JD v R [2012] NSWCCA 274 | Case summary

Judgment 1McCLELLAN CJ at CL: The applicant was convicted of three counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 and one count of aggravated sexual intercourse contrary to s 61J(1) of that Act. 2All of the offences were alleged to have been committed against his daughter between January 2002 and May 2006 when she was aged between 5 and 10 years and the applicant was aged between 41 and 46 years. 3No complaint was made by the complainant until September 2010 when she told her mother. By that time the mother and the applicant were involved in divorce proceedings. The complainant was aged about 14 at that time. 4The applicant seeks leave to appeal against his conviction. There is no application for leave to appeal against sentence. 5All of the alleged offences occurred in the family home where the complainant lived with the applicant, her mother and her younger sister. The offences consisted of touching the complainant's vagina and, on one occasion, the insertion by the applicant of his finger into the vagina. On the latter occasion there was also a touching of the breast area. The Crown also led evidence from the complainant of similar acts occurring throughout the period, which was admitted as "context" evidence. 6As is usual in trials for these types of offences, the Crown case depended upon the jury accepting the complainant as truthful and reliable. Her evidence was criticised by the defence because of the delay before she complained and the fact that the complaint ultimately emerged in the course of the divorce proceedings of her parents. During those proceedings issues relating to the past and future contact of the applicant with both of his daughters were disputed. The defence also emphasised that there were discrepancies, which were submitted to be significant, between the evidence of the complainant and the evidence of her mother. It was also submitted to the jury that the evidence that the complainant's performance at school was not obviously diminished during the time of the alleged offences was inconsistent with her being the victim of the assaults that she alleged. 7The case at trial was conducted by defence counsel in a somewhat unusual manner. Although defence counsel cross-examined the complainant to suggest that the events that she related did not happen, and sought to emphasise the relationship between her complaints and the breakdown of the marriage of her parents, he disavowed any suggestion that the defence case was based on the proposition that the complainant had fabricated her evidence. 8The grounds of the appeal are confined, being effectively limited to a submission that the trial miscarried because two documents prepared by the applicant were not in evidence. The grounds of appeal were pleaded as follows:

9MFI 12 is a document prepared by the applicant at the request of his solicitor in the proceedings in the Family Court. It is a record, best described as notes, of events that occurred when he had contact visits with his daughters. 10It seems that there were two documents of this character. One of which was, after initial resistance by the prosecutor, admitted without objection and became Exhibit 8 in the proceedings. When initially objecting to the tender of Exhibit 8 the Crown argued that because fabrication of the relevant events by the complainant had not been suggested by the defence and the notes were self serving, being constructed for the purpose of supporting the applicant in the Family Court proceedings, they should not be admitted into evidence. 11However, the Crown ultimately withdrew its objection to the tender of the notes on the basis that they represented the best evidence of what happened in the events referred to in them, rather than asking the applicant to try to remember what had occurred. 12The use which was attempted to be made of MFI 12 in the trial took an unusual course. The document was shown to the applicant by his counsel in the course of his evidence-in-chief. This was done although no evidence about the state of the witness's memory had been given and there was no request for leave to refresh his memory of the events referred to in it. The transcript reveals that the applicant used his notes to confirm his recollections of events during contact visits. This would have been obvious to the jury. His evidence was that the complainant's conduct towards him deteriorated over the course of the visits, she would turn up in a bad mood, which continued throughout the visit and would become angry if the applicant tried to take the younger sister away for a walk without her. 13During the debate about the admissibility of the document the Crown prosecutor accepted that the witness would be able to use it to refresh his memory, a course that was allowed by the trial judge. 14The Crown prosecutor asked questions of the applicant about the suggested inconsistencies between the applicant's recollections of the contact visit of 22 May 2010 and the record of it in the document. As a consequence during re-examination counsel for the applicant sought to tender MFI 12 arguing that the Crown's questions of the applicant in cross-examination concerning both Exhibit 8 and MFI 12 implied that the notes were not an accurate record of the contact visits and that the tender of MFI 12 was necessary to re-establish the credit of the applicant pursuant to s 108(3) of the Evidence Act 1995. It was also submitted that the notes were capable of rebutting a suggestion of recent invention by the applicant, although it would seem from the transcript that a suggestion to that effect was not actually made. 15The trial judge was not prepared to allow the entire document into evidence. His Honour ruled that parts of the document could be admitted pursuant to s 108(3) of the Evidence Act but that other parts contained "gratuitous prejudicial comments" and, accordingly, were not admissible. The trial judge indicated that he would admit all of the document in so far as it related to the disputed contact visits with the applicant's daughters, excising only those parts that contained the applicant's opinions as to lies told by his daughters. His Honour raised the possibility that excision could be achieved by retyping the document omitting the inadmissible sections. His Honour rejected the suggestion that the inadmissible portions might be blacked out for the reason that it would not cure the prejudice and could create further problems in the jury's mind because they may speculate about the content of the edited portions. 16Counsel for the applicant declined to take the course suggested by his Honour and the trial judge rejected the tender. His Honour ultimately ruled that the probative value of the entire document was substantially outweighed by the danger that there may be unfair prejudice to the Crown by its admission. 17Counsel for the applicant advanced reasons for opposing the preparation of a fresh document deleting the objectionable portions. He submitted that there were time and cost issues in preparing such a document. However, it was not suggested that an edited version of the document could not serve the purpose that counsel had originally sought to achieve by its tender. Of significance for this appeal is that it was not suggested that the document was admissible pursuant to s 66A of the Evidence Act 1995. Section 66A provides that the hearsay rule does not operate to exclude evidence of a previous representation if the representation was contemporaneous about "the person's health, feelings, sensations, intention, knowledge or state of mind." 18I have carefully considered the transcript of the trial. Although the applicant was cross-examined in relation to matters in Exhibit 8 I do not understand there to be any significant cross-examination in respect of matters dealt with in MFI 12. I do not understand there to have been an issue in the trial about the reliability of the applicant's evidence in relation to the contact visits referred to in MFI 12. The cross-examination in relation to MFI 12 was confined to a suggestion that the document, together with Exhibit 8, had been created for the purpose of the Family Court proceedings and the applicant had accordingly not recorded anything in them which was discreditable to him. The Crown prosecutor did not suggest that the documents had been fabricated or that they were a recent invention. 19Before this Court it was submitted that the document should have been admitted for two purposes. It was firstly submitted that the admission of the document into evidence would have been likely to have influenced the jury to more readily accept the applicant's evidence. This was supported before this Court by a submission that the document may have assisted the jury to come to the conclusion that the complainant had concocted her allegation as a result of the bitterness that she had developed due to the manipulation of her by the applicant's wife. This submission was advanced although any suggestion of concoction was expressly abandoned by trial counsel. 20It was further submitted that MFI 12 should have been admitted pursuant to s 66A of the Evidence Act 1995. It is readily understandable that this second asserted basis for admission was not raised at the trial. There was no issue concerning the applicant's health, feelings, sensations, intention, knowledge or state of mind that could have been informed by MFI 12. I therefore reject the applicant's submission that MFI 12 should have been admitted under s 66A. 21With respect to the primary submission of the applicant I am satisfied that it should also be rejected. Having regard to the fact that the applicant was not directly challenged in relation to any matter which could be confirmed by the document it was only of marginal significance, if it had any significance at all. However, his Honour was correct to rule that there were passages in the document that were critical of the complainant and that had not been put to her. If the document was to be admitted at all it required editing. 22Section 108 of the Evidence Act provides for the admission of evidence which would otherwise be excluded by the "credibility rule" if the evidence is adduced in re-examination of a witness. The rule does not apply to evidence of a prior consistent statement of a witness if evidence of a prior inconsistent statement of that witness has been admitted (s 108(3)(a)) or it will be suggested that evidence given by the witness has been fabricated or reconstructed (s 108(3)(b)). Because of the manner in which the applicant was cross-examined, any application to tender the document to re-establish his credit was doomed to fail. The document could not have assisted the jury to assess the applicant's credit. 23In relation to Ground 1(b) of the appeal the applicant submitted that he should be allowed to tender another document that he prepared for his family law solicitors as fresh or new evidence. It consists of three typed pages recording events that allegedly occurred between January and August 2009. The document was contained within a file that was briefed to the applicant's trial counsel and was reviewed by his barrister during the course of the trial. 24The principles in relation to the admission of fresh or new evidence in support of an application that a trial has miscarried are well known. They were discussed by this Court in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 and more recently in Wood v R [2012] NSWCCA 21. 25Although the matter was the subject of written submissions and briefly referred to in oral argument, counsel for the applicant was unable to identify how the document qualified as either new or fresh evidence. Although the document was submitted to be a "powerful tool" in the defence case it is plain that defence counsel did not view it in this manner. The document does record the applicant's sense of alienation from his children and the bitterness that existed between his former wife and himself and his parents. However, so much was plain from his evidence. No injustice was occasioned to the applicant by reason of trial counsel's decision not to seek to use the document. 26Accordingly, no basis has been established for the admission of the document and I would reject it. 27Counsel for the applicant attempted to persuade this Court that by reason of the conduct of the applicant's trial a miscarriage of justice had occurred. Implicit in his submission was an argument that trial counsel had misjudged the position by not directly challenging the complainant's account and suggesting to the jury that she had concocted her allegations. In reality the submission, skilfully advanced, was that the applicant should be allowed a second trial in order that his defence could be constructed on a basis different from that pursued at the original trial. It was in reality a plea for a "second go" and must be rejected. 28It is important to bear in mind the remarks of Gleeson CJ in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [16] - [17], where the Chief Justice said: "...[I]n the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not call, is regarded by an appellate court as having worked to the possible, or even the probable disadvantage of the accused. For a trial to be fair , it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than on the basis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. It is the responsibility of counsel to make tactical decisions, and assess risks." 29As I have made plain I am not persuaded that either of the grounds advanced by the applicant should be upheld and accordingly I am not persuaded that there has been a miscarriage of justice.

JD v R

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