted and on the phone a lot.

95 He asked the applicant what was going on. He says the applicant told him in confidence that the day before he had had sex with the complainant in his van; the applicant was upset because he felt he had betrayed his brother; the applicant said the complainant had instigated the sex by touching him in the van, moving towards the driver's seat and trying to kiss him which caused a collision with the bridge. Y says he was told that the applicant pulled over to see if the van was OK and it was at that point sexual intercourse took place. The applicant told him "he wished he had not given in to her attempts to try and have sex with him".

96 This evidence would have been admissible by way of s 66 of the Evidence Act 2001. It is not inherently improbable. Its import cannot be lightly dismissed. This discussion was at a time before the complainant reported a rape to her friend M in a series of text messages. Those messages were exchanged that evening, 31 July. The applicant's discussions with Mr Y also happened before any suggestion was made to the applicant that sexual intercourse may not have been consensual.

97 In his affidavit, A says that he was not informed of this witness. There is no dispute about that. Having read Mr Y's affidavit, he says he does not think it would have been tactically wise to call him. "The evidence in respect of the complainant being flirtatious I was able to elicit from BW and PO." He accepts that the discussion at work would have been admissible but he says, "That added little to what the applicant had already told the police. In my view it would not have been worth losing the last right of address to use this evidence."

98 I am afraid I see things differently. Mr Y's evidence is independent evidence of a spontaneously offered recounting of events that had happened the day before, and at a time when the applicant had no reason - on his version - to suspect that he may be accused of wrongdoing. I am conscious that counsel who practice in the criminal jurisdiction have different views about the value of the right of last address. That value must depend upon the importance of the evidence adduced. A's view might have been different had he obtained the information in a timely manner and given it proper consideration in advance. As it is, he is making a retrospective assessment.

99 By itself, the failure to ask appropriate questions about potential witnesses in a timely manner, and hence the failure to discover Mr Y's evidence, may not amount to a miscarriage of justice. But that failure needs to be added to the failures in respect of the communications.

100 The applicant raises eight complaints about comments in the prosecutor's closing address. Only one causes me any concern. It relates to things said by the applicant in his police interview. In that interview, the applicant had explained his version and claimed the sexual intercourse was effectively instigated by the complainant and was consensual. The following questions and answers then appear:

"Q So you're not taking any responsibility for the fact that you had sex with your brother's girlfriend?

1. No.
2. You're not taking any responsibility?
3. What do you mean by that?
4. Well, you're putting it all onto her that she had sex with you. You're not accepting that you also had sex with her?
5. Yeah, well I did.
6. Yeah, but only because you lost control?
7. Well not really, it's like, yeah, it's just yeah, when she got at me at the wrong time - pretty much.
8. Well why was it the wrong time?
9. Why?
10. Yeah
11. Well I'd had a couple drinks so when you get a couple drinks into you, you don't, you don't, you don't really think about what you're doing do ya?
12. Well you said you were fine to drive
13. Mm."

101 The prosecutor suggested to the jury that the applicant's demeanour in the interview was quite blasé, with him being solely interested in attributing blame, giving responses that were vague, sketchy and lacking detail. It was suggested the reason was that he was making it up as he went along, he did not want to get caught out by saying too much "... and he's trying to paint himself in the best possible light to cover his wrongdoing, not accepting responsibility through his own actions ...". The prosecutor said the police had even challenged him about this, and read out the part of the interview I have just set out with the exception of the last three questions and answers. The prosecutor then said, "No acceptance of wrongdoing whatsoever."

102 In my view this goes beyond submitting to the jury that what the applicant said in his interview should not be believed or should not create a reasonable doubt because the story is implausible and because of the way in which it was told. Viewed reasonably, that is not the effect of what was said. As the applicant submits, there are two alternative interpretations. The first is that the comments amounted to a suggestion that because the applicant did not admit non-consensual intercourse, it was evidence that he was guilty. The problem with that is self-evident.

103 The alternative is that the comments amounted to an attack on the applicant's character involving a moral judgment on an act of consensual sexual intercourse with his brother's partner. That seems to have been the attitude adopted by the questioning police officer. It might well be the case that in the circumstances the applicant sought to shift responsibility for an act of consensual sexual intercourse, but the suggested failure to "accept wrongdoing" and responsibility for his actions in the context of what he was saying, was unfair.

104 As I explained at the outset, on its own this would not have caused a miscarriage of justice but it is to be added to the matters I have already discussed.

The remaining complaints of the applicant - comments

105 Although it is not necessary to address these in any detail, I feel that something should be said about them. I am not persuaded that alone or in conjunction with other complaints, the failure of A to inspect the scene of the alleged rape is of any significance. It is suggested that had this occurred "fertile material for cross-examination of the complainant" would have been discovered. Most of that relates to the proximity of the scene to the applicant's home where the complainant had stayed the night. The applicant's points are that it was a short distance and so any cries for help or sounding the van's horn could easily have been heard, and there is room to attack the complainant's evidence that they had driven for two to three minutes before something happened. However, as A says in his affidavit, the complainant does not claim to have tried to attract attention. None of the proximity issues were incapable of being conveyed by word.

106 I take the same view in relation to the suggested failure to seek an adjournment of the trial for a period greater than the 24 hour period, in order to assess the phone records. I have already discussed the communications. I am not persuaded that any additional advantage would have been gained by more time for inspection. There is an additional point. The applicant initially claimed in his evidence that his father had driven him from the birthday party to BW's home where the applicant lived.

107 He was cross-examined on the basis of the phone records and on the basis of multiple phone calls at about 4am, conceded that he had used a taxi from the city to Kingston, picked up a friend's car which then had a tyre problem, after which his father picked him up. The applicant says that had he had access to the phone records he would have remembered the true series of events and not had his credibility damaged in that way in cross-examination. I am not persuaded that there is anything relevant in that in relation to that aspect of the complaint.

108 Next is a complaint about the failure to seek the discharge of the jury in the face of what is said to be cross-examination of the applicant about his interaction with the female partner of a friend of the applicant, Ms W. The applicant says the distinct innuendo of the questioning was that the applicant had been sexually involved with Ms W while she was in a relationship with the friend. For some reason the prosecutor saw fit to pursue a line of questioning which she later accepted was tendency evidence, no notice of which had been given, and which the trial judge ultimately ruled did not have significant probative value.

109 The questioning of the applicant involved establishing a relationship between the friend and Ms W, with the following questions and answers asked and given before the trial judge intervened:

"And you were in the middle of it? ... What's - yeah.

Well, you told her that you would have to drop your contact with each other because you didn't want to mess things up for [the male friend], didn't you? ... That's off subject - that off the topic -

No don't you worry about what's off the subject I'll ask you another question ... Say that again?

You would have to stop contact to her and meeting too [sic] and talking to her because of your friend ...".

110 The jury was sent out. Discussion ensued. The line of questioning was disallowed. No application was made to discharge the jury but A submitted the jury be directed that as a matter of law they were to ignore the questioning, and that the relevant passage be removed from the transcript so it would not appear in the copy the jurors had when they were deliberating. The trial judge agreed. When the jury returned the trial judge told the jurors the questions were irrelevant, that he was not going to permit any further questions, and that the passage would be removed from the transcript. His Honour repeated that the questions were irrelevant.

111 In his affidavit, A says that he did not apply for the discharge of the jury because he thought the application would not have succeeded. I think this is clearly a case where the applicant is bound by the conduct of counsel. I am not persuaded that it falls into the category of a decision for which there is no rational explanation.

112 The next issue relates to photographs of the van and the suggested physical improbability of the alleged rape. There is a complaint that photographs of the van supplied to A were not used to cross-examine the complainant and were not adduced. Familiarity with the interior of the van is said to be crucial for the jury to understand that sexual intercourse without consent was highly unlikely. As to this, A says he took the view that the applicant, having admitted having consensual intercourse with the complainant, in the front passenger seat of the van, it was not physically impossible for non-consensual sexual intercourse to have happened. He did not tender the photographs as he would have lost the last right of address. In her evidence, the complainant said she was trying to struggle, she managed to struggle but could not move. Again, I am not persuaded that these decisions are without rational explanation.

113 In a similar category is the suggested failure to properly interview the applicant which led to a failure to cross-examine the complainant about some self-defence skills she allegedly possessed. It is simply asserted there was a failure to make further investigations "and potentially uncover a wealth of fertile material for cross-examination." The argument has no merit.

114 As I earlier noted, an appellant who seeks to establish that the conduct of counsel caused a miscarriage of justice undertakes a heavy burden. An appellate court should not lightly make such a finding and I do not do so. For the foregoing reasons, having given the matter close consideration, I take the view that the applicant "lost a chance fairly open to him of being acquitted", or "a real chance of acquittal": Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 per Fullagar J at 514; Festa v The Queen [2001] HCA 72, 76 ALJR 291 at [115]; TKWJ v The Queen (above) per Gaudron J at [26], per McHugh J at [65]-[66]. In taking that view, I am not making any comment on the complainant's credibility as it appears from the transcript, or the strength of the Crown case.

[1] His Honour cited R v Miletic [1997] 1 VR 593 at 597_._ See also McMahon v Western Australia [2010] WASCA 143 at [24], [67], [68].

[2] His Honour cited R v Birks (1990) 19 NSWLR 677 at 685.

[3] Whether or not that evidence of one incident is correctly described as tendency evidence, or whether it is relevant and admissible on another basis, does not need to be considered. The trial judge said that it "probably" was tendency evidence, and he described it that way when summing-up to the jury.