Kees Langelaar v R

Court of Criminal Appeal (NSW)|2016-04-29|Before: Hoeben CJ, Campbell J, Adams J, Kirby P, Badgery-Parker J, Ireland J

Judgment

HOEBEN CJ at CL: I agree with N Adams J.
CAMPBELL J: I agree with the orders proposed by N Adams J for the reasons her Honour expresses.
N ADAMS J: Kees Langelaar ("the applicant") appeals against his conviction and makes application for leave to appeal against his sentence. He appeared unrepresented at the hearing of his appeal. He is 72 years of age.

Background

On 22 May 2012, the applicant stood trial in the District Court at Taree on five counts of sexual intercourse with a person over the age of 14 years and under the age of 16 years who was then under his authority contrary to s 66C(4) of the Crimes Act 1900 (NSW) and one count of indecent assault on a person under the age of 16 years contrary to s 61M(2) of the Crimes Act. The applicant pleaded not guilty to all counts and his trial proceeded before Williams DCJ and a jury of twelve.
On 31 May 2012, the jury returned verdicts of guilty in relation to four of the five counts on the indictment contrary to s 66C(4) (Counts 1, 2, 4, and 5) and in relation to the one count of indecent assault (Count 3). The jury returned a verdict of not guilty in relation to the remaining count (Count 6).
On 11 November 2013, Williams DCJ sentenced the applicant to an aggregate sentence of imprisonment for five years with a non-parole period of three years. The indicative sentence of imprisonment for each of Counts 1 and 2 was two years and six months, for Count 3 it was three years with a non-parole period of two years, for Count 4 it was three years and for Count 5 it was four years.

The Crown case

The Crown case relied predominantly upon the evidence of the complainant. Her evidence in chief was given by way of recorded interview, supplemented by further oral evidence. The complainant's grandmother, the applicant's ex-partner Ms Tracey Goodwin and the officer in charge were the other three witnesses called for the prosecution. The applicant did not participate in an ERISP nor did he give evidence at his trial. His daughter S was the only witness called to give evidence in his case.
The evidence given at trial can be briefly summarised as follows.
As at 2012 the applicant was living with his then partner Ms Goodwin, their two daughters and the applicant's brother at a large house with attached flats in Wingham, near Taree. The complainant was friends with the applicant's oldest daughter S. Both S and the complainant were fifteen years old.
In May 2012, the complainant moved in with the applicant and his family. She had previously been living with her grandmother, but had been asked to leave after getting into trouble with the police. On prior occasions she had stayed overnight at the applicant's house and as such knew the family well.

Context evidence

The complainant and the applicant developed a close relationship in which the applicant was described in evidence as acting as a sort of "father figure" for her. They spoke about their problems together. A few weeks after the complainant started living with the applicant and his family, the applicant started doing things which were "kinda sexual" to the complainant. He would tell her she had a "better arse" than his daughter's and talk about his "sex life". He would rub up against her and rub his hands up and down her legs and "stuff like that." He would kiss her on the lips "maybe every day" and on occasion it would be "passionately like a full on kiss."
There was evidence that the complainant would walk around in her underwear in front of the applicant. There was also evidence that the complainant would sit with her legs on the applicant's lap under a blanket watching television. Sometimes she would be wearing a t-shirt and underwear. This conduct was observed by Ms Goodwin who described their body language as being "way out of whack." She spoke to the applicant about it. He replied, "This is not happening at all" and "…then he said that if I don't stop harassing him that he'll have sex with her on her sixteenth birthday."
On 30 May 2012, the complainant took part in an electronically recorded interview with police. Therein she outlined a number of specific allegations against the applicant. When she gave evidence she stated that there were "numerous times" when the applicant put his fingers inside her vagina.
In relation to the six counts on the indictment at trial the evidence was as follows.

Count 1: Aggravated sexual intercourse

On one occasion the complainant was sitting on the lounge at night watching television with the applicant. Her legs were draped over the applicant's legs. The applicant rubbed the complainant's legs up and down and then penetrated her vagina with his finger. The complainant did not say anything to the applicant. She told police she didn't stop it because she liked it. She was wearing a t-shirt and pyjama pants at the time. She told the court in relation to that incident that "it was the same as every other time" and "it was the same routine."
Ms Goodwin was in her bedroom at this time and S was asleep on another couch in the same room.

Count 2: Aggravated sexual intercourse

On another occasion the complainant was sitting on the lounge at night watching television with the applicant with her legs across the applicant's lap. The applicant rubbed the complainant's legs up and down and then penetrated her vagina with his thumb. She was wearing a t-shirt and pyjama pants at the time. She did not say anything to the applicant. Afterwards he said to her, "The thumb is always the best."

Count 3: Aggravated indecent assault

On one occasion while the applicant and the complainant were in the lounge room seated on the couch with a blanket over both of them, the applicant requested that the complainant give him a "hand job" and she complied. In her interview she told police he didn't really say anything, "he just undone his pants and yeah." At the trial she gave evidence that the applicant "zipped down his pants and he put my hand on his penis."
The complainant gave evidence that she stroked the applicant's penis for about 10-15 minutes until he ejaculated in her hand. When she walked away from him after this he thanked her.

Counts 4 - 6: Aggravated sexual intercourse

The final three counts on the indictment all arose from one incident.

Count 4

The applicant was sitting on the lounge with her legs across the applicant's lap late at night. S was in bed and Ms Goodwin and the applicant's younger daughter had gone to stay with a relative following a fight between the applicant and Ms Goodwin.
The complainant was wearing a t-shirt, underpants and maybe a bra. They were both under a blanket. The applicant started touching the complainant's legs and then started touching her vagina. He inserted his fingers in and out of her vagina. She told police in her interview that she did not tell him to stop because she liked it. This occurred for about five minutes. They did not say anything to each other during this time and they remained covered by the blanket.

Count 5

After the above sexual act, the applicant asked the complainant if she wanted to go somewhere else in case S came in. She followed him into his bedroom. She told him that she did not wish to have sex with him and he said that was fine. They kissed each other passionately.
The complainant told police that the applicant "just kept pushing me to have sex. I didn't want to so I gave him oral sex instead." The complainant then sucked the applicant's penis, which was "hard." She said this occurred for a period which was "not long."

Count 6

This was the count in relation to which the applicant was acquitted. After the act of fellatio, the applicant told the complainant to get on the bed. He removed her underpants. She stated he "got his penis into my vagina" from behind whilst she was on her knees. She stated that his penis was not inside her for very long before the applicant ejaculated inside her vagina.
The applicant then put his pants back on and told the complainant to, "Go clean yourself up". The complainant guessed it was about 2.30am at this stage. She told police that having sexual intercourse with the applicant had made her feel "yuck" and said, "I didn't like it. I was scared".
When the complainant was re-examined by the Crown Prosecutor she stated that she could not put the four separate incidents into a clear chronological sequence.

The interrupted kiss

The complainant gave evidence that one evening, just before she moved out of the applicant's premises, S and her boyfriend went out together to buy ice cream. When they returned at some point between 11pm and midnight, S walked into the lounge room and saw the complainant and the applicant kissing. The complainant described it as a "passionate kiss" and agreed that tongues were involved. She stated, "S went off and she went into her room." The complainant said that the applicant told her to tell S, "that we were mocking them, S and her boyfriend, which was the most stupidest lie I've ever heard in my whole entire life." The complainant stated that she had to tell S this and also the applicant's partner Tracey Goodwin. Ms Goodwin said to her, "I want you out by the end of the week."
Ms Goodwin gave evidence that she was awoken one night by S at about 11.30pm. S said, "I just caught my dad hooking up with [the complainant]". Ms Goodwin went out to the lounge room and saw the complainant and the applicant under a blanket together on the couch. Ms Goodwin said "What the hell's going on here? [S]'s just come out and…told me that you're hooking up with [the complainant]. What - what the hell's going on?" The complainant and the applicant then said that it was not true and that they were just imitating S and her boyfriend. At this time S "went absolutely berko" at the complainant and said, "You're out of here. You're leaving tomorrow. How sick are you for hooking up with my dad." S also told Ms Goodwin that, when they were caught, the complainant had pulled the blanket up over her head and said "Awkies [a colloquial expression they both used meaning "awkward"]. I just hooked up with your father."
S did not provide a statement to police, but gave evidence in the defence case. She said that when she walked into the lounge room that night all she saw was a "peck" on the lips that lasted "less than a second." S said she went into her parent's room to tell her mother. She stated her reason as, "Mum had been saying all this stuff about [the complainant] and Dad and all these allegations and stuff and I thought that maybe it was true. But I think I made an overreaction."
In cross-examination S agreed that she had seen the complainant and the applicant exchange a goodnight kiss on previous occasions. She was asked what it was about this particular kiss that prompted her to wake her mother up. She replied, "I'm not sure; I was very stressed out; my health and that. Mum had been talking about this a lot, and I'd overheard some things, but I don't really remember what they were, but it was in my mind at the time."

Evidence of complaint

The complainant gave evidence in cross-examination that she had not said anything to her best friend, the applicant's daughter S, about what was happening. She said this was because "she [S] wouldn't believe me; because it's her father, she loves him."
The day after the interrupted kiss the complainant moved back in with her grandmother. She was asked to see a counsellor and told the counsellor about kissing the applicant. The counsellor told her this was inappropriate and spoke to her grandmother. The matter was subsequently referred to police at which time the allegations of sexual assault were first made.

Admissions made to Tracey Goodwin

Tracey Goodwin gave evidence that, a few days after the complainant moved out, she left the applicant and booked into a motel. On 17 June 2012, she returned to their home and spoke with the applicant. He told her that he had to get a catheter inserted. She responded, "Oh, you've probably got an STD from [the complainant]." The applicant replied, "Oh ten points for Tracey" and motioned as if to write a tick on the wall. Ms Goodwin said to the applicant, "Now that we're alone can you be honest with me? Did you have sex with [the complainant]?" The applicant started to cry and said, "Yes, I did have sex with [the complainant]." Ms Goodwin swore at him and he responded, "It was a mistake, I should never have done it."
The applicant told Ms Goodwin that he had had sex with the complainant on three occasions. Once in the hallway near a door frame and another time in the kitchen pantry. Ms Goodwin stated that she did not wish to know about the third occasion. She told the court, "I just needed air. I just burst into tears and walked out…onto the verandah." He said to her, "[the complainant] has a much cuter arse that you'll ever have". In cross-examination she agreed that he said to her, "Yeah I fucked her, whatever." It was put to her that those words were said in the heat of an argument, but she replied they were spoken calmly.

Other evidence

The complainant's grandmother gave evidence that the complainant's mother was married to her eldest grandson, but that he was not the complainant's father. The complainant had entered her care through "DOCS". She and the complainant used to argue a lot and when she found out that the complainant had been caught drinking at a hotel she told the complainant that she had to leave. She agreed in cross-examination that the complainant had been in trouble at school and had long-standing mental health problems.
Detective Senior Constable Elizabeth Dean, the officer in charge, gave evidence that the complainant's allegation was referred to the Child Abuse Squad in Port Macquarie in May 2012 for investigation. The complainant was interviewed on 30 May 2012 and the applicant was arrested on 7 June 2012. Although he exercised his right to silence he did tell police whilst in the custody area of the police station that he was aware that the complainant was 15 years old and told police, "She turns 16 soon."

The defence case

The defence case as put through cross-examination of the Crown witnesses, the evidence of S and the closing address was that the offences did not occur. The defence case relied upon the complainant's troubled history and mental health issues. Counsel for the applicant pointed to the inconsistencies between Ms Goodwin's evidence of the applicant's admissions to her, to the effect that he had sex with the complainant three times including once in the hallway and once in the pantry, and the evidence of the complainant that "sex" had only occurred once and it had occurred in the bedroom.
It was put to the complainant in cross-examination that the situation had "snowballed." She saw her counsellor and got some sympathy and was then able to go back her grandmother's house. She denied this.
It was put to the jury that Ms Goodwin misinterpreted what she observed and what the applicant told her. There was a history of jealousy and unfaithfulness in the relationship between the applicant and Ms Goodwin.
Reliance was placed upon S's evidence that she never saw her father behave inappropriately towards the complainant.

Appeal against conviction

A Notice of Intention to Appeal was filed on 4 September 2013, in which the applicant sought an extension of time within which to file a Notice of Appeal. An amended Notice of Intention to Appeal was filed on 11 November 2013. The life of the Notice of Intention to Appeal was subsequently extended a number of times, with the expiration date for the last extension being 18 March 2015. A Notice of Appeal was filed on 4 November 2015.
There was no opposition to the applicant being granted a further extension of time to bring his appeal.

Grounds of appeal

At the hearing of the appeal the applicant relied upon a number of handwritten and typed documents. That material comprises documents relied upon as submissions, documents relied upon as evidence in support of some of his grounds and other documents relied upon as "fresh" evidence. The applicant initially relied upon five grounds of appeal in his handwritten document headed "Grounds of Appeal," filed on 4 November 2015. He relied upon a further 10 grounds of appeal as set out in an undated document also headed "Grounds of Appeal," which forms part of the material filed in support of the appeal. For ease of reference, the ten grounds contained in the second document filed will be re-numbered 6-15 (rather than 1-10)

First (handwritten) grounds of appeal Ground 1: His Honour stated he was confused as to how the jury dismissed some charges and yet found the defendant guilty of others. Ground 2: 2 Key defence witnesses who made sworn affidavits in [sic] the innocence of the defendant were not brought at the trial. Ground 3: There was no corroborating evidence provided by the DPP e.g. DNA or other witnesses. Ground 4: His Honour at the sentence hearing wrongly stated that I had self confessed when he was accepting a statement made by my ex partner which was not a confession by me to the court Ground 5: The victim did not follow the required procedure before reporting to the police. The 'victim' is required to be referred to a sexual assault service before the police take a statement. This removed the clear opportunity for any forensic evidence which would have cleared me of wrongdoing.

Further grounds of appeal Ground 6 There was no objective evidence. Ground 7: It was the 15 year old [complainant's] word against the 70 year old applicant Kees Langelaar and Kees was not allowed to speak. Prior to the trial he was judged as too old to speak clearly or be on topic by his own Solicitor and Barrister. Ground 8: Statements [the complainant] was sexually experienced prior to the allegations of sexual assault were not compiled and given as evidence. Ground 9: A complete medical record of Kees has not been completed regarded sexual function and capability. Kees had needed Viagra in his relationship with his previous de-factor partner and is currently awaiting test results for prostate cancer. Dr Nagaonkar has said the prostate is double normal size. There is also a diagnosis of Essential Tremor. Kees' medical report describes "Essential Tremor is a neurological (nervous system) disorder which causes involuntary shaking and trembling of particular parts of the body." Ground 10: A list of statements from previous men in [the complainant's] family who had been accused by [the complainant] of sexual assault were not compiled. Ground 11: Kees' solicitor and barrister believed [the complainant's] testimony had so much emotional transport and conviction that things looked very bad and so they focussed primarily upon getting a confession from their client throughout the trial and after. Ground 12: Statements from numerous community members regarding Kees' history of good parenting and supervision of their children were not taken into account. Ground 13: A statement from Rhonda Jean Mills, a Facebook friend of [the complainant] quoted [the complainant's] public Facebook Post as saying "Shut the fuck up you jealous bitches, I haven't slept with a 71 year old man". This statement was not given in evidence Ground 14: A later statement was given by Timothy Coulson, a friend of [the complainant]. The conversation went: ["What happened between you and Kees? [The complainant] said "Nothing". Timothy said "well what's happening at court?" [The complainant] said "I don't know. I'm not being told anything but nothing really happened.] This statement has not yet been given as evidence Ground 15: The Crown's entire position rested on one fact. [The complainant] made a statement to the police and that is all there ever was and ever has been.

The 15 grounds relied upon can be conveniently dealt with in sub-groups. Grounds 2 and 14 will be considered under the heading "fresh evidence." Grounds 7, 9, 11, 12 and 13 will be considered under the heading "incompetence of counsel." Grounds 8 and 10 will be considered under the heading "Section 293 of the Criminal Procedure Act" and Grounds 1, 3, 4, 5, 6 and 15 will be considered under the heading "unreasonable verdicts." Ground 4 will be dealt with as part of the application to seek leave to appeal against sentence.
It is noted that none of the 15 grounds upon which the applicant relies involves a question of law alone. It has been held that leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) is required to raise a ground of appeal involving a question of fact or of mixed law and fact: Rasic v R [2009] NSWCCA 202 at [12]. See also Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220 at [2]; Yacoub v R [2008] NSWCCA 164 at [2]; Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44] and at [68]-[71] and Carlton v The Queen [2008] NSWCCA 244 at [10]- [12].
In the present case, no point having been taken on behalf of the Crown and, in circumstances where the applicant was unrepresented on his appeal, it is appropriate that there be a grant of leave to appeal in relation to the grounds relied upon in the appeal against conviction.

Fresh evidence (Grounds 2 and 14)

Before turning to consider the evidence of the two witnesses relied upon by the applicant as "fresh evidence," it is pertinent to note the relevant principles regarding fresh evidence on appeal. These principles are well established in cases including Gallagher v R (1986) 160 CLR 392; Mickelberg v R (1989) 167 CLR 259 and Ratten v R (1974) 131 CLR 510. These principles were conveniently summarised by Kirby J in Abou-Chabake v R [2004] NSWCCA 356; 149 A Crim R 417 at [63] as follows "First, a distinction is made between "new evidence" and "fresh evidence". Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence. Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (supra) per Barwick CJ at 512). Third, the Court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, per Toohey and Gaudron JJ at 301). Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought. Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the Court's satisfaction, or the Court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the applicant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (supra) Barwick CJ at 518/519; cf Gibbs CJ in Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 398/399). Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively: Is the evidence fresh? If it is, is it "credible" or at least capable of belief (Gallagher v The Queen (supra) per Gibbs CJ at 395), or "plausible" (Mickelberg v The Queen (supra) per Toohey and Gaudron JJ at 301)? If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (supra) per Brennan J at 410) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (supra) per Mason and Deane JJ at 402)? See Mickelberg v The Queen (supra) per Toohey & Gaudron JJ at 301-302. Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (supra) at 517)."
Assuming that the evidence is "fresh" and also that it is credible or plausible and this Court admits it on the appeal, the question then is whether, in the context of the evidence given at the trial, it would have been likely to have caused the jury to entertain a reasonable doubt about the guilt of the accused or, to put it another way, whether there is a significant possibility that the jury, acting reasonably, would have acquitted the accused.
The fresh evidence relied upon by the applicant consisted of two statements: one from his ex-partner Tracey Goodwin and another from a man named Timothy Coulson.

Evidence of Tracey Goodwin

The applicant filed a signed statement of Tracey Goodwin dated 16 July 2013. This statement post-dates the applicant's trial, in which she gave evidence on 28 May 2013, by nearly two months. The statement is in the following terms: My name is Tracy Goodwin. I have been the partner of Kees Langelaar for 18 years. I regret giving testimony at Taree Court, where I stated I believe Kees had sex with the complainant. After counselling I can see I brought feelings of betrayal from the past into the present. I had no evidence. I saw nothing or heard nothing or have no other information. I gave this opinion from my own feelings of hurt and betrayal, where Kees has been unfaithful and betrayed me, many years ago. I'm sorry I contributed to Kees conviction and deeply regret being mistaken in my testimony. As a result I also feel impelled to give a statement about the difficulties in my sex life with Kees. Kees is 70. Sex has not been straightforward or consistent in recent years. Kees has been prescribed Viagra by various doctors. The last three years we have tried Viagra and he is more able to sustain an erection and without this he has difficulty. In hindsight, this is another reason I can see my feelings of betrayal from the past. With Kees sexual difficulties or level of sex drive, we have only had sex less than a handful of times in the last 18 months or so. Even then, there is an increased period of time to get to the point of readiness, especially when compared to a decade ago. I hope that this statement clears up my misunderstandings and any contribution I had in giving accidental though ungrounded testimony based upon my past feelings of betrayal. It is true that Kees has been an unfaithful and hurtful partner in the past, however this was only ever adults and never age inappropriate relationships. I'm sorry. Sincerely, Tracy Goodwin
Ms Goodwin was called to give evidence on the appeal. Before she gave evidence, a solicitor employed by Legal Aid NSW provided her with legal advice.
Ms Goodwin gave evidence that, although she signed the document, it was not drafted by her. She said, "It was drafted by Kees and by his friend." The friend was Daniel Armfield, who is both a friend of the applicant and her granddaughter's uncle. This occurred at the applicant's place. She gave evidence that she "wanted to decline it" but did not know when she was supposed to "say decline."
Ms Goodwin stated that she had attended the applicant's home to visit her daughter S who was residing with him. She went on to state: "Kees and his friend said that this would help him in his case but I said to him that - would this be any conflict of interest with the court papers that I made in the proceedings?
She was told there would not be any conflict. She also stated that she was on "really strong anti-depressants" at the time and only "read it today and realised that there was a conflict of interests."
The witness was given a warning under s 128 of the Evidence Act 1995 (NSW). She objected to giving certain evidence and a certificate under that section was granted to her. Of the three paragraphs in the statement she indicated that the middle one was true but the first and last were not. She confirmed that the applicant was able to get an erection, albeit with a degree of difficulty.
Given the fact that Ms Goodwin did not ultimately adopt the "fresh evidence" said to be a recantation of her evidence at trial, the evidence lacks any cogency. There is nothing in the evidence of Ms Goodwin which would lead this Court to conclude that, in the context of the evidence given at the trial, it would have been likely to have caused the jury to entertain a reasonable doubt about the guilt of the accused.

Timothy Coulson

The second witness relied upon by the applicant was Timothy Coulson. The applicant relied upon a statement of Mr Coulson dated 27 June 2013 (nearly a month after the trial) which was in the following terms: My name is Timothy Coulson and I live at 2/29 Florence Street, Taree. I am a friend of [the complainant] and I've known her approximately 7 years. I'm a friend of Kees Langelaar and I've known him approximately 9 years. On 14 May 2013, I was spending time with [the complainant] and asked, "What happened between you and Kees?" She said "nothing". I said, "Well what's happening with court?" She said, "I don't know, I'm not been told anything but nothing really happened." The conversation and moved on to other topics. For any further information please feel free to contact me on 0435 712 685 Timothy Colson 2/29 Florence Street Taree New South Wales 2430
The applicant's trial solicitor gave evidence on the appeal that he had asked the applicant to provide the names of any potential witnesses and Mr Coulson's name was never mentioned to him. There is no evidence before the Court as to how the statement came to be created, nor why it was not brought to the attention of the applicant's legal team at trial.
Mr Coulson could not be located to give evidence at the hearing of the appeal. The applicant had made no efforts to locate him. At a mention of this matter before the CCA Registrar on 22 April 2016, he told the representative for the Office of the Director of Public Prosecutions that Mr Coulson resided in Taree. Efforts were then made by police to locate the witness in Taree to no avail. When an affidavit to that effect was read by the Crown during the hearing of the appeal, the applicant raised for the first time the fact that Mr Coulson was now living in Forbes. In any event he did not attend this Court to give evidence concerning the statement said to have been made by him.
In circumstances where the witness did not give evidence in this Court and the Crown was not afforded the opportunity to cross-examine him, the Court does not propose to admit his statement into evidence on the appeal. It is not possible to determine its provenance or even whether it is "fresh" evidence.
In any event, even if the statement had been adopted by Mr Coulson and it was found to be credible, its contents are of little weight in the context of the evidence called at trial. The conversation contained therein could easily be explained on a number of bases including embarrassment on the part of the complainant and a desire not to talk about the subject matter any further. Even if it had been in evidence at trial, it would not have been likely to have caused the jury to entertain a reasonable doubt as to the applicant's guilt.
Grounds 2 and 14 pertaining to "fresh" evidence are not made out.

Incompetence of counsel (Grounds 7, 9, 11, 12 and 13)

A number of allegations are made by the applicant in the documents filed concerning his solicitor and barrister in support of a contention that his trial miscarried due to the incompetence of his counsel. There are considerable hurdles an applicant must clear in order to establish any ground of appeal asserting incompetence of counsel.
The starting point is that an applicant is usually bound by the way in which counsel conducts his or her trial. Counsel has a wide discretion to make decisions during the trial. As Gleeson CJ (with whom McInerney J agreed) observed in R v Birks (1990) 19 NSWLR 677 at 685: "2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."
In order to succeed in relation to the grounds of appeal alleging incompetence on the part of his counsel, the applicant must establish that the conduct of his counsel has led to a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912.
In TKWJ v The Queen [2002] HCA 46; 212 CLR 124, Gaudron J (with whom Gummow and Hayne JJ agreed) observed at [32]: "An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial."
Similarly, McHugh J observed the following in TKWJ v The Queen at [52]: "The decision not to call the good character evidence was a matter falling within the discretion of counsel as to how he would conduct the defence and did not constitute a material irregularity that led to a miscarriage of justice" His Honour went on to observe at [74]: "Ordinarily, a party is held to the way in which his or her counsel has presented the party's case. That is because counsel is in effect the party's agent. Counsel is "ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted." The discretion retained by counsel in the running of a case is very wide."
As Gleeson CJ later observed in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [9]: "A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v The Queen, the applicant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct" (citations omitted).
This Court has recently considered these principles in Alkhair v R [2016] NSWCCA 4, Vella v R [2015] NSWCCA 148, Ahmu v R [2014] NSWCCA 312, Outram v R [2013] NSWCCA 329 and Matthews v R [2013] NSWCCA 187.
The ultimate question for an appellate court is whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open.
Affidavits from the barrister sworn 7 April 2016 and the solicitor sworn 21 April 2016 were filed in the proceedings. Their affidavits were read at the hearing of the appeal and both lawyers gave further oral evidence.
There is authority for the proposition that affidavits from an applicant's previous lawyers should not be read on the appeal as a matter of course.
In Nudd v R, Gleeson CJ observed the following on the question of whether counsel should be called as a witness in appeal proceedings of this nature (at [10]): "To the extent to which it is reasonably possible, the focus of attention should be the objective features of the trial process. Nevertheless, there may be circumstances where it is relevant to ask why some act or omission occurred. In some cases, for example, it may be material to know that counsel took a certain course upon the instructions of the client. There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the enquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel."
Similarly, Gummow and Hayne JJ referred in Nudd v R to the applicant's complaints that his trial counsel had failed to give him proper advice and observed at [27]: "… a failure to give proper advice to the applicant would be significant only if, as a result of that failure, something was done or not done at trial that was, or occasioned, a miscarriage of justice. For the reasons given in TKWJ, the inquiry about miscarriage must be an objective inquiry, not an examination of what trial counsel for an accused did or did not know or think about. The critical question is what did or did not happen at trial, not why that came about."
In Matthews v R, this Court (Hoeben CJ at CL, Leeming JA and Beech-Jones J) observed the following at [63] in an appeal dealing with a ground of incompetence of counsel: "In conducting that inquiry a number of related matters should be noted. First, there is vested in counsel for an accused person control over and responsibility for the manner in which the trial will be conducted (TKWJ at [74] per McHugh J). Second, relevant unfairness will not be established simply because an 'apparently rational decision' by trial counsel produced adverse consequences for the accused (TKWJ at [16] per Gleeson CJ). Third, inquiries into the subjective thought processes of counsel for taking the steps they did at the trial are to be avoided. Instead the question is whether there could be a reasonable explanation for the course that was adopted at trial (Ali per Hayne J, with whom Gummow J agreed at [25]; TKWJ at [110] per Hayne J). If there could be such an explanation then no error or defect in the trial occasioning any miscarriage of justice is shown to have occurred (Ali id). Fourth, although the inquiry into whether there was an explanation for counsel's conduct is an objective one, there are some perhaps limited circumstances in which it is necessary for the appeal court to be apprised of material such as counsel's instructions (Nudd at [10] and [17] per Gleeson CJ)."
The question of the admissibility of such affidavit material on appeal was again considered by this Court in Ahmu v R, another appeal in which the applicant contended that he had suffered a miscarriage of justice as a result of trial counsel's incompetence. Basten JA rejected an affidavit sworn by trial counsel on the basis that it did not add anything to the inferences otherwise available from the course of the trial (at [31]). Adams J took a contrary view and considered the affidavit to be relevant and admissible (at [55]). Fullerton J found it unnecessary to express any concluded view on the question (at [87]).
More recently in Vella v R, another appeal involving an allegation of incompetence of counsel, evidence from trial counsel was admitted on the appeal. Beech-Jones J (with whom Gleeson JA and Hidden J relevantly agreed) noted at [94], after referring to the decisions in Matthews v R, that there was "…some scope for uncertainty as to the extent to which evidence from an applicant's former counsel and solicitor explaining their conduct can be received and considered in determining a complaint that a miscarriage of justice arose from it (see Ahmu at [31] per Basten JA and at [53] per Adams J)."
Finally, it is to be observed that the trial counsel and solicitor were both called to give evidence on appeal in the recent decision of Alkhair v R.
At least some of the allegations made by the applicant in this appeal could be resolved without the need to have regard to the evidence of the applicant's trial counsel and solicitor. Despite this, given the seriousness of some of the allegations made and the fact that, as the applicant was not represented, this issue could not be properly ventilated at the hearing of the appeal, I propose to refer to the relevant evidence given by the trial counsel and solicitor in determining these grounds. I do so having regard to the fact that the role for this Court is to undertake an objective inquiry regarding whether there was a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 rather than to conduct an inquiry into what trial counsel did or did not know or consider.
With the above principles in mind I turn to consider the various complaints made by the applicant concerning his counsel.

Key defence witnesses were not called at his trial

The applicant complains that the evidence of a witness named Rhonda Mills should have been adduced at trial. A statement made by Ms Mills dated 25 June 2012 and headed "Affidavit, Children and Young Persons (Care and Protection) Act 1998" was filed by the applicant with his other documentation. In it Ms Mills states that she knows the applicant and Ms Goodwin and through them met the complainant. She described the complainant as becoming one of her "Facebook" friends. Ms Mills did not allow her daughter to have her own Facebook account, requiring her instead to use Ms Mills' account. Anyone whom her daughter contacted therefore appeared on Ms Mills' Facebook feed. She states that the complainant became a Facebook friend "about a month ago" (which would have been a date in May 2012). She then states: "Not long after [the complainant] had become a "Facebook friend" of mine I saw a text message on her "Facebook Wall" as follows: "Shut the fuck up, you jealous bitches, I haven't slept with a 71-year-old man". When I looked again at her Facebook site that evening the message had been removed."
The applicant's solicitor gave evidence about this statement at the hearing of the appeal. He stated that he was aware of this statement because he prepared it in relation to care proceedings pertaining to the applicant's youngest daughter. He did not brief it to counsel for the applicant's trial. Consistent with this, the barrister's evidence was that he was not aware of this statement.
Two reasons were advanced by the solicitor as his explanation for not calling Ms Mills to give evidence at the applicant's trial. In his affidavit he set out his reason as being that it was hearsay evidence and hence inadmissible. Ms Mills had no evidence as to who the author of the alleged Facebook page was and relied upon her recollection. The solicitor expanded upon this during his evidence on the appeal, stating that the statement had in fact been tendered in the care proceedings in the Local Court. Those proceedings resulted in the applicant's youngest daughter being placed in the care of the Minister. The solicitor stated that when he sought to tender it the Magistrate's response was, "This is equally consistent with the complainant covering up for having had sex with a man of that age." The solicitor stated that the reason he did not seek to have Ms Mills called at trial was, "I thought it was dangerous because….it'd been tested by a tribunal of fact and it had, to, to my way of thinking it was damaging rather than exculpatory…From the words of the Magistrate it could have gone either way. So if I wasn't sure, if in doubt, don't."
On its face, and even without regard being had to the explanation of the solicitor, the fact that this statement was not briefed to counsel and the witness not called at trial does not amount to a miscarriage of justice in the context of the evidence given at trial.
This ground is not made out.

The applicant was not allowed to give evidence.

The applicant's barrister deposed that the applicant's instructions were that he did not want to give evidence. In addition, the applicant's solicitor deposed: "Both [the barrister] and I determined that when Kees was asked questions he was inclined to go into elaborate and self serving statements and submissions about the evidence and not answer the question that he was asked. We could not rely on him to give short succinct answers to questions that he may have been asked in cross examination. We were absolutely certain that allowing Kees to give his evidence before the jury would be a disaster and we determined that Kees would not give any evidence at the trial"
Consistent with the relevant authorities, the forensic decision as to whether an accused person should be called as a witness in his or her own trial is one for counsel to make.
Whether or not the applicant wished to give evidence, it would have been open to the applicant's counsel to conclude that there were disadvantages in calling the applicant to give evidence at trial given the allegations made in the Crown case. To the extent that it is relevant to this ground, it is noted that the applicant addressed this Court in the course of the hearing of his appeal. He volunteered his version of what occurred during the interrupted kiss incident outlined at [28]-[31] above. The applicant informed the court of the following: "Also, we had an imitation kiss, a pretending kiss and she was sitting on my lap so there's no way anyone coming in the room could have even seen that we were kissing, even if we were." He later said: ""I never kissed a girl ever. And she sat on my knee, the door is there and my daughter comes in and we pretended to kiss and she couldn't have seen anything of our kiss anyway. So that is - the whole thing is ridiculous"
The evidence at trial regarding the interrupted kiss was significant evidence in the Crown case. The applicant's daughter S gave unconvincing evidence that seemed to downplay the significance of it, but at no time was it put to her that she did not or could not have seen any kiss. On the contrary, the applicant's counsel called S in the applicant's case and adduced from her that all she saw a "peck". The applicant's explanation given on appeal was inconsistent with evidence called in his own case and quite implausible in the circumstances of the evidence given at trial.
No miscarriage of justice has been established regarding the fact that the applicant did not give evidence at his trial. This ground is not made out.

Medical records of erectile dysfunction and tremors

The applicant complained that his lawyers failed to adduce at trial medical evidence showing, inter alia, that he suffered from erectile dysfunction. He produced various medical records in support of this ground of appeal.
The evidence of both the applicant's barrister and solicitor was that the applicant at no time raised an issue of erectile dysfunction with them. The barrister gave evidence on the appeal that, "…that would have been something, of course, that I would have asked [the solicitor] to get some instructions about and, of course, it would have been an important aspect to raise particularly concerning the evidence of Tracey Goodwin, and that was never an issue." Similarly the solicitor gave evidence that he was aware of the possibility that the applicant had prostate cancer and was aware that he had "urination problems" but was provided with no medical evidence of this nor any material concerning possible erectile dysfunction.
As referred to above, Tracey Goodwin gave evidence on the hearing of the appeal that the applicant was able to get an erection, albeit with some difficulty. She stated that that part of her statement dated 16 July 2013 was true.
None of the medical records provided by the applicant supports the proposition that he was unable to sustain an erection at the time of the offences. They confirm that he was prescribed Viagra in 2010.
The applicant provided as part of his bundle of documents the letter of instructions to his legal representatives made prior to the trial. There is no reference therein to the question of any erectile dysfunction. The fact that the applicant made no mention of it at that time is consistent with the applicant not having any significant erectile dysfunction at that time.
Furthermore, and in any event, of the five counts in relation to which the applicant was convicted only two of them included an assertion that the applicant had an erect penis: count 3 was an allegation that the complainant stroked the applicant's penis until he ejaculated and count 5 was a count regarding an act of fellatio. The other three counts in relation to which the applicant was convicted involved an allegation that the applicant digitally penetrated the complainant's vagina. In those circumstances, even if some form of erectile dysfunction could be established (which is not the case), it was not relevant to three of the five counts upon which he was convicted
No miscarriage of justice occurred as a result of the absence of medical evidence at trial. This ground is not made out.

Counsel and solicitor pressured him into making a confession

The applicant alleges that his lawyers forced him to confess his guilt to the Probation and Parole Officer. There is also an allegation that they pressured him to plead guilty before the trial. These two specific complaints appear to form part of a larger complaint that the applicant's legal team did not try hard enough to secure an acquittal because they believed he was guilty.
The two specific complaints made by the applicant as part of this ground could not of themselves be relevant to the question of whether the trial miscarried. The fact is that the applicant did not plead guilty and his trial proceeded. Similarly, the allegation that he was coerced into making a false confession to the Probation and Parole Officer is said to have occurred after the trial, so that could not be relevant to whether the trial miscarried. Despite this and in circumstances where the central complaint appears to be one of counsel generally not defending him properly because of a belief in his guilt, I will address the allegations as part of the question of whether the applicant has established that his trial miscarried due to some general approach taken by his legal team.
The background to the most serious allegation made by the applicant is as follows.
Upon the applicant's being found guilty by the jury on 31 May 2013, a Pre-Sentence Report was ordered and the proceedings stood over for sentence. The applicant's bail was continued. When the matter came on for sentence on 12 July 2013, the transcript of proceedings on that day records that the applicant's counsel and his solicitor withdrew from the matter due to an "ethical issue."
The applicant having now waived privilege in relation to that issue, the applicant's barrister explained what occurred in his affidavit sworn 7 April 2016. He states that, on 31 May 2013 following the verdict, the barrister, solicitor and applicant held a conference at the Taree court complex. The barrister deposes: "At this conference the Applicant said words to the effect of "I'm glad it's all over, I know I should never have had sex with her, I just couldn't help myself, we felt really close to each other". My advice to the Applicant was to point all those aspects out to the Probation & Parole Officer and that it would be reflected in the Pre-Sentence Report (PSR) that would be relied upon in sentencing. I recall the Applicant commenting that he was relieved to be able to be truthful about the situation and that he would be truthful with the Probation and Parole Officer. I am certain [the solicitor] made contemporaneous notes of these discussions. I think it was on the morning of the sentencing of 18 July 2013 I received a copy of the PSR which detailed the Applicant's version which conflicted with his instructions after he had been convicted. [The solicitor] and I arranged for a conference with the Applicant at the Downing Centre court complex as soon as we could. In that conference, which was also attended by a number of the Applicants "friends", the Applicant was taken to the substance of the PSR and the conflicting accounts provided by him for that report. The Applicant and a Mr Armfield were particularly critical of myself and [the solicitor] alleging that we had forced the applicant to provide a false account to the Probation & Parole Officer. I told the Applicant that I would be seeking to withdraw before Williams DCJ that morning and that he would need to communicate to Legal Aid NSW to seek to obtain alternate legal representation".
The solicitor's affidavit did not refer to the above conversation nor did he give evidence about it. He stated, "I admit that after the verdict that [sic] I advised him to carefully consider his position. At no point while I was instructed by Kees did I ask him to confess to the offending or prepare a confession."
A Pre-Sentence Report dated 8 July 2013 was subsequently prepared by Alan Lyness, Probation and Parole Officer from Taree District Office, which included the following under the heading "Attitude to the Offences:" "Initially when interviewed by this Service the offender denied that he had committed any offences. At a subsequent home visit interview he accepted full responsibility and gave a detailed account of his offending and expressed concern for the effect his offending behaviour may have had on the victim. Some days after this interview, he attended this office and stated that he wanted to retract that account and reiterate the fact that he was innocent of all matters. He stated that the reason he had previously accepted responsibility was based on advice he had received to the effect that the eventual sentence imposed would be more lenient if he was seen to be taking responsibility. Contrition does not appear to be a sentiment that the offender has dwelt [sic] upon given his apparent preoccupation with manipulating a favourable sentencing outcome"
The applicant asserts that his solicitor pressured him to admit that he was guilty for the purposes of the proceedings on sentence. In one of the handwritten documents relied upon by the applicant on his appeal entitled "Account of False events and occurrences," he asserts that: "The solicitor made up a guilty story for me and rehearsed it with me to give to the Probation officer and gave it to him. I thought about [sic] for a while overnight, the next morning I went back to the Probation officer and told him that I gave him a false statement that was made up by my solicitor and then I told him the real storey [sic] that was the truth and that I, not guilty"
The applicant relied upon the fourth and final page of what is clearly a four-page letter sent to him, presumably after trial, by his solicitor. That page was randomly included in a bundle of documents with no explanation regarding its provenance. The applicant did not provide the previous three pages of the letter. Despite being given the opportunity to go through his papers to locate the rest of the letter, he informed the Court that he could not locate it. The solicitor was also asked to locate it, but he gave evidence that he had moved offices a number of times since this trial and was now retired. He has been unable to locate the applicant's entire file in relation to this matter.
The page the applicant provided to the Court was in the following terms: -4- That you have accepted responsibility for the offending; That your relationship with your then partner, Tracey Goodwin, had completely deteriorated and you were very stressed and emotional as a result; That you are extremely remorseful and regretful for the offending and the distress that was caused to the complaint [sic]; That her attentions were extremely flattering to you; That you thought that you were being encouraged by her and that your better judgment was overborne; That you were tempted and could not resist the temptation; and That you were an adult and should have exercised the appropriate behaviour towards the complainant For your assistance, I enclose copies of the following documents Police Facts Form of Indictment Criminal Record Yours faithfully [Solicitor]
The copy of the document provided to the Court by the applicant had a significant amount of additional handwriting over it consistent with the handwriting of the applicant elsewhere on handwritten documents filed in this appeal, including words such as "Bullshit Storey (sic) I was intimidated to give to Allen my Probation Officer…" etc.
It is unfortunate to say the least that the rest of the letter was not made available to the Court by the applicant. In circumstances in which the solicitor has not been able to locate any of his file, the only potential avenue from which the rest of the letter could be sourced was the applicant.
There are two inferences that could be drawn from the document "page 4" (putting to one side the additional handwriting). Although the applicant did not expressly make this submission, implicit in his complaint is an assertion that the letter supports his claim that his solicitor made up a story for him to tell the Probation and Parole Officer and recorded the contents of the fabricated story in a formal letter signed by him in his capacity as his solicitor.
The alternate inference is that "page 4" is part of a letter sent to the applicant following the trial confirming the conversation the applicant had with counsel to which counsel deposes in his affidavit. That is, that the applicant confessed his guilt and was advised to repeat that confession to his Probation and Parole Officer.
Taking into account all of the above I am satisfied that the document "page 4" formed part of a letter confirming the details of the applicant's conversation with counsel. To the extent necessary in order to deal with this ground of appeal, I reject the allegation made by the applicant that his solicitor and his counsel somehow forced the applicant to tell a false story to the Probation and Parole Officer.
Similarly, I am satisfied that the applicant's lawyers did not put pressure on him to plead guilty. Both the barrister and the solicitor deny this allegation. They both provided evidence that they had given the applicant advice about the implications on sentence flowing from a plea of guilty (being advice they are required to give in all trial matters). Even if they had placed pressure on him to plead guilty, which I do not accept, there is nothing in the transcript to establish that the applicant's counsel did not do anything but conduct a vigorous and spirited defence to the charges.
Having regard to the trial transcript, the thorough cross-examination of the Crown witnesses, in particular the complainant and Ms Goodwin, and the opening and closing addresses on behalf of the applicant and also noting the fact the applicant was in fact acquitted of Count 6, I am satisfied that there is nothing about the way in which the trial was conducted that gave rise to any miscarriage of justice. On the contrary, the applicant's defence appears to have been conducted in a highly competent manner.
This ground is not made out.

Good character evidence not introduced

The applicant asserts that statements from numerous community members regarding his "history of good parenting and supervision of their children were not taken into account." In one of his documents headed "Points of Interest," he claims he had a "complete file of references." The only character evidence filed on the appeal by the applicant postdates the trial, being two affidavits of Daniel Armfield dated 10 June 2013 and 31 October 2013 respectively.
Both the barrister and solicitor deposed that they were not provided with any of the character evidence now raised by the applicant at the time of the trial. The solicitor deposed that he recalled telling the applicant on several occasions that any persons with evidence should attend his office and provide a statement and that for their evidence to be of any value they would have to be prepared to come to court and be cross-examined about it.
Some character evidence was called through the applicant's daughter S.
It is noted that the applicant has a prior conviction for a common assault.
The applicant did not give evidence at his trial nor did he participate in an ERISP. Accordingly, any character evidence would in any event have been relevant on the question of propensity rather than credibility: Melbourne v The Queen [1999] HCA 32 at [30]-[31]; 198 CLR 1 at 14.
In circumstances where the applicant did not provide any character evidence to his solicitor and/or barrister, it could not be said that the trial miscarried due to the incompetence of his counsel as a result of the evidence not being called. This ground is not made out.

The complainant and a Kia car

Although this complaint was not a ground of appeal, in the material provided to this Court there was complaint made that the complainant was not cross-examined about whether she made up the allegations in order to get victims' compensation and buy new Kia car. In a document headed "Comments of [the complainant] (not cross-examined or produced in court)," a conversation is recounted in which the complainant is alleged to have said to a friend on the telephone in the presence of the applicant, prior to the allegations made, "Really, you can get victim's compensation for that?" This conversation was said to have taken place after the complainant had told the applicant that she wanted a "new Kia" and got angry when the applicant said he could not afford one.
Both the barrister and the solicitor deposed to the fact that this conversation had never been brought to their attention. Consistent with this, it is not contained in the signed instructions provided to his counsel prior to the trial.
Whether or not this conversation took place, it was not brought to the attention of counsel, is not fresh evidence and the fact that it was not put to the complainant at trial does not give rise to a miscarriage of justice.

Conclusion regarding incompetence of counsel ground

None of the grounds alleging miscarriage as a result of incompetence of counsel have been made out.
Grounds 7, 9, 11, 12 and 13 are dismissed.

Section 293 of the Criminal Procedure Act (Grounds 8 and 10)

Grounds 8 and 10 assert that the applicant's counsel failed to adduce evidence of the complainant's prior sexual experience as well as statements from previous men in her family whom she had accused of sexual assault.
The evidence of both the applicant's barrister and solicitor is that none of this material was ever brought to their attention.
In any event, such evidence would not be admissible by virtue of s 293(3) of the Criminal Procedure Act 1986 (NSW), which provides: (3) Evidence that discloses or implies: (a) That the complainant has or may have had sexual experience or a lack of sexual experience, or (b) has or may have taken part or not taken part in any sexual activity, is inadmissible.
Although exceptions are provided for in s 293(4) and (6) of the Criminal Procedure Act 1986, there is nothing to suggest that the material would fall into any of those exceptions.
Section 293 has been held to preclude cross-examination about previous false complaints: R v M (1993) 67 A Crim R 549; R v Bernthaler (NSWCCA, Kirby P, Badgery-Parker J, Ireland J, 17 December 1993, unreported).
Grounds 8 and 10 are not made out.

Unreasonable verdicts (Grounds 1, 3, 6 and 15)

Encompassed in these grounds are assertions both that the verdicts were unreasonable and also that the acquittal on Count 6 was unable to be explained and hence the verdicts are inconsistent.
To the extent that the applicant complains that the complainant's evidence was uncorroborated (Ground 3), the requirement of corroboration of the evidence of a complainant has not been necessary for some time: see s 164 of the Evidence Act. It is noted that the trial judge gave a "Murray" direction at the trial: R v Murray (1987) 11 NSWLR 12; (1987) 30 A Crim R 315.
The applicant makes complaint that the complainant did not immediately go to a hospital and be examined in order to obtain forensic evidence (Ground 5). Although this fact made the Crown case weaker, it does not follow that the verdicts were unreasonable. Three of the counts did not involve an allegation that would have necessarily yielded forensic evidence in any event, being three counts of digital penetration.
The applicant relied upon the fact that the trial judge made an observation at the time of sentencing the applicant regarding his Honour's reconciliation of the verdict of not guilty on Count 6 with verdicts of guilty on Counts 4 and 5. The applicant relies upon these comments in support of a proposition that the verdicts are inconsistent. His Honour observed the following in his Remarks on Sentence: "It is somewhat difficult to understand the jury's verdict in regard to count 6. One possibility is that the defence highlighted the lack of forensic evidence such as DNA. Perhaps the jury expected DNA to have been able to have been found even weeks after the event. Another possibility is that evidence was given by Mr Langelaar's partner that the victim had shouted at her that she had sex with Mr Langelaar in their bedroom and their daughter's bedroom. His partner also gave evidence that Mr Langelaar had admitted to her on 16 June 2012 that he did have sex with the victim on three occasions, one being in the hallway, one in the pantry and there was another occasion but she could not remember where that place that was mentioned was… There was no count on the indictment that alleged sexual intercourse in the daughter's bedroom, the hallway or the pantry although the victim gave evidence that the counts on the indictment were not the only time that she was touched inappropriately. These varying scenarios may have been sufficient to raise a doubt as to the last count."
As was noted by the trial judge, in this case there is a proper way to explain the jury verdicts. The principles regarding the question of inconsistent verdicts are well established. In Mackenzie v R [1996] HCA 35; (1996) 190 CLR 348 at 367. Gaudron, Gummow and Kirby JJ observed the following: "…the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury."
Their Honours went on to observe at 368: "Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and common sense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty. More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. "It all depends upon the facts of the case". The obligation to establish inconsistency of verdicts rests upon the person making the submission"
The relevant test is whether the verdicts are an "affront to logic and common sense" and strongly suggest a compromise of the performance of the jury's duty. The focus is on any explanation for an acquittal, not a conviction: R v TK [2009] NSWCCA 151; 74 NSWLR 299 per Simpson J (with whom McClellan CJ at CL and Latham J agreed) and Raumakita v R [2001] NSWCCA 126; 210 A Crim R 326 at 35 per Johnson J (with whom Hoeben CJ at CL and Button J agreed).
Having regard to the fact that there are explanations for the verdict of acquittal on Count 6, I am not satisfied that the jury compromised its verdict in relation to Count 6 in any way.
As for the other grounds alleging, in effect, that the jury should not have convicted him, I approach this task in accordance with the well-established principles in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 and SKA v The Queen [2011] HCA 13; 243 CLR 400. This Court is required to examine all of the evidence and determine whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The relevant principles were recently re-stated by this Court in Elwood v R [2016] NSWCCA 18 by Meagher JA (with whom McCallum and Button JJ agreed) as follows: "21 The question for this Court is whether it was open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt; in other words, "whether the jury must, as distinct from might, have entertained a doubt about the applicant's guilt": Libke v The Queen [2007] HCA 30; 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Heydon J relevantly agreeing), citing M v The Queen [1994] HCA 63; 181 CLR 487 at 492-493. 22 In answering that question the Court has to make its own independent assessment of the sufficiency and quality of the evidence: SKA v The Queen [2011] HCA 13; 243 CLR 400. In doing so, it is required to give full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, and has had the advantage of having heard and seen the witnesses: M v The Queen at 493. Ordinarily a reasonable doubt entertained by this Court would be one which the jury also ought to have experienced, except where the jury's advantage in seeing and hearing the evidence could have resolved that doubt. The jury's advantage is diminished but not removed where that evidence is or includes, as it does here, video recordings of police interviews given by the accused. However even where that is so, there remain the advantages identified by McCallum J in Hawi v R [2014] NSWCCA 83 at [480], which include, when evaluating all of the evidence, that of having seen other witnesses give any conflicting evidence."
The complainant gave evidence and was cross-examined. Hers was a cogent account of a relationship between her and the applicant, a much older man whom she regarded as a father figure. The context evidence shows a gradual sexualisation of that relationship. Some of this context evidence was observed by Ms Goodwin and was not disputed, such as that regarding the complainant walking around in her underwear and watching television under a blanket on the couch with her legs draped over the applicant's lap.
Although there was evidence of the complainant's mental health history and other attacks made on her credit, an examination of the transcript of the evidence she gave at trial as well as the transcript of her interview with police leads me to conclude that there was nothing about her evidence which meant it ought not to have been accepted. When it was put to her in cross-examination that it suited her to make an allegation against the applicant, the complainant said, "There is nothing I need to lie about, nothing. I'm trying to do my HSC, and I'm sitting here talking to you and you're calling me a liar. I'm not lying about anything. No one wants to be in this position…"
The evidence of Ms Goodwin as to admissions made by the applicant, whilst not accepted expressly in relation to Count 6, were nonetheless still capable of being relied upon in general terms. Ms Goodwin was cross-examined vigorously and maintained her version of events. She denied that she had misinterpreted the relationship between the applicant and the complainant.
Of particular significance in the narrative was the evidence of the interrupted kiss. Three witnesses gave evidence of this: the complainant, Ms Goodwin and S. Even though the applicant's daughter S sought to downplay the event in her evidence in court, the fact remains that she saw something that she immediately reported to her mother.
Having had regard to all of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. These grounds of appeal have not been made out.

Conclusion regarding conviction appeal

None of the grounds of appeal against conviction having been established, the appeal against conviction is dismissed.

Application for leave to appeal against sentence

The focus of the applicant's written submissions and before this Court was on the appeal against conviction. By the time of the applicant's proceedings on sentence he was represented by different lawyers from those who represented him at trial.
Of the 15 grounds of appeal relied upon by the applicant, only Ground 4 was referable to the proceedings on sentence: Ground 4: His Honour at the sentence hearing wrongly stated that I had self confessed when he was accepting a statement made by my ex partner which was not a confession by me to the court
This complaint can be easily dealt with. It is no doubt a reference to the fact that, during the Remarks on Sentence, Williams DCJ referred to the evidence of Ms Goodwin and the confession made to her by the applicant. At no stage did his Honour state that the applicant had confessed "to the court." No error by his Honour is disclosed in this regard.
No other grounds of appeal are relied upon. Nor does the applicant assert that the sentence imposed on him was manifestly excessive.
The applicant was sentenced in relation to five sexual assaults on a child. The four offences contrary to s 66C(4) of the Crimes Act carry a maximum penalty of 12 years' imprisonment and the offence contrary to s 61M(2) of the Crimes Act carries a maximum penalty of ten years' imprisonment with a standard non-parole periods of eight years' imprisonment.
It is noted that the applicant's non-parole period expires on 10 November 2016.
In circumstances where no grounds of appeal are relied upon, leave to appeal against sentence is refused.
I propose that the Court make the following orders: 1. Grant leave to appeal against conviction. 2. Dismiss the appeal against conviction. 3. Refuse leave to appeal against sentence.

Amendments 22 July 2016 - Catchwords added. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2016

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