JPM v R

Applicant's legal representation

1. Given that the sole ground here sought to be raised on appeal is identified as an incompetence of counsel ground, it is important to set out the chronology of the applicant's legal representation and instructions given by him.
2. The applicant had two sets of legal representatives. When he was first charged, he retained a friend who is a solicitor (Ms Laura Eljiz) who arranged for a barrister (Mr Glen Porter) to be retained.
3. Ms Eljiz, in her affidavit sworn 12 June 2023, has deposed that she represented the applicant from in or around August 2019 to 7 September 2020 and that Mr Porter was retained as counsel (and undertook the majority of the work in preparation for the trial) but that she and Mr Porter ceased acting for the applicant on 7 September 2020 as the applicant could no longer afford to pay for representation (see at [2]-[6]).
4. The applicant, consistently with this, has deposed that the trial had to be adjourned when he was charged with counts 3 and 4; and that after this Ms Eljiz said she could no longer represent him as he was unable to continue to pay her fees, although Mr Porter would continue to represent him with Legal Aid funding (see his affidavit affirmed 12 December 2022 at [32]).
5. Ms Eljiz went on to depose that Mr Porter had suggested a firm to the applicant (Smythe Wozniak Legal) and that her understanding is that counsel provided that firm with his complete brief and all material in the matter (at [6]).
6. Mr Christopher Wozniak, a partner of Smythe Wozniak Legal, in his affidavit sworn on 22 June 2023, confirmed that his firm had the carriage of the applicant's trial and subsequent sentencing (at [1]). The solicitor ultimately with carriage of the matter at Smythe Wozniak Legal was Mr David Enright. Mr Wozniak confirmed that Mr Porter had retained his brief in relation to the trial but that in late December 2020 he was notified that Mr Porter had taken up a position as Crown Prosecutor. At least by 22 January 2021, Mr David Phillips was briefed to appear at the trial and he had substantive carriage of the matter up until early March 2021.
7. Shortly before the trial was due to commence, Mr Phillips was unable to continue with the brief (due to other ongoing trials) and Mr Jonathan Martin was then briefed. Mr Martin was defence counsel at the trial and for the sentencing hearing.
8. Mr Martin affirmed an affidavit on 12 July 2023 in which he deposes to being instructed by Mr Enright, and at times Mr Wozniak, to appear at the applicant's trial. His account of the timeline of events is that he was first contacted on the afternoon of 4 March 2021 by Mr Phillips about the matter. (At that time the footage of the conversation the applicant had had with police at the scene had not been served, nor had the pre-recorded ERISP or photographs of the scene.) Mr Martin was formally engaged by Smythe Wozniak Legal on 5 March 2021 and he appeared at the trial from 8 March 2021, instructed by Mr Enright.

Applicant's instructions to his initial legal representatives

1. The applicant has deposed (see at [23]ff of his affidavit) that he had several conferences with Ms Eljiz and Mr Porter, referring to six in-person visits between August 2019 and January 2020 from Ms Eljiz at Parklea Correctional Centre (on one of which occasions Mr Porter had accompanied her); and a telephone conference in May 2020 with Ms Eljiz and Mr Porter, as well as additional telephone calls with Ms Eljiz.
2. The applicant has deposed that during those conferences he told Ms Eljiz and Mr Porter several times that he had thought the person in his bed was his wife and that he was touching himself through his pants to get ready for sex with his wife; and that he did not know the complainant was in bed until he saw her when she sat up. The applicant has deposed that it seemed clear to him from his conversations with Ms Eljiz and Mr Porter that this was the defence that would be put to the jury.
3. Annexed to the applicant's affidavit (Annexures A, B and C) are typewritten documents in which the applicant recorded his comments about parts of his police interview and the statements of the complainant and her boyfriend respectively, those being documents sent to him by Ms Eljiz when he was on bail. The applicant has deposed that he commented on them and emailed them to Ms Eljiz in July or August 2020. In evidence in this Court, the applicant said that a friend who was better than him at English had helped him to write this down but confirmed that they were his words (see at T 31.01-12, 17 July 2023; see also his affidavit at [26]).
4. Relevantly, as to Annexure A (which related to the applicant's ERISP), the applicant there recorded that "I honestly thought that the person lying under the covers was my wife so I started undressing while unsuccessfully trying to get an erection (see Q/A 159) because my wife is often playful after a party. Note that I was unable to find my wife anywhere (see Q/A 154) else in the apartment and [the complainant] had never come into my bedroom by herself, or got into my bed in the past. It was therefore reasonable to assume that the person lying under the covers in dim light was my wife".
5. Commenting on the issue as to whether he admitted masturbating in the presence of the two daughters, the applicant said "I did admit to touching myself when I thought my wife would be expecting me to fulfill my marital duties. However, I do not admit to ever trying to remove [the complainant's] clothes because that allegation is false. I immediately stopped my actions as soon as I realised that [the complainant] was the person lying under the covers".
6. Further, the comments included: … I thought that the person lying in bed was my wife and she would have expected sex if I got into bed. I often experience high levels of anxiety when I cannot get an erection because of my drinking (Q 170). My wife is unforgiving. I was not impressed to find [the complainant] in my room and gave her a nasty look when she saw me undressed. She softly said 'stop touching yourself', then turned around and kept texting. Her boyfriend knocked [on] the door so she stood up and left the room in no hurry. It was news to me when my wife told me later that I was doing something with [the complainant]. I did innocently ask 'is there anything wrong?' (Q 142). I could not believe [the complainant's] false accusations and saw no reason for police intervention. In my view, [the complainant] was hurt and disappointed that I did not welcome her new boyfriend with open arms and concocted the story, as a payback, in order to create trouble with my wife.
7. In his comments on the complainant's statement (Annexure B), the applicant does not suggest that his penis was not out (when addressing the complainant's statement that she could see his penis); rather, he says that the lighting was fairly dim at the time and points to this as the reason why the complainant could not describe what his penis looked like "nor tell what hand I was purportedly using to masturbate". (This last comment raises a question as to whether the applicant was maintaining at that stage that he had not masturbated at all but there is no doubt room for ambiguity through translation of his comments, "purportedly" seeming an unlikely word for a person not articulate in English to use.)
8. Annexure C provided comments on the statement by the complainant's boyfriend.
9. Annexure D was a record of instructions referred to by the applicant's counsel as akin to a proof of evidence. Counsel for the applicant relies on Annexures A-D of the applicant's affidavit as the record of the applicant's initial instructions to his legal representatives.
10. Ms Eljiz confirmed (at [7] of her affidavit) that Annexures A-D to the applicant's affidavit were prepared based on the applicant's verbal and written instructions. Annexure D is not dated. The applicant believes it records answers to questions asked by Ms Eljiz verbally when he was still in custody with follow up questions (emboldened in the note) which Ms Eljiz asked on another day (but he cannot now recall exactly when the questions were asked). Logically, this cannot have been after 7 September 2020 (since that is when Ms Eljiz ceased acting for the applicant). Annexure D included the following: I am not guilty to any count on the indictment. The allegations are false. My lawyers advised me previously of the high likelihood that I will be found guilty and the high likelihood of a prison sentence I acknowledge having received that advice however I do not accept it I did not at any time make any attempt to remove [the complainant's] pants or clothes I did not at any time masturbate in the presence of [the complainant] I believed that the person in the bed was my wife I started undressing while unsuccessfully trying to get an erection because my wife is often playful after a party I often experience high levels of anxiety when I cannot get an erection because of my drinking. My wife is unforgiving I did touch myself when I thought my wife would be expecting me fulfill my marital duties
11. None of the above was in answer to an emboldened question. There then followed two emboldened questions: Q What does be mean by unsuccessfully trying to get an erection? And what does he mean exactly about "touching himself"? didn't show his penis, he was touching himself through his clothes - he said even [the complainant] said that she couldn't see anything in her interview Q What does he mean when he says his wife is "unforgiving"? she gets upset if he cant get it up
12. There followed further notes of instructions including [the complainant] had never come into my bedroom by herself [the complainant] had never got into my bed in the past to my own knowledge As soon as I realized that it was [the complainant] lying under the covers I immediately stopped my actions She was in my bed fully dressed and under the covers The bedroom door was unlocked The light in my bedroom was dim … I was not impressed to find [the complainant] in my room I have [sic; gave] her a nasty look when she saw me undressed …
13. The applicant has deposed (at [25]) as to the statement recorded in Annexure D, which comprises Ms Eljiz's notes of her instructions, that he gave the complainant "a nasty look when she saw me undressed", saying that his lawyers must have misunderstood him because he was not undressed and the complainant never saw him undressed; though he there seems to accept that he may have given the complainant a nasty look when she sat up in bed and got out of bed and he realised it was her, not his wife. Of course, the same statement appears in his own comments in Annexure A, although his evidence seems to be that those comments were prepared with help from a friend (see at [26]), so, on the applicant's evidence, it would appear that the same error occurred twice (or else Ms Eljiz's note of her instructions came in part from the comments in Annexure A).

Instructions received by Smythe Wozniak Legal

1. When the matter was transferred to Smythe Wozniak Legal, Ms Eljiz's file was transferred to that firm. Mr Wozniak, in his affidavit sworn 22 June 2023 in the proceeding, has confirmed that Annexures A-D to the applicant's affidavit are on the firm's file (electronically archived) but he is unsure whether they were received by him personally.
2. Mr Wozniak confirmed that on this file there was also the email that is Annexure E to the applicant's affidavit (an email dated 22 January 2021 from Mr Enright to Mr Phillips) (see below). The only additional file note of any instructions, he said, appeared to be a file note (see Annexure CRW2 to his affidavit) that appeared to be of instructions from the applicant.
3. Consistently with this, the applicant has deposed that Mr Enright contacted him by telephone at John Moroney Correctional Centre to tell him that he was going to represent him; and that Mr Enright told him that he had all the paperwork and instructions from Ms Eljiz (at [34]-[35] of his affidavit). (It would seem this is the telephone conference the subject of the email which is Annexure E to the applicant's affidavit - see below.)
4. Mr Enright's evidence is that he does not recall having access to Annexures A-D at any time before or during the trial (T 39, 17 July 2023); that he did not speak to Ms Eljiz; and he did not look at the transferred file (T 41.01-05, 17 July 2023).

Instructions given to the second set of legal representatives

1. The applicant has deposed that he had a couple of brief telephone conversations with Mr Enright but "no conference in which [he] was asked to give extensive instructions", the only significant question that the applicant could remember being as to the amount and kind of alcohol he had to drink at the party (see his affidavit at [36]). Further, the applicant has deposed (at [37]) that he never had a conference with either Mr Phillips or Mr Martin. (At least so far as Mr Martin is concerned, this can only be referring to pre-trial conferences as it is abundantly clear that there were conferences with Mr Martin during the trial.)
2. Mr Enright's file note of instructions is that which was recorded in the email annexed as Annexure E to the applicant's affidavit. That is an email sent on 22 January 2021 from Mr Enright to Mr Phillips, copied, inter alios, to Mr Wozniak. The email has the subject header "File note on legal call to [the applicant] - John Morony CC". The Annexure E email records that there was a telephone call from 12pm to 1pm that day and includes: Need instructions re your upcoming trial on 8 March 2021. Our barrister and I will speak to you again before Court but need to get your version on a few things first. He needs an interpreter for his trial - Spanish interpreter
3. For the applicant, it is noted that there was no interpreter on the phone call recorded in this file note. Mr Enright in his oral evidence accepts that there was no interpreter on the telephone call but said he had no difficulty in communicating with the applicant (and no such difficulty is recorded in his file note) (see T 41-42, 17 July 2023), although quite fairly he accepted that there was a possibility of some degree of confusion during that conference call (see T 43.05-09, 17 July 2023).
4. The instructions there recorded as to the allegation that the applicant masturbated in front of the complainant are as follows: He was very drunk early in the morning. [H]e couldn't find his wife and became concerned, so he went looking for her. [H]e went to the main bedroom first and walked into the en-suite and couldn[']t see her. He then looked over to the bed and saw someone in bed under the blanket, so he walked over, pulled the blanket down and noticed it was [the complainant and the sister] in his bed. He said to [the complainant]: 'why are you here in my bed' She responded: 'what are you doing' He wasn't masturbating, he didn't have his penis out, he wasn't stroking it. His clothes were still on. [The complainant] couldn't have been in the bed longer than 2-3 minutes so she couldn't have already fallen asleep. He saw her with [the sister] not long before, she was taking [the sister] to bed he said but doesn't know why they went to his room. She said she tried to call [her friend, "A"] while this was all happening, why didn't she just get up if I was doing that. [N]othing like that happened (him masturbating in front of her). His version: I went to our bedroom to look for my wife, I thought she was in the bathroom in our room, or in bed. I didn't see my wife in the bathroom in our room. I noticed there was someone in the bed with the blanket on top. I didn't know if it was [the complainant] or [his wife]. I went over to the side of the bed and pulled the blanket down from over the persons head, and noticed it wasn't my wife, it was [the complainant]. I also saw [the sister] in the bed then next to [the complainant]. [The complainant] then woke up and I said to her 'what are you doing here in my bed' because Shes [sic] never in my bed. She didn't respond. I didn't say anything else; I left the room and went to the other bathroom and saw my wife was on the toilet, very drunk. My wife was sitting on the toilet, her pants down. She was very drunk. I said to [his wife] 'I was looking for you' she didn't respond she was too drunk.
5. The file note then records the applicant's instructions as to the incident in the bathroom (inconsistent with the versions given by the complainant and her mother) and about his arrest and ERISP. The email then records matters about the forthcoming trial (the need to organise a Spanish interpreter and to obtain advice as to the ERISP) and the applicant's denial of the allegation that the applicant had breached his bail conditions.
6. The applicant has deposed, in relation to Annexure E, that he did not have any substantial conference with Mr Enright and does not recall ever discussing or being asked what was set out in his email (see his affidavit at [40]). He repeats that he can only recall one or perhaps two telephone conversations with Mr Enright; and says that he (the applicant) did not tell Mr Enright the things in the email (postulating that Mr Enright may have read the material from Ms Eljiz but made some mistakes about it). The applicant says that he did not tell Mr Enright or Ms Eljiz that he had pulled the blanket off the complainant. Pausing there, the text of the Annexure E email on its face suggests that (contrary to the applicant's account) this was indeed a record of instructions taken by Mr Enright over the telephone call with the applicant (and that is consistent with Mr Enright's oral evidence that he had not read Annexures A-D or the transferred file - matters that counsel for the applicant points to as not compliant with the obligation to take a proper proof of evidence). Moreover, this is consistent with Mr Enright's account that he was directed to take a proof of evidence from the applicant by his managing solicitor, Mr Wozniak. The suggestion that the only instructions taken in this (one hour) conference call were as to the amount and kind of alcohol consumed on the day of the offence is not tenable.
7. Mr Enright swore an affidavit on 14 June 2023. He did not have access to his physical file at the time of his affidavit (as he is no longer employed by Smythe Wozniak Legal). Mr Enright did not recall having access to Annexures A-D in the applicant's affidavit (the only record before this Court of the original instructions) but did produce Annexure E (to the applicant's affidavit) and believed it was accurate. Mr Enright did not recall having any face to face or video conferences with the applicant in preparation of the trial (at [10]); he considered that the applicant's affidavit at [39] accurately described the verbal exchange of the telephone call transcribed in his file note (that telephone call seeming to be in response to a request by his managing solicitor to take fresh instructions from the applicant with respect to the brief for the trial) being Annexure E.
8. Mr Enright recalled having a telephone conference with the applicant leading up to the trial for the purpose of obtaining instructions on a pre-trial application to exclude the applicant's electronic record of interview with police, including as to what kinds and quantities of alcohol he had consumed (at [14]). He recalled having a telephone conference with the applicant in preparation of the trial to take instructions but did not recall if Mr Phillips was present. This seems to be the conference the subject of the email at Annexure E to the applicant's affidavit.
9. He also recalled a number of conferences with the applicant during the trial, with Mr Martin and the interpreter, and recalled taking handwritten notes during the conferences but did not have access to those notes.
10. Mr Enright accepted, in cross-examination in this Court, by reference to the previous lawyers' notes (Annexures A-D) that the applicant had given them instructions at least that there was a pattern or an established sexual practice with the applicant's wife (see T 45.44-46.04, 17 July 2023).
11. As to Mr Martin, the applicant has deposed (at [41]) that he never had a conference with Mr Martin who only became his barrister on the first day of the trial as far as he knows (again this is clearly referring to pre-trial conferences only). (Mr Martin accepts that there was no conference with the applicant before 9 March 2021.) The applicant says that the only conversations he had with Mr Martin were the first day of his trial when he came down and told him that he was his barrister and that Mr Enright was running late. The applicant then adds that "[s]ometimes Jonathan Martin would come down to the cells at lunch for 5 minutes for a brief visit, but nothing significant was ever asked in those visits".
12. Mr Martin deposes (at [7]-[8] of his affidavit) that he had access to Annexure E (the email from Mr Enright to Mr Phillips) prior to the commencement of the trial on 8 March 2021 (and had access to Annexures A-D by the afternoon of 17 March 2021, that being the time at which he commenced cross-examination of the prosecution witnesses). Mr Martin gave evidence that he received Annexures A-D as part of the previous brief and says that he did read those documents in preparation for the trial (T 67.19-68.01, 17 July 2023); and he accepted that there were references in those documents that expressed a pre-established sexual practice or routine (see T 68.38-69.20, 17 July 2023).
13. Mr Martin has confirmed that he did not have any conferences (via AVL telephone or in person) with the applicant prior to 8 March 2021, the date the trial was listed for hearing (at [9]) and says that his first conference of any significance with the applicant was in the cells at the Downing Centre at 10.35am on 9 March 2021 (at [10]).
14. Mr Martin was adamant that he had taken a proof of evidence albeit in various notes (T 69.30-43, 17 July 2023) not collated in a single document. Mr Martin also deposed that he had a number of general discussions with the previous barrister, Mr Phillips, both prior to and during the trial, about issues in the case, particularly as to the admissibility of the ERISP and also as to whether an application should be made to sever counts 3 and 4 from counts 1 and 2 (see at [12]-[14], [22] of his affidavit).

Advice given as to the matter

1. Ms Eljiz deposed at [9] that both she and Mr Porter advised the applicant that he would most likely have to give evidence as his version of events contradicted that of the alleged victims (presumably referring to both of the sisters) and was also inconsistent with the accounts of the police.
2. At [41] (the second of the two paragraphs so numbered in his affidavit) the applicant refers to being told by Ms Eljiz and Mr Porter that they were going to try to make sure the ERISP would not go to the jury and they thought they would probably be successful but also they told him that if it was admitted into the trial then he might need to give evidence. The applicant also deposes at [42] that he thought the barrister at trial would defend him by telling the jury that the applicant thought it was his wife in the bed (because that is what he had told Ms Eljiz and Mr Porter).
3. The applicant deposes at [44] that when the matter went to trial Mr Enright came to the cells and asked him if he wanted to give evidence; that he (the applicant) asked whether he should and that he was told that Mr Enright could not advise him and that he had to make the decision (this is consistent with Mr Enright's stated general practice to advise clients as to it being their right and their decision whether to give evidence (see T 47.40-48.03, 17 July 2023) but Mr Enright also maintains that there were a number of discussions from the very start of the trial as to the decision the applicant would make as to giving evidence). The applicant deposes that if he had realised how important it was that he give evidence and explain what he meant in the ERISP he would have done so (at [44]-[45]).
4. Mr Martin has deposed that, at the 9 March conference, he discussed the most pertinent aspects of the applicant's ERISP (at [10]). An interpreter was present. Mr Martin says that he advised that the prospects of an acquittal on all counts were not good or favourable; and that he said: There is a problem even if your interview is excluded because you were heavily intoxicated at the time of the incident and you were still intoxicated during the interview. The prosecution will put to you that you are denying the accusations of sexual touching and commit sexual act because you have no memory of the events in the bedroom and argue this before the jury in their closing address.
5. Mr Martin has deposed that he discussed in detail with the applicant the risks involved in not giving evidence in his trial (see at [11]) saying that if he did not give evidence the jury would be left only with the complainant's evidence and it was likely that if the jury found she was not lying and she was not delusional then they would not have a reasonable doubt as to his guilt.
6. Mr Martin has deposed that on multiple occasions throughout the trial he and Mr Enright had conversations with the applicant in the presence of each other and the Spanish interpreter that they could not tell the applicant whether or not to give evidence and that he must make the decision.
7. Mr Martin says he also discussed the need to sever counts 3 and 4 because if those counts were not severed from counts 1 and 2, the evidence of his phone call to the complainant's mother would be heard by the jury and used by the Crown as evidence of consciousness of guilt (at [12]).
8. Mr Enright swore a second affidavit on 13 July 2023, referring to advice given to the applicant at the beginning of the trial about his decision to give evidence during one of the pre-trial applications to exclude the applicant's ERISP; and said that a Spanish interpreter had assisted during that evidence (at [3]-[4]). He also referred to other conferences with the applicant during the trial about his decision to give evidence (again where the applicant was assisted by the interpreter). Mr Enright recalled that at one of the conferences the applicant said words to the effect (at [8]): I am afraid to give evidence to the jury because the prosecutor might try to trick me like she did when I gave evidence at the start of the trial when there was no jury. [This was a reference to evidence given on the voir dire.]
9. Mr Enright recalled the advice given to the applicant about giving evidence at the trial (during a conversation in which the interpreter was present) was that the court case against him was strong, particularly because his ERISP was played to the jury and did not assist him; and that he should consider giving evidence to explain some of his answers given in his ERISP; but that it was his decision to make and his legal team could not make this decision for him (at [10]).

Course of the trial

1. It is relevant to set out the course of the trial with some precision in order to put into context the conferences that were held with the applicant and the advice given in those conferences.
2. On 8 March 2021, the matter was before Yehia SC DCJ (as her Honour then was). On that occasion, Mr Martin informed her Honour that the trial was not ready to proceed (see T 1.29-35, 8 March 2021); that there were two pre-trial applications - one, an application to exclude the ERISP, and the other an application to sever counts 3 and 4 (the administration of justice counts) from counts 1 and 2; and that Mr Martin had not yet seen the body-worn footage of the applicant's arrest or the video of the ERISP (see T 1.39-43, 8 March 2021). The matter was mentioned again the following day (9 March 2021), which is the date of the first conference that Mr Martin held with the applicant.

9 March 2021

1. At that 9 March 2021 conference, Mr Martin says that the applicant provided instructions as to the factual circumstances and events in relation to counts 1 and 2; and that they then discussed the Crown's offer of pleas of guilty to counts 1 and 2 and rolling up counts 3 and 4 into one count of act with intent to influence a witness (and putting this on a Form 1) (see at [12]-[14] of his affidavit).
2. Annexed to Mr Martin's affidavit (marked A) is a copy of Mr Martin's seven-page handwritten notes of this conference. Those notes include the applicant being asked "is the issue can't agree to indecent assault because you can't remember" to which he notes the answer as being "No No" and that the applicant said that "… I went in looking for my wife in the bedroom. Instead of my wife her under the blankets was [the complainant]. I did not do anything. Also if she is alleging she had her phone in hand in bedroom if she is alleging why didn't she take photo" (to which Mr Martin's note indicates he pointed out that on the complainant's evidence what she was doing was texting "Help!"). Mr Martin's notes record that he pressed whether it was that the applicant did remember enough that it was mistaken identity and he thought it was his wife under the blankets or that he could not accept the complainant's version because he did not remember.
3. Mr Martin records the applicant's response as being "[i]n my memories I didn't do it. She said I was mast[urbating]. I went in there looking … She had no right or permission [to be in my bed]…" and again referred to his wife. Mr Martin asked was it that he was just looking for his wife only or that he thought it was his wife only under the blankets and he was masturbating. (It is evident from this that Mr Martin was endeavouring to understand - and test - his client's instructions as to the critical events in relation to count 2). Mr Martin's notes record that the applicant said "I would say I was expecting the person under the blankets to be my wife. I have never tried to masturbate in front of [the complainant]"; "my intention not to masturbate in front of [the complainant]".
4. Questioned again as to "was it to mast[urbate] thinking wife under covers?" to which the answer was "I did not go there with intention"; "party and alcohol, we (he and wife) would normally have sex. I did not masturbate".
5. When asked if he remembered the whole time in the bedroom or did not remember all of it and cannot agree he masturbated, the answer was "What I remember something so quick I don't think it lasted in 30 sec[onds]; I don't think all the things alleged".
6. The note then records a third option of accepting a plea of convenience and the response was that he was not going to plead guilty ("never").
7. The conference notes then continue to deal with the applicant's complaints about the complainant; issues going to authority; history of any arguments or domestic violence; and the offence of perverting the course of justice.
8. Mr Martin has deposed that he explained that he and Mr Enright gave the applicant time to consider the offer and then visited him again with the interpreter at 11.30am when the applicant instructed them to reject the Crown's offer (see Annexure B).

10 March 2021 - commencement of voir dire

1. On 10 March 2021, the matter came before Zahra SC DCJ. The pre-trial issues were raised; the indictment presented and the applicant was arraigned before his Honour. The applicant pleaded not guilty to each charge.
2. The trial judge then commenced a hearing on the voir dire as to the application to exclude the ERISP. Sergeant Drummond and Sergeant Grassi gave evidence and then Detective Senior Constable Zoras' evidence commenced with the playing of the ERISP.

11 March 2021

1. The viewing of the ERISP continued on 11 March 2021 and Detective Senior Constable Zoras was cross-examined. There were then some submissions made in relation to the application to sever counts 3 and 4 (as the expert witness to be called for the defence on the application to exclude the ERISP, Professor Weatherby, was not available that day to give evidence). Although the transcript records the matter being adjourned then to 12 March 2021, the next day on which there was transcript of the trial was Monday 15 March 2021 (see T 94.36, 11 March 2021; T 95, 15 March 2021).
2. Mr Martin has deposed at [16] that on 11 March 2021, the applicant raised with him for the first time (in a conference from the dock) that he was not permitted by investigating police to make a phone call to seek legal advice before his ERISP (see Annexure C to Mr Martin's affidavit). This conference was in the presence of Mr Enright and a Spanish interpreter.

15 March 2021

1. When the hearing of the pre-trial applications resumed on 15 March 2021, submissions on the severance application continued before Professor Weatherby, an expert pharmacologist, was called. Professor Weatherby gave evidence as to the effects of sustained alcohol intake and memory. Professor Weatherby's report dated 18 February 2021 was tendered as VD1. On the voir dire, Professor Weatherby gave evidence in essence as to the possible effect of alcohol consumption on memory loss (anterograde amnesia) (see T 103.40-104.16, 15 March 2021). The effect of Professor Weatherby's evidence was that: loss of memory caused by intoxication can occur from low levels of alcohol ingestion; and, based on the applicant's self-report of the volume of alcohol consumed, the applicant may have been suffering anterograde amnesia due to alcohol intoxication at the time of the interview. After Professor Weatherby had reviewed the video footage, this conclusion was further based on the applicant not being able to remember certain things and appearing confused during the ERISP (see, for example, T 112.37ff, 15 March 2021).
2. There followed submissions on the application to exclude the ERISP. In essence the challenge to its admissibility (invoking ss 88, 90 and 138 of the Evidence Act 1995 (NSW) (Evidence Act)) was based on: alleged contraventions of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) in not complying with provisions relating to vulnerable suspects (in that the applicant expressed to interviewing police officers that he wished to exercise various rights including the right to silence and requiring an interpreter); and the unfairness of the interviewing due to the applicant's level of intoxication and inability to understand and properly to express himself in English.
3. The trial judge (at T 140.17-21, 15 March 2021) pointed to the difficulty as to the lack of evidence going to the relevant issues on the exclusion of the ERISP application as to whether the applicant was denied a lawyer or denied an opportunity to sober up; following which defence counsel (Mr Martin) suggested that instructions might be necessary as to whether the applicant wished to give evidence on the application (at 141.10-13, 15 March 2021). There was then a luncheon adjournment taken.
4. Mr Martin deposes at [17] to a conference on 15 March 2021 in the Downing Centre cells with the applicant, attended by Mr Enright and a Spanish interpreter, which he said dealt overwhelmingly with the ERISP and instructions on what evidence the applicant would give should he choose to do so regarding what he was in fact saying in that interview and why he gave certain answers. This conference clearly occurred during the luncheon adjournment. Mr Martin says that the applicant again raised the issue about not being allowed a phone call to seek legal advice prior to his ERISP; and Mr Martin deposes at [20] that Mr Enright told the applicant that he did not have to give evidence (and that a negative inference could not be drawn from not giving evidence); that they could not tell him whether to give evidence or not but that he suggested the applicant did give evidence, although he had told him the risks of that. Mr Martin deposes that Mr Enright said that the only way for the applicant to explain that he needed an interpreter would be if he gave evidence from the witness box (see p 9 Annexure C to Mr Martin's affidavit).
5. Mr Martin's notes of the 15 March 2021 conference (some of which are not in Mr Martin's handwriting) suggest that the focus of the discussion on that occasion was as to whether to give evidence in order to exclude the ERISP but Mr Martin's oral evidence was that he also had in mind the question whether the applicant would give evidence in the trial itself.
6. When the matter resumed after the luncheon adjournment, Mr Martin made an application (not opposed by the Crown) to re-open the defence case to adduce evidence from the applicant on the voir dire. The applicant then proceeded to give evidence (with the assistance of an interpreter) and was cross-examined.
7. The applicant gave evidence on the voir dire to the effect that: he answered "yes" to pre-interview questions as an acknowledgment of what was said to him, rather than an acceptance of the contents of the questions (T 144.04-12, 15 March 2021); he did not remember reading out part of the Part 9 LEPRA rights; he signed the rights acknowledgment as Sergeant Grassi told him it was routine (T 147.01-15, 15 March 2021); and he had difficulties speaking English, having not learned to speak English and relying on his wife who did speak English (see T 151.09-15, 15 March 2021).
8. Submissions were made as to the pre-trial applications on 15 and 16 March 2021. Professor Weatherby was recalled (after having had an opportunity to view the video footage of the ERISP and of the arrest) and gave some evidence as to his observations having viewed the videos of the interviews with the police (see T 172ff, 16 March 2021).

16 March 2021

1. His Honour ruled on 16 March 2021 on the application to sever counts 3 and 4 and the application in relation to the said duplicity of those counts, declining both applications (T 169.15-25, 16 March 2021). His Honour also indicated that he would allow the redacted ERISP into evidence (excluding portions that his Honour considered it possible were reconstructed memory) (T 175.37-46, 16 March 2021). There is no contention of error as to those decisions. However, the applicant submits that the contents of the ERISP and the circumstances of the applicant's participation in the interview are relevant to the sole appeal ground here raised.
2. Mr Martin has deposed (at [22]) that, after the applicant gave evidence on the application to exclude the ERISP and the trial judge decided partially to admit the ERISP into evidence, consideration was given to seeking to appeal the admission of the ERISP but that, after advice on this issue, Mr Wozniak instructed him not to file or pursue a s 5F appeal under the Criminal Appeal Act. As noted, on the present application, counsel for the applicant submitted more than once that the trial judge was correct in his dismissal of the pre-trial applications and that there is no challenge to those decisions.

17 March 2021

1. The trial proper, so to speak, commenced on 17 March 2021. The applicant was formally indicted and arraigned in the presence of the jury (pleading not guilty to each charge) and the jury was empanelled on that date.

Crown Opening (T 13.33ff, 17 March 2021)

1. The Crown opened the case against the applicant with the complainant's account given in her emergency 000 call to the police: "My stepdad, he was drinking, and he was masturbating next to me, and he'd gone into the bathroom with my mum. He doesn't want to let me go out" (T 13.33, 17 March 2021); this being the conduct relied on for the count 2 offence.
2. The prosecutor then described the family relationships and the night of the offence, before recounting the allegation in count 2, and then the allegation in count 1 (the act of trying to pull down the complainant's pants) (see T 14.15ff, 17 March 2021). After explaining the attempt by the complainant to text and call her friend, "A", and how the complainant left the room when her boyfriend knocked on the door, the Crown explained the making of the contemporaneous complaints to the complainant's boyfriend and mother; and the altercation in the bathroom before the making of the 000 call, attendance by the police and arrest of the applicant.
3. The Crown then addressed the elements of the offences and the issues the Crown needed to prove in relation to counts 1 and 2 before addressing counts 3 and 4. In the course of addressing the elements of the offence in count 2, the Crown said (at T 16.33-40, 17 March 2021): The second [element] is that this act of masturbation was carried out towards [the complainant]. Now, I anticipate she will give evidence that the accused was facing her with his body and that he was only centimetres away from her. If you're satisfied of that, then you can be satisfied the act was directed towards her. Again, you also need to be satisfied that this act was intentional and the Crown will be submitting something as specific as masturbating while facing her could not have been anything but deliberate, it could not have been accidental or careless.
4. The Crown suggested that the statements the subject of counts 3 and 4 were capable of being of use to help the jury determine whether counts 1 and 2 occurred (T.17.45ff, 17 March 2021).
5. In relation to the applicant's ERISP, the Crown said (at 18.32-37, 17 March 2021): …and finally you'll hear from police officers involved in this investigation including the detective who is the lead officer in this case, who conducted and recorded an interview with the accused once he was arrested back in May 2019; you'll watch this interview and you will note that during the course of this interview the accused admits to some of this conduct from the allegations from May 2019.

Defence Opening (T 21; 17 March 2021)

1. The applicant's counsel in opening described the central issue as being proof beyond a reasonable doubt and emphasised the burden on the Crown. The applicant's counsel noted the agreed facts (which went to the family relationships) (T 21.22, 17 March 2021) and raised the question whether the complainant was honest, truthful, accurate or reliable (T 21.38ff, 17 March 2021). There was no reference to any case of mistaken identity in relation to count 2.
2. In opening, the applicant's counsel said this as to the applicant's ERISP (21.30, 17 March 2021): One of the most important things that you must remember in this trial and keep in mind all through the trial is that [the accused] does not have to prove what he says happened in the counts before the Court. He does not have to prove anything in this trial. Do not lose sight of that fact as members of the jury. The fact that [he] has stated in his interview that things happened does not mean that the onus shifts to him to prove any of the things that he describes in his interview to any standard.

Complainant's evidence

1. The complainant commenced her evidence at 2.32pm on 17 March 2021.
2. As noted above, the complainant's evidence as to the making of complaints to her boyfriend and her mother about the applicant's conduct was corroborated by those witnesses; as was her evidence that the applicant had tried to prevent her and her mother from leaving the bathroom. Apart from the 000 call, there was a recording from one of the police officer's bodycam video in which the complainant again made the allegation that the applicant was masturbating in front of her and trying to get her pants off. The Crown therefore says that there were immediate and consistent complaints made by the complainant to her mother, her boyfriend, the 000 operator and police.
3. There was in evidence before the jury the complainant's written statement to police on 26 May 2019 (marked as MFI 4) and, as noted above, a transcript of her recorded interview with police on the same day. The recording was played to the jury and the transcript of the interview was marked as MFI 3.
4. Following the playing of the recorded interview, the complainant was asked further questions in chief by the Crown. Also tendered was a bundle of photographs of the apartment and bedrooms taken by police (see Tab 7 to Ex A).
5. Cross-examination of the complainant commenced after the morning tea adjournment on 18 March 2021 (see from T 41.09, 18 March 2021). The cross-examination explored: whether the applicant was in a position of authority with regard to the complainant (her evidence being that the applicant did not exercise any authority over her at all (T 42.5, 18 March 2021); and the complainant agreeing with the proposition that it was accurate to describe the applicant as "merely [her] mother's husband who lived with [her] in the same apartment" (T 42.7-10, 18 March 2021)); the position of the girls in the applicant's bedroom (the complainant could not remember whether there were blankets on top of both girls (T 53.29-31, 18 March 2021)), the available lighting (the complainant said there was a lamp in the bedroom giving off sufficient light to see (T 53.33-42, 18 March 2021)); whether the complainant had difficulties with her vision and whether she was wearing glasses (T 53.44-54.38, 18 March 2021); differences in the complaints (for example, the complainant not mentioning the applicant trying to pull down her pants in the 000 call (T 59.07-29, 18 March 2021)); whether she could describe anything about the applicant's penis and how it appeared (the complainant said "No, I didn't see it clearly, no" (T 55.8, 18 March 2021)); and as to the sleeping arrangements in her house (the complainant agreeing that she did not usually sleep in her parents' bed (T 64.35, 18 March 2021)). The complainant was also cross-examined about her version of what had happened in the bedroom and in the bathroom.
6. The applicant notes that defence counsel did not ask the complainant any questions relating to the possibility of mistaken identity in relation to count 2. In oral submissions the only questions it was suggested that could possibly have been put were as to the sleeping arrangements. (Pausing here, it is difficult to see what more could have been elicited; the suggested distinction between the applicant accepting that she did not usually sleep in the bed and the position had it been elicited that she never slept in the bed is tenuous in the extreme.)

Other witnesses

1. Evidence was then given by the complainant's boyfriend on 18 March 2021 and the complainant's mother on 22 March 2021, followed by the police witnesses.
2. Relevantly, the complainant's boyfriend gave evidence that he saw the applicant go into the main bedroom before 3.25am (T 77.50, 18 March 2021) and saw her come out crying and saying that the applicant "was masturbating in front of me" (T 79.10-13, 79.23-24, 18 March 2021). He recalled the complainant had told him that she woke up when the applicant was trying to pull down her pants (T 79.37-39, 18 March 2021). He gave evidence that he asked the complainant why she did not cry out and she had told him "I was asleep with my sister. I just woke up because he was trying to pull down my pants and he was masturbating" (T 79.24, 89.46-90.02, 18 March 2021).
3. The complainant's boyfriend gave evidence that he observed the applicant leaving the main bedroom and unlocking the bathroom door with his thumb nail before going in; and that he then saw the complainant's mother asleep or drunk on the toilet (T 84.10-22, 18 March 2021). He gave evidence that he heard the complainant telling her mother that the applicant was masturbating in front of her and her sister (T 84.40-43, 18 March 2021). He said the applicant went back into the bathroom and the complainant's boyfriend gave evidence that the applicant placed his foot between the door and the doorframe to prevent the door from closing (T 84.48-85.11, 18 March 2021). He heard the complainant's mother asking the applicant why he had been masturbating in front of the complainant; and heard the applicant say, "I didn't do anything wrong" and the complainant yelling and crying, saying, "You were masturbating in front of me" (T 85.19-27, 18 March 2021).
4. The complainant's mother gave evidence, including that she had consumed a large amount of alcohol on the night of the alleged offences (T 100.18-19, 22 March 2021); that she had been woken up in the bathroom by the complainant who was crying, saying, "Mum, wake up. [The applicant] - [the applicant]'s masturbating" (T 100.42-45, 22 March 2021). The complainant's mother recalled the complainant telling her that the applicant had also tried to pull her pants down (T 101.15-17, 101.23-27, 22 March 2021); and said the applicant had come into the bathroom and she had asked him why he had done the acts the complainant had alleged (T 100.47-49, 22 March 2021). Her evidence was that the applicant had not answered her (T 101.03, 22 March 2021). She gave evidence of seeing the complainant call the police from the bathroom (T 101.49-102.05, 22 March 2021).
5. The complainant's mother was cross-examined briefly. She was asked some questions of her memory of what occurred in the bathroom when the complainant was making the 000 call and the remainder of the cross-examination related to Family Court proceedings which defence counsel suggested were relevant to counts 3 and 4 (T 117.16-49, 22 March 2021). The applicant here complains that no evidence was attempted to be led through the cross-examination of the complaint's mother as to the "established sexual practice" of the couple, noting that she was the only other person capable of giving that evidence other than the applicant. I return to this issue in due course.
6. The person who lived with the applicant after the applicant was released on bail in relation to counts 1 and 2 (in whose name the mobile phone used to make the phone calls that supported counts 3 and 4 was registered) gave evidence this was not his phone and that he had left bills and personal correspondence lying around his house which could have been used to register a mobile phone in his name. The Crown submitted on closing that the applicant used these pieces of correspondence dishonestly to register the phone in that person's name and to make the phone calls to the complainant's mother.
7. Senior Constable Bimarsh Khanal confirmed that he was the police officer wearing the body worn camera at the complainant's residence (T 127.27-29, 22 March 2021). The police footage was tendered as Ex C, its transcript marked as MFI 10. He gave evidence that the message broadcast over police system in relation to the offence was, "Woke up to step dad masturbating over her and her sister while they were asleep. POI [the applicant], […], MPI, MWS, POI currently in bathroom with informant's mother verbally arguing…" (T 34.22-24, 22 March 2021).
8. Detective Senior Constable Zoras interviewed the applicant at Burwood police station on his arrest for counts 1 and 2. He concluded the applicant had no issues speaking English when interviewed (T 149.28-39, 22 March 2021) despite he having to clarify or follow up with several questions to the applicant (see, for example, T 187.25-34, 23 March 2021).
9. Sergeant Grassi gave evidence about the process by which the applicant's intoxication and ability to understand English were assessed (T 212-214, 23 March 2021).
10. The Crown case closed at about 4pm on 23 March 2021.

Conference prior to close of Crown case

1. Mr Martin has deposed (at [25]) that at 10.30am on 23 March 2021 (i.e., before the close of the Crown case), he and Mr Enright had a conversation with the applicant, with an interpreter present, in which Mr Enright said to the applicant that the ERISP was bad; that some answers were okay; some were responsive; and that if he chose not to give evidence the judge would direct the jury that no adverse inference could be drawn. Mr Martin has deposed that, after further discussion in which the applicant said he would like to give an explanation to the jury, Mr Enright said that whatever explanation he gave the Crown would "get a chance to have a go at you, for example they will put to you that you found [the complainant] sexually attractive and that you were in a position of authority over her and that you were drunk, that you lost your inhibition and masturbated and touched her with the intention to have sex with her" (see at [26], and the notes of this conference at Annexure E to Mr Martin's affidavit).
2. Mr Martin has further deposed (at [27]-[29]) that following the close of the Crown case he and Mr Enright had a conference with the applicant in the court room dock, with the assistance of a Spanish interpreter. Mr Martin deposes that he advised the applicant of the dangers of not giving evidence and the risks involved in giving evidence; and that he explained that his cross-examination of the complainant was testing or challenging her evidence but that the only thing that could contradict her evidence was evidence from him from the witness box because the only evidence the jury had from him at that point was the ERISP. Mr Martin said that he gave the analogy of a soccer match, in which he explained that there were problems in that there were some admissions to some of the conduct which assisted the Crown; and he said that he emphasised that the only way the jury could consider his full version of events was for him to give evidence from the witness box.
3. Mr Martin deposes that the applicant said in response that, now the jury had seen the complainant being questioned by Mr Martin, he was happy that they had seen she had not told the truth and he did not want to give evidence. Mr Enright's evidence before this Court was that the applicant had the same view during the course of the trial after he had given evidence at the pre-trial application that he did not want to give evidence as he was afraid of being tricked (see T 49.44-50, 17 July 2023).
4. The applicant then signed a formal statement confirming his instructions that he did not want to give evidence (Annexure F to Mr Martin's affidavit). In accordance with those instructions, the applicant was not called to give evidence to explain the admissions in the record of interview, nor the establishment of a sexual practice between him and his wife. (Mr Martin disputes that he did not put the applicant's instructions that this was a case of mistaken identity (see T 69.50-70.04, 17 July 2023)).

Crown closing

1. The Crown case in relation to counts 1 and 2 was that the applicant attempted to pull the complainant's pants down while masturbating towards her. The Crown in closing submissions addressed the following: the evidence of the complainant's immediate complaint to her boyfriend, mother and police; the consistency between those accounts and the complainant crying and appearing upset; general supportive evidence such as lighting in the bedroom and the bedroom layout; the lack of consent and the applicant's knowledge of this; that the applicant's act of masturbation was inherently a sexual act directed toward the complainant (as the applicant was positioned toward the complainant and within centimetres of her (T 229.42-47, 24 March 2021)); and the applicant's admissions in the ERISP.
2. The Crown emphasised the applicant's statement that he was about one metre away from the complainant and admitted to masturbating with his penis out, and that the applicant had heard the complainant say "no" and "stop" while he was masturbating (T 234.44-50, 24 March 2021). Further, the Crown submitted that the applicant's cavilling with questions in the ERISP, where he said, "I was masturbating next to, not in front of my daughters" and "well they were asleep at the time", was evidence of him minimising the seriousness of his conduct, which constituted an admission to masturbating with the knowledge that the complainant was in the bed (T 235.08-11, 24 March 2021).
3. The Crown also addressed the question of authority, submitted that the complainant was under the applicant's authority, as she lived in the same house as him and was his stepdaughter. The Crown emphasised that the applicant paying for the complainant's living expenses, giving her lifts to soccer practice and his expressions of concern about focussing on studies rather than dating, showed such authority (T 239-240, 24 March 2021). (The applicant notes that the trial judge raised concerns with the state of the Crown's evidence as to authority at T 275.27-39, 24 March 2021.)
4. In relation to the issue of a possible mistaken identity submission being made (although it had not yet been raised by defence counsel in opening or whilst questioning witnesses) the Crown submitted there was no innocent explanation for the applicant's conduct as it was not an accident, did not occur in a dark room and could not be a case of mistaken identity (T 235.20-22, 24 March 2021).
5. The Crown also relied on post offence conduct of the applicant as evidence of guilt (counts 3-4). The evidence of these acts was adduced in cross-examination by the Crown of the complainant's mother pursuant to s 38 of the Evidence Act. The complainant's mother was cross-examined about her police statement concerning count 3 (from T 113.18, 22 March 2021): Q. He [the applicant] said, "I want your help. [The complainant] should not go to the hearing because if she does not turn up to the hearing the case will be dropped." Is that what he said? A. INTERPRETER: Yes. … Q. And you said at paragraph 48, "He said, 'I have money to pay the lawyers and you don't have money to pay the lawyers. The lawyers will finalise the case'." Is that what he said? A. INTERPRETER: Correct. and in count 4 (at T 113.36-39, 22 March 2021): Q. Then at paragraph 47 you said that he said, "Don't go to the police. Don't give them a statement. If you don't give them a statement and [the complainant] does not turn up to court this thing will finish." Is that what he said? A. INTERPRETER: Correct.
6. A direction was given by the trial judge to the jury, indicating (in short) that if the jury were satisfied beyond reasonable doubt that the words were spoken and not for a reason other than to avoid being implicated for counts 1 and 2, then it could be considered in proof of counts 1 and 2. No complaint is made on appeal about the admissibility of this evidence or the directions concerning such evidence.
7. The applicant says that the Crown closing focussed on what at that point had been the defence case, namely that the complainant was not a reliable witness. Although it is accepted that the Crown closing in part attempted to foreshadow an argument being put that this was a case of mistaken identity, the applicant says that there were no questions asked by defence counsel about this (see his written submissions at [37]).

Defence closing address

1. The applicant says (at [91] of his submissions) that the defence closing was punctuated by complaints from the Crown and the trial judge as to evidentiary matters raised, forcing defence counsel to correct or restate several submissions made to the jury. However, it does not appear that this is raised as going to the alleged incompetence of counsel.
2. The applicant says that defence counsel's focus was on the unreliability or improbability of the complainant's account as to counts 1 and 2, the following matters being raised in this context (at [92]ff of his submissions).
3. First, apparent discrepancies between accounts given by the complainant, for example that she did not tell the 000 operator that the applicant had tried to pull her pants down; and that the argument between the complainant, her mother and the applicant in the bathroom was about the act of masturbation, rather than pulling her pants down (at T 248.12-20, 24 March 2021). Further, defence counsel sought to attack the complainant's account given in the police interview due to the use of leading questions by the interviewer. (It is noted that this submission attracted criticism from the trial judge at T 265.40 and was eventually corrected in front of the jury at T 270.23.)
4. Second, that the complainant and her mother's evidence could not be seen as accurate or reliable on the basis almost two years had passed since the alleged offences were committed where no contemporaneous recording had been made. This submission was corrected by defence counsel in front of the jury following criticism by the trial judge as no inconsistencies were put to either witness and it was known by the legal representatives and his Honour that both witnesses had provided police statements in that time (at T 251.03-21, 24 March 2021).
5. Third, defence counsel suggested the complainant's account might be affected by her eyesight difficulties, evidenced by the complainant's use of glasses. This submission attracted criticism from the trial judge at T 265.03-10 and was corrected in front of the jury at T 270.46.
6. Fourth, the apparent inconsistency between the complainant's lack of ability to describe the applicant's penis and her account that the applicant was very close to her when she woke up (T 256.29ff, 24 March 2021). This submission was partially corrected by defence counsel following criticism by the trial judge (at T 265.21, 24 March 2021).
7. Fifth, the complainant's seemingly different accounts as to where on her pants the applicant grabbed and pulled (at T 258.15, 24 March 2021).
8. Sixth, the lack of evidence supporting the aggravating feature of authority in relation to counts 1 and 2. Defence counsel suggested the complainant had a significant degree of autonomy with regards to the applicant; instead, restrictions were placed on the complainant by her mother (at T 261.18, 24 March 2021). Later in the closing address, defence counsel drew a comparison between the complainant and applicant to a teacher and student relationship (T 263.48-264.20, 24 March 2021), a submission that attracted judicial criticism (at T 269.01-09, 24 March 2021) following which the submission was withdrawn by defence counsel (at T 270.35, 24 March 2021).
9. In relation to the possibility of mistaken identity in relation to count 2, the following was said by defence counsel (at T 260.01, 24 March 2021): What I'll do is return to. I've already dealt in part with the record of interview [the applicant] and I did highlight some key reasons why you should be wary about just giving weight to every single part of it where clearly there are difficulties faced by the accused in the absence of an interpreter and still affected by alcohol, and I've outlined those to you in relation to that. The point I really wish to make and the Crown's addressed it in detail but there's a key question that wasn't asked by the detectives at the time of the interview, and was never asked, and that's "before she woke up or when you were masturbating did you know who did you think it was in the bed" and that's important because his evidence was that that person was under the covers. So, you had him and a lot's been made of the lighting, but still the issue of the bed clothes being on and over the top of the person still remains. So, what he's not asked is "who did you think it was under the covers", so we have him probably in a state of intoxication by all accounts, and he's in his bedroom and he's next to the spot that he usually sleeps which is next to the spot that his wife usually sleeps. [The complainant's boyfriend] was taken to the portion of evidence about what occurred in the bathroom. It was clear that the accused was quite observed [sic, absorbed] in a conversation with [the boyfriend] and involving the aspects of the army service and what you have from the Complainant is that it was only a very short period of time that [the sister], her younger sister, was only on the balcony for a very short time. Not even a minute was the evidence of the complainant was. So, all of it points to the fact that the Crown have not negated as a reasonable possibility, they haven't negated this possibility, which is reasonable, that the accused didn't know that the person in the bed under the covers was [the complainant] until she woke up and told him to stop. Now if that's the case he can't be deliberately directing his actions towards the complainant, and that's a key and central aspect of this case. And it's not enough that you suspect something, it's not enough that you believe or have grave suspicions about it, you have to be satisfied that he knew and deliberately directed this conduct to someone he knew was [the complainant] at the time. The problem with the ERISP is he's asked such a general question, he already has the benefit of hindsight, so he's already answering with the benefit of hindsight. Clearly by the time he knows because it's been revealed to him that it's the complainant. So, what the ERISP doesn't establish is that he knows without the benefit of hindsight that it's the complainant, and that's a reason why you wouldn't be satisfied that the charges or the counts 1 and 2 are not made out beyond a reasonable doubt. And that's why I ask you to exercise some caution about an interview where he's even looking at these questions the Crown haven't exploited [sic, excluded] the possibility that he's guessing at some of these answers, [he's] re-constructing it based on what the police have told him. He's trying to put two and two together where, or offer some explanation, racking his brain to try and remember what happened, and none of that should satisfy you that he knows exactly where his wife is, that that is not clear from his evidence in his ERISP. And most particularly, being the ultimate issue is does he know that it's the complainant in the bed.
10. The applicant says that the above submission, though touching upon the mistaken identity defence, was made without having established or explored any evidentiary basis for this.
11. No little emphasis was placed by counsel for the applicant on the fact that during and after the defence closing the trial judge expressed what counsel described as "serious misgivings" about the conduct of the defence case, including asking defence counsel what the defence case was in relation to the act of masturbation (i.e., was the act denied despite the admission in the ERISP) (see at [38] of the applicant's written submissions).
12. After the jury left the following exchange occurred (at T 283.17, 24 March 2021): HIS HONOUR: Now, I'd raised this with you a little while ago, that I would wait to hear your closing submissions, because there is an equivalent paragraph at p 8, heading number 2 [being a reference to his Honour's proposed written directions] "[the complainant] did not consent to a sexual act towards her", and again, that's that same paragraph now. Clearly, that's not your case, however, I'm struggling to find out what your case is. Is your case that it did not happen as she could not see without her glasses, or that it did not happen; she just woke up and would have not known what was happening, or if it did happen, it was not towards the complainant? I still don't understand. DEFENCE: Yes. Not towards the complainant. HIS HONOUR: So, if I were to put here, in this case, it's the accused's case that if masturbation occurred, that it was not towards the complainant? DEFENCE: Yes. HIS HONOUR: Does that sufficiently describe your case, or are you also saying - is your case the masturbation did not happen, but if it did happen, it was not towards, or - is that what you're saying? DEFENCE: Not quite. HIS HONOUR: Is part or your case that they could not be satisfied-- DEFENCE: I think it was the former, that the masturbation wasn't directed towards - HIS HONOUR: I'm sorry? DEFENCE: It's the former, that the masturbation wasn't directed towards-- HIS HONOUR: So, is it part of your case that it did not happen, and that - or should I put is the case for the accused that there was no masturbation, but if there was, it was not directed, or I'm saying that it's not the accused's case that it did not happen? I need to make it clear. DEFENCE: Yes, I understand. HIS HONOUR: So, do I tell the jury that it's not your case, that masturbation did not occur? DEFENCE: That's it. It's not our case that masturbation did not occur. Phrasing it a different way, that it likely occurred, but was not directed towards, or intended - yes, it was not directed towards the Complainant. HIS HONOUR: So, what are you asking me to do? What are you asking me to put here? It's the case of the accused that they could not be satisfied that he was masturbating, but if they are satisfied that he was masturbating, that it was not towards the Complainant? DEFENCE: Just one moment, your Honour. HIS HONOUR: Or do I tell the jury that it's not the case of the accused that it didn't occur; that masturbation occurred, but it was not towards-- DEFENCE: That's it, your Honour. HIS HONOUR: Is that your case? DEFENCE: That's it. HIS HONOUR: So, I can safely say that it's not the case of the accused that the accused was not masturbating; the case of the accused is that the act of masturbation was not towards the Complainant? DEFENCE: Yes, your Honour. HIS HONOUR: Yes…
13. The following morning there was this further exchange (at T 286ff, 25 March 2021): HIS HONOUR: There was one part that I raised yesterday, [defence counsel], asking you, in relation to p 8, under the heading "2. [the complainant] did not consent to the sexual act". There is now a reference to what I understand you said was your case. Do you want to say anything further? DEFENCE: No, your Honour. I've read that amended paragraph and consulted with my instructing solicitor. It's an accurate and correct summation of the defence case. HIS HONOUR: Yes. I must say, I'm still struggling with understanding what the accused's case is, and I'm assisted, obviously, by your confirmation that that paragraph at least is a starting point. Your closing submissions were quite a struggle, and, again, I've attempted to do my best in trying to put your closing address to the jury; for example, your submissions, of some length, that the evidence of the complainant was that she was not able to describe the accused's penis, I'm struggling to understand how that fits into your case, that you don't challenge that the accused was masturbating, but, yet, at the same time, you argue that her failure to see or describe the accused's penis is a matter that affects her reliability, the reliability of her evidence. Again, I've struggled to put some sense to the jury. Are you able to enlighten me? You, most significantly, challenge her inability to see him masturbating or seeing his penis, but, at the same time, you don't challenge that he was masturbating, in that position. DEFENCE: Is your Honour asking how that relates to the reliability of the complainant? HIS HONOUR: I just want to make sure that your case is not that it didn't happen. DEFENCE: No. It's that it wasn't directed at her, because he didn't know it was her under the bedclothes; there was an assumption that it was his wife. HIS HONOUR: You're submitting that her evidence is unreliable because she did not see his penis, that she saw him masturbating, or there's no issue with the masturbating? DEFENCE: Yes. She's clearly got a limited memory and the jury are being asked to rely on her memory that he attempted to pull her pants down. HIS HONOUR: I'm struggling. I'll do my best. If you seek redirections, I'll hear you but it was a struggle. I don't know whether you've had an opportunity to read your own submissions or your closing address, [defence counsel], but my associate sent me a draft at 11:40pm last night of certain parts, in summary. My laptop will show, at 2am this morning, I was attempting to make some further sense of it. I'll do my best. DEFENCE: Yes.

Summing up

1. In the summing up, the trial judge extensively summed up the closing address of the applicant's trial counsel; and addressed some of the evidence in relation to it from transcript. No complaint is made by the applicant about the summing up and directions of the trial judge.
2. His Honour said the following in relation to the defence case in the summing up (at T 120, 25 March 2021): Ladies and gentlemen, you would recall that [defence counsel] referred at some length to the complainant's inability to describe the penis of the accused, and submitted that that would affect the reliability of the complainant's account. However, clearly, there appears to be no issue that the accused was masturbating; the issue in the accused's case is whether he was masturbating towards the complainant. [Defence counsel] submitted that, when the complainant is asked whether she can say what his penis looked like, the complainant said that she looked away. [Defence counsel] submitted that the Crown submitted it was a well-lit room and the complainant is a reliable witness and that you should accept her version. [Defence counsel] submitted that the complainant cannot provide any detail about the accused's penis. He submitted that this might cause you to doubt that she even looked at him. [Defence counsel] submitted that you might find that her inability to recall these key details is an indication of a witness who was not fully observing what was occurring.
3. Further, his Honour said (at T 124, 25 March 2021): [Defence counsel] submitted that, from [the boyfriend's] evidence, the accused was absorbed in the conversation about army service, and what you have from the complainant was that it was a short period of time from the time the younger daughter was on the balcony. [Defence counsel] submitted that the Crown has not negated the reasonable possibility that the accused did not know the person on the bed, who may have been under the covers, was the complainant, until she woke up and told him to stop. [Defence counsel] submitted, if that is the case, then it could not be said that he was deliberately directing his actions to the complainant, which is a key and central element that the Crown must prove. [Defence counsel] submitted that you must be satisfied he knew or deliberately directed his conduct to someone that he knew was [the complainant] at the time.

Applicant's submissions

1. The applicant referred to the principles that apply to appeal grounds asserting incompetence which were addressed by me in Madden v R [2022] NSWCCA 196 (from [452]) (with which R A Hulme and Bellew JJ agreed); as well as the principles in Hanna v R [2022] NSWCCA 7 (Hanna); Alkhair v R [2016] NSWCCA 4; (2016) 255 A Crim R 419 at [31] per Macfarlan JA (with whom Rothman and Bellew JJ agreed); Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13 (Craig); Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301(Nudd); and TKWJ v The Queen (2002) 212 CLR 126; [2002] HCA 46 (TKWJ). Reference was also made to the fact that the principles that apply to an appeal ground asserting miscarriage of justice have recently been addressed in cases such as Hofer v The Queen [2021] HCA 36; (2021) 291 A Crim R 114 (Hofer); AK v R [2022] NSWCCA 175 (AK v R) at [2] (Beech-Jones CJ at CL); Tomlinson v R (2022) 107 NSWLR 239; [2022] NSWCCA 16 (Tomlinson) at [6] per Brereton JA (with whom N Adams and Cavanagh JJ agreed) and Saunders v R [2022] NSWCCA 273 (Saunders) at [90]-[96] per Simpson AJA (with whom Hamill and Ierace JJ agreed).
2. Emphasis was placed by the applicant on authorities such as Nudd, Craig and Hanna , where it is noted that a fair trial requires that the accused be aware of the entitlement to give evidence in his or her defence notwithstanding that that choice may be unwise (citing Craig at [33]). The applicant accepts that a failure to give proper advice to the appellant would be significant only if, as a result of that failure, something was done or not done at trial that occasioned a significant possibility of a miscarriage of justice (citing Nudd, per Gummow and Hayne JJ at [24], [27]). The applicant points out that the appellate court's assessment of whether the decision not to give evidence deprived the accused of a fair trial "looks to the nature and effect of the incorrect legal advice on the accused's decision" (citing Craig at [33]); and that the conclusion that "the trial of an accused was not a fair trial requires the appellate court to be satisfied that it was the accused's wish to give evidence and that the incorrect legal advice effectively deprived the accused of the opportunity to do so" (citing Craig at [34]).
3. The applicant submits that there was a failure by the applicant's legal representatives to satisfy themselves of what the applicant's case was in relation to count 2 (either by obtaining instructions given to previous representatives or by taking instructions from the applicant); that the legal representatives failed properly to put the defence case to relevant witnesses and in the closing address (and submits that there was no rational reason for doing so, either in the factual circumstances of this particular case, and more particularly in the face of the instructions the applicant had given his prior representatives); and argues that there was a failure by the applicant's legal representatives to give the applicant advice about the importance of and potential detriment to giving evidence in his trial. It is said that the applicant was effectively denied the opportunity to make an informed decision about his right to give evidence. The applicant submits that these errors by themselves must have had a prejudicial effect on the applicant's prospects of acquittal and accordingly a miscarriage of justice occurred.
4. The applicant argues that if his account of the "established sexual practice" between him and his wife was accepted by the jury, it would provide substantial support for the submission that the applicant's act was not directed toward the complainant but, rather, the person that the applicant expected to be his wife. It is emphasised that the applicant told his legal representatives that his actions in relation to count 2 were based on "mistaken identity" and the applicant argues that if the jury accepted the possibility of "mistaken identity" this would have called into question the intention component of count 2, namely that he intentionally masturbated towards the complainant.
5. The applicant contends that his instructions as to this issue should have formed the basis for questions directed to the complainant's mother and says that they may have also formed the basis for questions directed to the complainant, including that she had never slept in her parents' bed before; that she did not tell the applicant she was taking her sister back to bed; that the applicant was ensconced in a conversation with her boyfriend at the time the complainant took her sister to her parents' bed; and might not have been aware of what the applicant was doing, and of the state of her mother's sobriety.
6. It is said that these instructions should also have formed the basis of advice to the applicant about the importance of giving evidence to establish a factual basis for this "established sexual practice", whether or not the complainant's mother accepted it in cross-examination. Further, it is said that the applicant should have been advised about the importance of giving evidence to establish the possibility of "mistaken identity" and to explain the so-called admissions made in the record of interview.
7. The applicant argues that, without attempting to establish a factual basis for the "established sexual practice" and possibility of mistaken identity, the eventual submission made by defence counsel to the jury was completely lacking in substance and "frankly confusing" (see at [111] of his written submissions). It is said that there was no rational reason for defence counsel to have not put questions to either witness about this topic and appears to have been an error. The applicant argues that the defence case was therefore not put on this topic; and refers to the trial judge's comments as supporting this conclusion. Further, the applicant says that he was not properly advised about giving evidence and an informed decision could not have been made.
8. The applicant's non parole period expired on 8 November 2021 and he is currently in immigration detention awaiting deportation. It is submitted that, since the appeal was heard close to the time of the expiration of the applicant's total term, which expires on 7 November 2023, any retrial would occur after he had served his sentence. In those circumstances, if the appeal is successful, the applicant seeks an acquittal on count 2.

Crown Submissions

1. The Crown submits that, in light of the admission into evidence of significant parts of the ERISP (following the contested voir dire), the applicant faced an invidious forensic decision in calling a case in defence at trial. It is submitted that the admissions in the ERISP were problematic and created fertile ground for cross-examination. The Crown relied on the applicant's statement that he had done a "bad thing" and his statements admitting the act of masturbation as admissions. (At trial, the applicant's defence counsel objected to these being relied on as admissions but no complaint is made as to this on the present application.)
2. The Crown contends that no miscarriage arose because the decision not to give evidence was the applicant's decision, made on advice; and that the ERISP given was problematic to the case that he now seeks to advance. Additionally, it is submitted that calling the applicant to give evidence at trial was no good answer to the Crown's case. The Crown says that no miscarriage is demonstrated; and that the application and appeal should be dismissed (see the Crown's submissions at [8]-[9]).
3. Insofar as the applicant raises what are said to be factual misstatements, errors of trial counsel for the applicant (see the applicant's submissions at [91]-[92]), and the discussion of the case for the applicant between the trial judge and trial counsel for the applicant (see the applicant's submissions at [94]­[95]), the Crown notes that the central issues discussed were addressed by the trial judge in his summing up to the jury and that the closing addresses for both parties also made reference to the issue of mistaken identity (see the Crown's written submissions at [57]).
4. The Crown further notes that at trial, the Crown made submissions concerning the possibility of mistaken identity, consistent with that issue having been raised by the applicant, on the evidence in the Crown case, saying that (at T 229.21, 24 March 2021): So it is not a case of mistaken identity, for example any suggestion that [the complainant] may have thought it was actually [the complainant's mother] in the bed, and you may recall in his interview he said [the complainant's mother] was in the bathroom and he was waiting for her; so that is a positive assertion, in the Crown's submission, that he knew she wasn't in that room. Similarly, based on his admissions that [the complainant] was in the bed, there could be no suggestion that the accused didn't realise anyone was in that room. So for all of those reasons, the Crown submits you can be satisfied that the conduct that happened in that bedroom were intentional acts towards or on [the complainant] and that defence counsel also addressed the issue of mistaken identity, relying on the ERISP of the applicant, submitting to the jury (at T 260.05-15, 260.22-31, 260.39-47, 24 March 2021): The point I really wish to make and the Crown's addressed it in detail but there's a key question that wasn't asked by the detectives at the time of the interview, and was never asked, and that's "before she woke up or when you were masturbating did you know who did you think it was in the bed" and that's important because his evidence was that that person was under the covers. So, you had him and a lot's been made of the lighting, but still the issue of the bed clothes being on and over the top of the person still remains. So, what he's not asked is "who did you think it was under the covers", so we have him probably in a state of intoxication by all accounts, and he's in his bedroom and he's next to the spot that he usually sleeps which is next to the spot that his wife usually sleeps. … So, all of it points to the fact that the Crown have not negated as a reasonable possibility, they haven't negated this possibility, which is reasonable, that the accused didn't know that the person in the bed under the covers was [the complainant] until she woke up and told him to stop. Now if that's the case he can't be deliberately directing his actions towards the complainant, and that's a key and central aspect of this case. And it's not enough that you suspect something, it's not enough that you believe or have grave suspicions about it, you have to be satisfied that he knew and deliberately directed this conduct to someone he knew was [the complainant] at the time. … And that's why I ask you to exercise some caution about an interview where he's even looking at these questions the Crown haven't excluded the possibility that he's guessing at some of these answers, [he's] re­constructing it based on what the police have told him. He's trying to put two and two together where, or offer some explanation, racking his brain to try and remember what happened, and none of that should satisfy you that he knows exactly where his wife is, that that is not clear from his evidence in his ERISP. And most particularly, being the ultimate issue is does he know that it's the complainant in the bed.
5. The Crown refers to what was said in Zhou v R [2021] NSWCCA 278, Beech-Jones CJ at CL, said (at [22], Davies and Wilson JJ agreeing): To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that there was a "real chance" that it affected the jury's verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J) or "realistically [could] have affected the verdict of guilt" (at [123] per Gageler J) or "had the capacity for practical injustice" or was "capable of affecting the result of the trial" (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Steward JJ).
6. It is noted that Gageler J's description of the test (to which Beech-Jones CJ at CL referred in the passage above) was analysed and adopted by N Adams J in Tomlinson, at [120]-[139] and Beech-Jones CJ at CL in AK v R at [3]-[4]. Reference is also made to BQ v R [2023] NSWCCA 34 at [241] (Davies and McNaughton JJ, R A Hulme AJ); Saunders at [92]-[93] (Simpson AJA, with whom Hamill and Ierace JJ agreed); Davis v R [2017] NSWCCA 257 (Davis v R) at [59] (Price J, with whom Hoeben CJ at CL and Schmidt J agreed).
7. Addressing the arguments raised by the applicant to the effect that he had a positive defence of mistaken identity available and was deprived of an opportunity of an acquittal (see the applicant's written submissions at [6]), the Crown says the following.
8. First, as to the complaint that the applicant was not advised as to the importance of giving evidence and the possible detriment of not giving evidence in his case, and that his trial lawyers did not sufficiently take instructions from the applicant, the Crown submits that the evidence does not establish this.
9. Second, as to the argument that the defence case based on the applicant's instructions was not put to witnesses during the trial by defence counsel, the Crown notes that the construction of a defence case does not require every defence fact or hypothesis to be put to every witness. The Crown says that the issue as to the sleeping arrangements was put to the complainant and nothing more needed to be done to shore up an uncontroversial fact, which was consistent with the description of sleeping arrangements of the complainant and the applicant in evidence in the trial (and it is noted that there was no dispute that the complainant was asleep on the applicant's bed at the time of the incident). The Crown contends that questioning as to the possibility of mistaken identity was not a matter on which the complainant, or the other witnesses, could reasonably answer questions. It is noted that questions that sought to elicit information concerning the applicant's state of mind would have been inadmissible; and any answer to such questions would be entirely speculative. The Crown says that no factual scenario is demonstrated which would objectively reveal the mistake of identity in the mind of the applicant contended for (for example, evidence to suggest that the applicant made some such exculpatory comment about mistake at the time). The Crown says that there was no meaningful forensic advantage in asking the witnesses to speculate; and that an obverse risk existed in that if a negative answer was given it would be prejudicial, even if it was not particularly relevant (referring, by way of example, to La Rocca v R [2021] NSWCCA 116 at [130]-[135] per Adamson J, as her Honour then was).
10. The Crown points out that there was cross-examination as to objective matters that could impact in the use of mistaken identity (such as cross-examination regarding the poor lighting and that the complainant was under the covers at the time). The Crown says that there was no obligation to put the possibility of mistaken identity directly to witnesses and there were discernible objective reasons not to do so. It is submitted that no practical injustice or miscarriage is established.
11. As to the complaint that the so-called "established sexual practice" was not put to the complainant's wife in cross-examination, the Crown says that there are observable objective reasons which explain this course: that the topic in its essence is one which can be expected to be deeply embarrassing; and that such a line of questioning would be extremely risky, of marginal relevance, and, if denied, highly prejudicial to the interests of the applicant. Additionally, it is noted that the complainant's mother had generally supported her daughter in making the allegations against the applicant, which the Crown suggests made the prospect of negative answers even more likely. The Crown says that it was entirely sensible for the proposition not to be put, or the topic not to be explored in the hearing.
12. Third, as to the applicant's complaint that he did not give evidence in his trial despite wanting to do so, the Crown points to the evidence of Mr Martin (as to the advice given in relation to this issue) and the Crown argues that it is apparent in any event that, on the face of the record, calling the applicant at trial was problematic. It is said that a series of cross-examination topics would have repeated and emphasised parts of the evidence which were already prejudicial, beyond the mere allegations. The Crown submits that at least the following topics would have been problematic: the clear admissions in the ERISP to the acts and the wrongfulness of them; the applicant saying in answer to a question from his wife about what he had done ("So what, what are you going to do about it?"); and the applicant's conduct in preventing the complainant and his wife from leaving the bathroom.
13. The Crown submits that, although there may have been some forensic value in the applicant giving evidence that he was mistaken about the identity of the person in the bed which his trial counsel had raised by inference, the prejudice which could have arisen from cross-examination is likely to have outweighed any advantage. It is submitted that the decision not to call him was objectively rational and, at least, it was rationally open; and that no practical injustice arises.
14. Fourth, as to the complaint that defence counsel did not close to the jury on the instructions given to him and only "touched upon" the mistaken identity defence, the Crown argues that defence counsel squarely raised the mistaken identity issue by inference: by making submissions in closing concerning the ERISP, including whether they had asked who was under the covers; and that the defence counsel invited the jury to infer mistake because the acts occurred in the applicant's bedroom where he and his wife slept. The Crown says that the applicant's own interview was unclear about whether he knew where his wife was and the question of who was under the covers was not put to him; and that the interview did not establish that he knew it was the complainant before she told him to stop. It is noted that defence counsel suggested the jury could not be satisfied that the applicant knew it was the complainant, saying (at T 260.22-31, 24 March 2021): So, all of it points to the fact that the Crown have not negated as a reasonable possibility, they haven't negated this possibility, which is reasonable, that the accused didn't know that the person in the bed under the covers was [the complainant] until she woke up and told him to stop. Now if that's the case he can't be deliberately directing his actions towards the complainant, and that's a key and central aspect of this case. And it's not enough that you suspect something, it's not enough that you believe or have grave suspicions about it, you have to be satisfied that he knew and deliberately directed this conduct to someone he knew was [the complainant] at the time.
15. While the Crown accepts that the applicant did not rely on his own evidence to mount a positive case for mistake, it is submitted that a case was reasonably made by inference and was put to the jury in the closing address by defence counsel.
16. Insofar as the applicant asserts that the trial judge expressed confusion as to the nature of the defence (see the applicant's written submissions at [38]-[39]), and the trial judge during the defence closing address interrupted submissions for purposes of ensuring accuracy, the Crown notes that it was towards the end of the trial, the cases had closed, and the jury was simply to be directed as to the legal bases to return verdicts one way or the other.
17. The Crown submits that the positive defence that the applicant asserts on appeal should have been explicitly run at trial strains credulity; it is submitted that this defence is redolent of dissembling and blaming others (see the Crown's submissions at [95]).
18. Finally, it is submitted that should the applicant's appeal succeed, an order setting aside the conviction in count 2 would be made (under s 6(1) of the Criminal Appeal Act). The Crown contends a remittal order ought to be made, and the discretion as re-prosecution should remain with the statutory holder of power (being the Director of Public Prosecution) (referring to the considerations relating to remittal are described in Gilham v R [2012] NSWCCA 131; (2012) 223 A Crim R 22 (Gilham) at [648]-[660] per McClellan CJ at CL, affirmed in WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142 at [93] per Beech-Jones J, as his Honour then was, with whom Payne JA and N Adams J agreed). The Crown submits that the following factors militate in favour of remittal: it was only the first trial listing; the evidence was cogent; the offence subject of appeal consisted of sexual offending against a child; the complaint on appeal is not about the evidence or directions, but about the conduct of the trial; the interest of the public in properly prosecuting offenders, particularly in this class of crime; the public interest in decisions about prosecution being left to executive government (a discretion held by the Director of Public Prosecution). It is accepted that, against those factors, is the fact that the sentence of the applicant will have expired before retrial; and the imposition of the stress of a retrial on the applicant.
19. Further, the Crown says that, on possible resentence, if a conviction is set aside, a consequential order relating to counts 3 and 4 is required. It is noted that the sentence imposed on count 2 is an indicative part of an aggregate sentence (the others being counts 3 and 4). It is noted that this Court holds a power to resentence or remit related matters for resentence by the District Court (see s 7(1) of the Criminal Appeal Act; AW v R [2023] NSWCCA 92 (AW v R) per Mitchelmore JA at [64]-[67] (with whom Davies and Hamill JJ agreed)); and that the question of resentence or remittal is very much case dependent (see AW v R at [66]).
20. In this matter, the Crown says that the differing nature of the offences and the relevance of the finality of the convictions to any later trial, suggests that there should be a resentencing if the appeal were to be upheld. The Crown submits that on any resentence, the material below and the reasons of the sentencing judge are adopted as suitable, including the starting date for sentence; and that the indicative sentences to be imposed on counts 3 and 4 should not exceed those imposed below (as an aspect of the ceiling principle).

Determination

1. Where incompetence of trial counsel is alleged, the question is whether what did or did not occur at trial occasioned a miscarriage of justice (see Nudd at [12] per Gleeson CJ; TKWJ at [79] per McHugh J; Ali v R [2005] HCA 8; (2005) 79 ALJR 662 at [18] per Hayne J).
2. As a general rule, a party is bound by the conduct of his or her legal representatives (R v Birks (1990) 19 NSWLR 677 (Birks) per Gleeson CJ at 683). In the present case, there was a clear forensic choice made by the applicant in the conference with Mr Martin that occurred in the court room dock on 23 March 2023 (as he accepted in effect in cross-examination in this Court - see at T 32.21-23, 17 July 2023), the applicant accepting that he had been asked to make a decision as to whether to give evidence and understanding that he could give evidence up until the end of the trial (T 32.40-44, 17 July 2023; the applicant having been shown Annexure F to Mr Martin's affidavit). It cannot be said that this was the product of some irrational decision or incompetent advice. There were, as the Crown notes, obvious risks in the applicant giving evidence before the jury and the evidence of Mr Enright suggests that the applicant was not willing to expose himself again to cross-examination by the Crown after his experience on the voir dire. What here appears to be the case is that, having seen the outcome, the applicant regrets the decision that he made at the time.
3. This is not to my mind a situation where there can be said to have been "flagrant incompetence" of counsel or instructing solicitors. Mr Enright took a proof of evidence from the applicant. True it is that he did not have access to, or read, the previous solicitors' notes of the instructions that the applicant had given them; but it cannot be said that he did not attempt to obtain instructions from the very source (albeit in the 22 January 2021 telephone conference) and the inconsistencies with the ERISP emerge clearly enough from his note of those instructions. I accept Mr Martin's evidence that he did read the notes (and indeed gave consideration as to how the issue of the alleged sexual practice could properly be explored in cross-examination of the complainant's wife and in determining whether the applicant would be advised to give evidence). This is not a situation where there has been such a failure to ascertain instructions such as to amount to flagrant incompetence, or otherwise giving rise to a miscarriage of justice (see TKWJ at [80]-[81] per McHugh J; Nudd at [16] per Gleeson CJ; [24]-[25] per Gummow and Hayne JJ). As to the advice whether or not to give evidence, it is to my mind an overstatement to suggest that the applicant should have been told that, without giving evidence himself, it was inevitable that his defence would fail. It is important to remember that at this stage of the trial the applicant was also facing count 1 on the indictment (the touching offence).
4. The invidious forensic position that the applicant was in is demonstrated by the evidence that Mr Martin gave in this Court in re-examination (see T 70.33-71.30, 17 July 2023): Q. But Mr Martin, there's indications from the applicant that he had a view about his end of the relationship with his wife? A. Yes. Q. It's been put to you that you didn't actually put that to his wife in the trial? A. Yes. Q. And that accords with the trial transcript? A. Yes. Q. Did you think about putting that to his wife? A. I did think about how to raise that issue. The difficulty was, his personal expectations or thoughts are something that only he could give evidence of, where his wife was in a bathroom being quite physically ill, and I think some of the evidence was that she'd locked herself in that bathroom. My view was that there were aspects of his evidence or aspects of his case that only he could give evidence about. Otherwise you'd be putting - asking witnesses to go into his mind about what he was thinking or expecting, and that was one of difficulties, where there had been - in amongst the difficulty that he had admitted to masturbating in the ERISP and the difficulty of trying to put a contradictory position to his ERISP to a witness. GARLING J So there would also be this difficulty wouldn't there? I invite your attention to page 21 of the evidence bundle and go to the last paragraph which is applicant's account given to his former lawyers which came through in due course. "I was not impressed to find the complainant in my room and gave her a nasty look when she saw me undressed. [She] softly said 'stop touching yourself'". So plainly there was in his mind a comment which could only have referred to him masturbating? A. Yes and that caused me a great deal of difficulty running a case that he didn't masturbate at all where there-- GARLING J Well, it would [be] contrary to your instructions? A. Yes. GARLING J Contrary to what he told the police, is that right? A. Yes, your Honour. GARLING J It's a very hard thing to put to a witness? A. Yes and I struggled and grappled with it and had great difficulty with it as to I did give it considerable thought and it was really a sort of a catch 22 situation where I felt a duty to not put a contradictory case or try and mislead. I was concerned about running a misleading case or putting a contradictory case and the ramifications that might happen if you put a proposition to a witness yet there is different material for example in the ERISP. I thought that they prejudice him.
5. In Birks, Gleeson CJ said (at 686) that: The failure to deal with the matter was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better. This was not a matter of taking a calculated risk. The barrister simply did not know what to do, and so, until it was too late, he did nothing.
6. Counsel's conduct is to be examined objectively, from the record of the trial (see Nudd per Gleeson CJ at [9]), and the relevant standard is whether the conduct was "incapable of rational explanation on forensic grounds" (Xie v R [2021] NSWCCA 1; (2021) 386 ALR 371 at [415] per Bathurst CJ, R A Hulme and Beech-Jones JJ; citing Nudd at [16] per Gleeson CJ; Hanna at [17] per Basten JA).
7. In light of the passage above, it cannot in my opinion be said that there was incompetence of counsel in the decision that the defence counsel here made, which was not to explore the so-called "established sexual practice" line of questioning. When it comes down to it, that so-called practice was evidenced by nothing other than the instructions that the applicant's wife was often "playful" after drinking or would demand sex (and was "unforgiving" if he was unable to perform). There is nothing to support the conclusion that this was a bilateral practice (as opposed to the applicant's perception of the situation) and nothing to suggest it was more than an assumption on his part. There was certainly nothing to suggest that the practice encompassed masturbation in advance of such sexual practices.
8. As made clear in Birks, it is insufficient for an applicant "simply [to] point to some failing, even a gross failing, of the legal representative who appeared"; rather, what must be demonstrated is that what did or did not occur affected the outcome of the trial (see Roach v R [2019] NSWCCA 160; (2019) 344 FLR 429 at [155] per Bathurst CJ, Bell P, as his Honour then was, and Johnson J; citing Davis v R at [59] per Price J, with Hoeben CJ at CL and Schmidt J agreeing). Ultimately, there is nothing to support the conclusion that if the complainant's mother had been asked questions of the kind that the applicant now suggests she should have been asked, the outcome would have been different.
9. The position was always the case that if the applicant was to contest the allegations made against him other than by impugning the credit or reliability of the complainant, then he had to give evidence because the accounts of the complainant's mother and boyfriend corroborated the complainant's evidence; and, apart from the lack of reference to the touching, so did the 000 call made at the time. A mistaken identity defence of the kind here suggested would have had the difficulty of inconsistency with the account given not only in the ERISP (and in the face of inconsistent instructions as to whether or not the applicant was in fact masturbating at the time this would have been a difficult path to tread).
10. Further, the reliance placed on the attempts by the trial judge accurately to encapsulate the applicant's defence in the summing up do not assist the applicant to establish incompetence of counsel of the kind alleged (see Nguyen v R [2022] NSWCCA 126 at [64] per Beech-Jones CJ at CL, with whom R A Hulme and Adamson JJ agreed). In large part, they seem to reflect the difficulty with which the applicant's positive defence of mistaken identity would have been faced.
11. The ground of appeal is not established, and no practical injustice has here been demonstrated. Leave to appeal should be granted and the appeal dismissed.
12. GARLING J: The comprehensive, thorough and detailed recounting of the applicant's instructions and the course of the trial in the judgment of Ward A‑CJ, for which I express my gratitude, means that I can be succinct in these reasons.
13. I agree with Ward A-CJ that leave to appeal should be granted and that the appeal ought to be dismissed. The applicant has no justifiable basis to complain about the conduct of his trial by his lawyers. No miscarriage of justice has been established with respect to his conviction on Count 2.
14. Before this Court, the applicant advanced a case on Count 2 which was simply unbelievable, and which was inconsistent with previous instructions which he had given.
15. The Crown case on Count 2, in brief, was that whilst the complainant and his sister were asleep in the bed of the applicant and his wife, the applicant entered the bedroom after many hours of drinking alcohol, stood next to the bed, dropped his trousers down to his thighs and commenced masturbating whilst his penis was visible to the complainant. The complainant told the applicant to stop, which he did, although the length of time after the request until he stopped is not clear.
16. The complainant left the room and made an immediate complaint to her boyfriend and then her mother. The applicant was asked to explain himself and did not deny any detail recounted as to what happened. Rather, he was concerned to know what the complainant and the mother were going to do about it.
17. The applicant told police in a recorded interview that he had attempted to masturbate next to the complainant, but not "in front" of her. He could not give any explanation to police for his conduct, nor did he attempt to justify it.
18. At the time of his conduct, the applicant's wife, who was also significantly inebriated, was in a bathroom in the apartment being sick. The applicant told police that prior to his conduct he had looked for his wife, and that she was in the bathroom, which was not the bathroom which was an ensuite to their bedroom.
19. The applicant agreed with police that what he had done was "very bad" and was "not normal". He did not suggest to police that he was acting in the mistaken belief that his wife was already in their marital bed expecting to have sexual relations with him, nor that he was preparing himself for such an encounter.
20. In his affidavit filed in this Court in support of this application, the applicant gave an entirely different account of what had occurred. He said that he had not removed any of his clothes, that his penis was at all times within his pants, and that he touched his penis from the outside of his pants. He said that the complainant then sat up, left the bed and the room. This account was wholly inconsistent with the complainant's account and the account which the applicant had given to the police.
21. In this Court, senior counsel for the applicant argued that his conduct was undertaken to prepare himself for engaging in sexual relations with his wife whom he expected to be in bed or else would shortly come to bed. His case was that he did not expect the complainant to be in the bed.
22. When giving instructions to his first set of lawyers, the applicant deposes that he gave an account similar to that set out in his affidavit in this Court. However, the notes of Ms Eljiz, his first solicitor, record that the applicant told her that, in the context that he thought the person in the bed was his wife, he started undressing and attempted to masturbate in order to achieve an erection. His assumption about the presence of his wife was based on the fact that he could not find her elsewhere in the apartment.
23. In further instructions to his initial team of lawyers, the applicant maintained that he only touched himself through his clothes and so it was impossible for the complainant to have seen his penis.
24. The instructions which were given to his second legal team are recorded at [77] above. I note that this version of events, namely, before anything at all untoward occurred, he pulled the blanket from the bed and discovered that his wife was not in it, but that the complainant was, had not been previously given, either contemporaneously, or else to his first set of lawyers. In his affidavit in this Court, the applicant denied giving such instructions to his second set of lawyers, notwithstanding the existence of a contemporaneous note taken by Mr Enright confirming those instructions.
25. He also gave another version to trial counsel that he went into the bedroom looking for his wife, but instead finding the complainant. He said "I did not do anything" and, later when pressed by trial counsel, his instructions were "I did not masturbate". The content of the applicant's affidavit in this Court is inconsistent with those instructions.
26. As noted in Ward A-CJ's judgment, the applicant, having received advice, and having had the opportunity of considering that advice, made an election not to give evidence during the trial.
27. As it seems to me, in summary, the position is this: 1. the applicant was confronted with the evidence of the complainant which clearly established the necessary facts to prove Count 2. That evidence was corroborated by immediate complaint to the complainant's mother and boyfriend; 2. the applicant at first did not deny or seek to excuse his conduct when confronted by the complainant and her mother, and within a few hours, had told police investigators in a formal interview that he had attempted to masturbate, and that what he had done was not normal and was very bad. He did not give any rational explanation as to how this had occurred; and 3. the applicant gave conflicting instructions to his various lawyers, ranging from: 1. that he did undress and commence to masturbate, but thought that his wife was in bed expecting him; 2. that he removed the blanket and found that the complainant was in the bed, and that she then left and nothing happened; and 3. that he had not undressed at all, or exposed his penis in any way, but touched himself through his clothes.
28. On all the versions, the applicant was well intoxicated on the evening. The intoxication, he accepted, had affected the accuracy of his memory.
29. In this Court, the applicant deposed to a version that he had remained fully clothed and had only touched his penis from outside his clothing. This version had clear inconsistencies with the other versions he had given.
30. If the applicant wanted the jury to consider the version of facts which he now advances, it was necessary for him to give evidence about that version. He was specifically advised about this necessity by his counsel. He chose, after a period of consideration, not to give evidence before the jury. Unsurprisingly, he was convicted of Count 2.
31. The applicant in my view is now seeking, in circumstances where he has been convicted after a properly conducted trial, to advance a case theory which was not, and could not be, advanced at trial because of his considered choice not to give evidence.
32. The version now sought to be advanced is inconsistent with earlier versions given to police and his lawyers. It is inconsistent with his conduct when he was confronted by the complainant and her mother (his wife) with her account of what occurred which he did not deny. The applicant provides no acceptable explanation for these conflicting versions.
33. The applicant had a fair trial, and his counsel conducted the case on the basis of his instructions. The applicant has not demonstrated any miscarriage of justice.
34. For these reasons, I agree with the orders proposed by Ward A-CJ.
35. WILSON J: The difficulty faced by the applicant in the conduct of his trial was one of his own making; nothing in the record of the trial or the evidence placed before this Court establishes that fault lay with his lawyers.
36. The applicant gave differing accounts of the relevant events with significantly contradictory detail. Some of his instructions to his legal representatives were even internally contradictory, an example being the instructions the applicant gave to Ms Eljiz, extracted in the judgment of Ward ACJ at [66]. On that occasion the applicant told his lawyer that he "did not at any time masturbate", that he started undressing and was "trying to get an erection", and that he "did touch" himself. He gave accounts of his penis being exposed; and also fully covered by his clothing; and of knowing that his wife was in the bathroom, and believing that she was in their bed. The explanation for those contradictions advanced from the Bar Table - that they were explained by the applicant's poor English language skills - is not persuasive in circumstances where both police officers and the applicant's lawyers experienced no difficulty in communicating with him in English.
37. The applicant's legal representatives at trial were constrained to present his case in accordance with his instructions, leading to the difficulty trial counsel referred to in evidence to this Court (set out at [203] of the judgment of Ward ACJ).
38. As Ward ACJ concluded, there was no miscarriage of justice. I agree with the orders the Presiding Judge proposes, for the reasons her Honour has given.

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