R v Ali [2004] VSCA 58

2. On 3 April 2002 the applicant, Osoble Hassan Ali, who was born on 3 March 1972, and who had been committed for trial after a contested committal hearing, pleaded not guilty in the County Court at Melbourne to eight counts of rape and one count of false imprisonment. The trial proceeded. At the conclusion of the Crown case the prosecutor asked the judge to direct the jury to bring in a verdict of not guilty on count 2 on the ground that there was no evidence of the offence alleged in that count. His Honour agreed and directed the jury as requested. It returned a verdict of not guilty in respect of that count. The applicant neither called nor gave evidence in his defence. On 10 April the jury returned its verdicts, finding the applicant guilty of all remaining counts. After hearing a plea in mitigation of penalty on four occasions over an extended period due to the delay in the furnishing of a pre-sentence psychiatric report, his Honour on 22 August 2002 sentenced the applicant as a serious sexual offender by reason of convictions sustained on 15 September 2000 for offences committed in September 1997, imposing on him various terms of imprisonment and making directions for them to be served partially cumulatively, with the result that the total effective sentence was imprisonment for eight years and one month, in respect of which his Honour fixed a non-parole period of five years and four months. His Honour directed that the sentences imposed that day should be served concurrently with any sentence that the applicant was then serving.

5. By notices filed on 2 September 2002 the applicant sought leave to appeal against conviction and against sentence. He subsequently abandoned the latter application. On 12 March 2004 the Registrar granted him leave to add a sixth ground to the grounds of appeal in the notice of application touching conviction. Grounds 3, 4 and 5 are no longer pursued. The grounds now relied on accordingly are:

1. The Learned Trial Judge erred in law or in the exercise of his discretion in refusing to discharge the jury after there was a communication between a juror and a member of Counsel who was not connected with the trial about Defence Counsel and the conduct of the Defence.

2. The verdicts of the jury are unsafe and unsatisfactory.

6. Such fundamental errors were made in the legal representation of the Applicant before and during his trial for rape and false imprisonment that the Applicant did not receive a fair trial, and a miscarriage of justice occurred.

Particulars of errors made in the legal representation of the Applicant:

(a) Counsel presented inconsistent defences at the committal, in the defence responses to the prosecution case statement, and at trial, being first, a defence that no sexual intercourse had taken place, and second, a defence that the sexual intercourse which took place had been consensual.

(b) Counsel failed to object to the reception into evidence of all or part of a "field interview" conducted at the Applicant's home. In the field interview, the Applicant denied that he had engaged in sexual intercourse with the complainant; these denials were inconsistent with the defence relied on at trial, namely consent, and were relied on by the prosecution as lies from which a consciousness of guilt could be inferred.

(c) Counsel failed to object to the reception into evidence of all or part of the subsequent record of interview. In the record of interview, the Applicant again denied that he had engaged in sexual intercourse with the complainant.

(d) Counsel failed to lead any evidence capable of explaining why, consistent with him being innocent on the basis of a defence of consent, the Applicant might have denied having engaged in sexual intercourse with the complainant.

(e) Counsel failed to lead any evidence capable of supporting the defence of consent.

17. To deal with these grounds it will be necessary to refer in some detail to certain occurrences during the trial, but so far as the evidence of the offending is concerned the following summary is sufficient. The complainant, a young woman, gave evidence of meeting a man, who proved to be the applicant, in a hotel in Bourke Street, Melbourne during the early hours of Wednesday 2 August 2000. She was not interested in his company when he first approached her, but about 5.00 am., when she was looking for her male friend who had been drinking very heavily, the applicant offered to help her find him and when that was not successful offered to buy her breakfast, which she accepted. After breakfast in a nearby restaurant the applicant suggested that she share a "joint" of marijuana and that they take a taxi to his flat in Kensington for that purpose. This they did, arriving around 7.30 am. to 8.00 am. There, after an initial period of friendly conversation, the applicant raped the complainant seven times, penetrating with his penis her vagina (counts 1, 3, 5 and 7) and her anus (counts 4, 6, and 8). These offences occurred between 8.00 a.m. and 3.00 p.m. During the course of these offences he prevented her from leaving the flat, at one stage threatening to throw boiling water over her, and afterwards he continued to detain her, until finally, close to 5.00 p.m., he let her walk out (count 9, false imprisonment). She had told him that she was a lesbian and did not wish to have sexual contact with a man. She gave evidence that she did not consent to the sexual penetrations. Upon leaving the flat the complainant telephoned a friend and told her that she had been raped. The friend gave evidence that she received the telephone call at 5.45 p.m. She and the complainant met at Flinders Street station by arrangement close to 6.30 p.m., when the friend found the complainant looking really upset. After the applicant had given her friend an account of the previous night, saying she had been raped "back and front", she reported her allegations to the police. The identification of the applicant was not an issue in the trial, and the complainant did not give evidence of it. Under cross examination she denied that she had in fact left the applicant's home at about 10.30 a.m. or 11.00 a.m. and also denied that there had been one act each of vaginal and anal penetration and that those acts had been consensual.

20. The complainant was examined that evening by a forensic physician, who took forensic samples. She found injuries to the complainant's anus and vagina due to blunt trauma (forceful contact with a blunt object), which was consistent with penile penetration within the last three days. The samples were later analysed by a forensic biologist. She found no evidence of seminal material in the vaginal and rectal swabs, but did find the applicant's DNA (the applicant having in the interview mentioned below agreed to supply a sample of saliva) in the swabs from the complainant's breasts and back.

23. The Crown led evidence in the form of video footage from a security camera at the South Kensington railway station which showed the complainant on a bench at 5.34 p.m. on 2 August and also showed her making two phone calls from a public phone and then boarding a city bound train.

26. Detective Senior Constable John Ardley and (then) Detective Senior Constable Sharon McKinnon attended the applicant's home on 7 August 2000 to execute a search warrant. In a tape recorded field interview, following caution and notification to the applicant of his rights, the applicant admitted that he had brought home a girl the previous Wednesday. He described their interactions in a manner broadly consistent, at first, with that of the complainant. He said that he was interested in the girl and described the things she had done, including kissing, that made him consider the interest was reciprocated. He stated that she had remained in the flat for about half an hour but then had left between 9.00 a.m. and 10.00 a.m. He denied that they had engaged in any form of sexual intercourse. The applicant was arrested and formally interviewed at the Melbourne C.I.U. offices, commencing at 12.56 p.m. He endorsed as correct the interviewer's review of the field interview and substantially repeated his original account. He repeated his denial that the pair had engaged in sexual intercourse. He denied that either of them had removed their clothes at any time or that he had held the complainant in the flat against her will. He said that she left before 10.00 a.m.

Ground 6: Advising applicant against giving evidence

30. I turn now to the grounds, taking them in the order in which they were argued. Although other conduct of counsel was relied on as lending general support to ground 6, the particulars under that ground fall into two categories, each category being concerned with one aspect of counsel's conduct. Particulars (a), (d) and (e) relate to the defence that was put and how it was put. I take this category first. Although Mr. Palmer for the applicant recognised that addressing on facts of which there was no evidence was not included in the particulars, he indicated a desire to rely also on that in this connection as a fundamental error in its own right.

33. The particular facts bearing on this part of ground 6 need to be stated. It appears that at the committal at the end of October 2001 counsel for the applicant, who was his counsel at the trial, though not on this application, put to the complainant in cross-examination that the intercourse between her and the applicant was consensual. (Counsel for the applicant informed this Court that it was also put at the committal that no intercourse had occurred between them, and perhaps this is indirectly suggested by the questioning of the complainant based on the location on her body of the DNA of the applicant that was found.) In the defence response to the summary of the prosecution opening pursuant to s.7 of the Crimes (Criminal Trials) Act 1999 dated 24 January 2002 the defendant denied that anal intercourse took place, denied that sexual intercourse took place on the number of occasions or over the period of time as alleged by the complainant and denied that at any time he restrained her against her will from leaving the flat. An amended defence response dated variously 17 and 19 February 2002 was filed. In it the defendant admitted that anal intercourse took place on one occasion and that this was consented to and initiated by the complainant. The denial of sexual intercourse set out earlier remained, but was followed by an added paragraph stating that the defendant admitted that vaginal intercourse took place on one occasion and that this was consented to and initiated by the complainant.[1] In the opening statement by defence counsel at the commencement of the trial the jury was told that the defence case was that the intercourse was consensual. As already indicated, the applicant did not give evidence. Immediately at the conclusion of the Crown case about 3.30 p.m. on 8 April 2002 defence counsel had informed the court that the defence would not be calling any evidence. Accordingly, it would seem likely that the final advice against giving evidence was tendered, and the decision taken in accordance with it, during the luncheon adjournment on that day. In her closing address counsel for the applicant told the jury that he was frightened (at the time of the interviews) and that it was only afterwards that he indicated, "I'd better fess up, there was consensual sex", counsel saying, "Those are my instructions". The prosecutor complained because there was no evidence to suggest that there was consensual intercourse or to support the elaboration which counsel went on to make of the consensual nature of the intercourse. The prosecutor sought, and was granted, leave under s.417(3) of the Crimes Act 1958 to make a supplementary submission to the jury confined to replying to the assertion of "relevant facts ... which [were] not supported by any sworn evidence that [was] before the jury". After the prosecutor had addressed the jury briefly his Honour commenced his charge. In it, besides giving the standard direction that comments and arguments of counsel are not evidence, his Honour referred in that connection to the prosecutor's further address. Moreover, when summarising counsel's addresses to the jury, his Honour pointed out that the prosecutor had emphasised that there was no evidence before them that consensual intercourse took place in the applicant's flat, adding, "That is, of course, correct." In summarising the address for the defence his Honour referred to counsel's assertion that the applicant said that consensual intercourse had taken place and stated that of course there is no evidence to that effect and that as a result of that the prosecutor had been allowed to address the jury a second time.

36. In support of his application for leave to appeal an affidavit affirmed by the applicant on 15 March 2004 was filed. In it, so far as presently relevant, he stated:-

"4. When I was interviewed by the police I didn't understand some of the questions and I was scared and I panicked. I didn't know what to do. 5 .... 6. .... 7. At my trial, I wanted to give evidence to explain what happened, but my lawyer, [naming her], decided that I wouldn't. 8. She told me that if I did give evidence, I might get in more trouble. She said if I did not give evidence it would be ok. 9. She did not tell me that if I did not give evidence I might get convicted. 10. If she had said that if I did not give evidence I might get convicted, then I would have given evidence."

As counsel for the respondent pointed out, the applicant's affidavit (particularly in paragraphs 7 and 10) was not clear as to whether it was being asserted that the applicant decided not to give evidence on the basis of strong advice tendered to him by his counsel or, as the argument to that point had seemed to suggest, whether it was being asserted that the applicant had been deprived of the right, which was his, to decide whether to give evidence in his own defence. Counsel for the applicant stated that he was content for the application to go forward on the basis that counsel gave the applicant strong advice against giving evidence and he went along with that. That was acceptable to counsel for the respondent, who, in light of the agreement reached, did not object to the reception of the affidavit. I proceed on the agreed basis.

41. Counsel who appeared at trial was furnished by the applicant's present solicitors with a copy of the notice of application for leave to appeal and the Registrar's order adding ground 6 and was informed of the date fixed for the hearing of the application. She declined to respond.

44. There was no evidence before this Court as to whether the solicitor instructing the applicant's trial counsel was party to the advice against giving evidence or present when it was tendered.

47. The principles applicable to a consideration of ground 6 have recently been clarified by the High Court in TKWJ v. The Queen[2]. The ultimate question raised by the ground is whether "on any ground there was a miscarriage of justice" within s.568(1) of the Crimes Act. It is not necessary for an applicant to demonstrate that the conduct of the trial by his or her counsel involved "flagrant incompetence" or "egregious error" or the like.[3] Although McHugh, J. took a slightly different approach on one or two aspects of the relevant reasoning, it may, I think, be said that TKWJ relevantly establishes the following. First, where (as here[4]) the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed, that is, where the trial was otherwise regular, the question for an appellate court when the conduct of the case by defence counsel is called in question is whether that conduct, objectively viewed, was reasonable or capable of explanation on the basis that it could have resulted in a forensic advantage or the avoidance of a forensic risk. Secondly, where (as here) the conduct in question is the failure to call certain evidence, even if the first question be answered in the negative, a miscarriage of justice will not have been made out unless that evidence is such that, when it is viewed in combination with the evidence given at trial, the jury would have been likely to entertain a reasonable doubt about the guilt of the applicant if the further evidence had been before it.[5] This may alternatively be expressed as being that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant.[6] McHugh, J. stated the question as being whether there is a significant possibility that the irregularity affected the outcome.[7] Mr. Palmer advanced an appealing argument, by reference particularly to Mickelberg[8] and Gallagher v. The Queen[9], that the correct test was whether there is a significant possibility that the error affected the outcome of the trial. I am prepared to adopt that test for the purposes of this case. Finally, as McHugh, J. pointed out in TKWJ[10], an applicant contending that the conduct of his or her counsel has caused a criminal trial to miscarry carries a heavy burden.

50. I turn to apply the principles stated in TKWJ. An immediate difficulty confronts the applicant. There is no admissible evidence of the evidence which he would have given had he been called at the trial. His affidavit did not go beyond mentioning "evidence to explain what happened". Particularly in light of the way in which, as revealed by the trial transcript, the defence response came to be amended, one could have no confidence that the quoted expression meant evidence that any intercourse that occurred was consensual. The absence of evidence was raised by the Bench with counsel for the applicant more than once. He stated that he had decided in drawing the affidavit not to put his client on affirmation as to the evidence the latter stated he wished to give but had, rather, used what I would call a compendious but quite unspecific phrase, because an affidavit which stated the evidence desired to be given "could hamper re-trial counsel". I do not see that a statement that what happened was, for example, that there was one instance of anal intercourse and one of vaginal intercourse, each of which was consensual, or that there were several instances of both kinds of intercourse, all being consensual, would in this case hamper or embarrass counsel at the re-trial if the one or the other of those versions were the real instructions of the applicant. A full circumstantial account is not necessarily required, but an applicant should vouchsafe to the Court at least the essence of the evidence he claims to have wished to give. As counsel for the respondent stated, when seeking a re-trial an applicant should not be coy. No application was made to file a further affidavit.

53. It was submitted that the Court should assume that counsel was correct as to her instructions[11] and should infer that the applicant would have given evidence in accordance with them. In my view, if the heavy burden of showing a miscarriage is to be discharged there must be evidence of what would have been placed before the jury. Only then can a proper determination be made whether there is a significant possibility that the evidence would have affected the outcome. Assumption and inference are insufficient. Forensic experience teaches that clients not infrequently do not swear up to instructions. Nor do I see how counsel's statement at the trial, "those [scil., `there was consensual sex'] are my instructions", can supply the deficiency. For the statement is not evidence of the underlying fact or indeed of the instructions. Moreover, what the instructions were said to be seems from opposing counsel's note of the statement, read into the transcript, to go beyond one act of anal intercourse and one act of vaginal intercourse. Alternatively, if they are limited to one act of each kind, they say nothing as to the other incidents sworn to by the complainant.

56. The evidence in the present case, such as it is, may be contrasted with the evidence before the appellate courts in R. v. Kyriacou[12] and R. v. N[13] and the Privy Council in Sankar v. State of Trinidad and Tobago[14], three cases concerning trial counsel's failure to call the accused that were relied on for the applicant on this branch of the argument. In the first there were numerous affidavits, including three sworn by the appellant, and oral evidence was taken by the Court of Criminal Appeal from the appellant and his former counsel. In the second there were the appellant's written instructions which contained a denial of each of the complainant's allegations, an affidavit by the legal officer instructing at trial, and an affidavit from the appellant's father deposing to evidence tending to support the appellant. In Sankar there was an affidavit from the appellant stating the essence of the evidence he wished to give. Here, it is quite uncertain whether evidence explaining "what happened" (to use the applicant's words) would have proved to be evidence of one act only of anal intercourse and vaginal intercourse with consent or evidence of numerous acts of each kind, all with consent, or evidence in accordance with the applicant's interviews, that is, evidence denying any intercourse. The principles applicable to the present application require this Court to consider whether the advice not to give evidence was objectively explicable and, if that is answered negatively, to consider whether there is a significant possibility that that advice might have affected the result (to take the formulation most favourable to the applicant). Unless one knows what was the evidence that the applicant would have given it is obvious that no sensible conclusion can be reached on either question and in particular no conclusion favourable to the applicant.

59. There was an indication in the applicant's affidavit of the evidence that the applicant would have given to explain his denials to the police of any intercourse if he had given evidence that there had been two - or more - acts of intercourse with consent. But without evidence of what the latter evidence would have been the former evidence leads nowhere.

62. In my view, therefore, this part of ground 6 cannot succeed. I shall, however, go on to consider it on the assumption that this Court should be satisfied on the balance of probabilities that the applicant desired to give evidence in accordance with the amended defence response. I shall in addition assume that the applicant also wished to give evidence to the effect that his denials of any intercourse were (as his affidavit may suggest) made because he was frightened by the involvement of the police.

65. As already appears, at trial counsel presented a defence of consent, but failed to lead any evidence to support that defence and in particular to call the applicant to testify as to that. The result was there was no evidence before the jury that the complainant had consented. Nor was there evidence from the applicant as to why he had told the police during the two interviews that no sexual intercourse took place. It was submitted for him in an attractive argument that, in light of this, it cannot be said that the failure to call the applicant was "an informed and deliberate decision" or a "rational tactical decision", to use the words of Gaudron, J. and Gleeson, C.J. respectively in TKWJ[15], or that it was explicable on the basis that it could have resulted in a forensic advantage. It did not, and could not, have done so, it was contended. Indeed, it resulted in a substantial forensic disadvantage to the applicant in that, besides the absence of evidence on the two matters above-mentioned, the prosecutor was permitted to address the jury a second time and the judge reminded them that there was no evidence of consent. Further, according to the applicant, counsel's advice did not include advising him of the risk of conviction if he did not testify. It was submitted that there was a significant possibility that the failure to call the applicant to give evidence affected the outcome of the case. Indeed, it was submitted, as a matter of practical reality that failure made his conviction all but inevitable. The court could not, it was submitted, be satisfied that the applicant had had a fair trial, to which he was entitled.

68. In support of ground 6 reference was made on behalf of the applicant to a number of other aspects of the case as supporting the "concerns" raised by the ground themselves, and there may have been others. It was not contended that these aspects had in themselves given rise to a miscarriage of justice. Rather, it was submitted that they were matters which the court might take into account in deciding whether or not the aspects of counsel's conduct of the defence that were raised by the ground were explicable on a reasonable basis. Listed summarily and without reference to supporting passages or documents the other aspects are:

(i) counsel seemed to suggest that the main reason why the defence response had been changed from a denial of intercourse to a defence of consent was a misapprehension of the prosecution case and, further, statements made by counsel to the trial judge raised some concerns about the instructional base of the defence of consent;

(ii) counsel failed to make a no case submission in relation to count 2, it being the prosecutor who drew attention to there being no evidence in support of it;

(iii) counsel failed to pursue evidence that the complainant had also formed heterosexual relationships, which might have explained the injury said to have been caused by the rapes;

(iv) the prosecutor expressed reservations about the competence of counsel, even in the presence of the jury;

(v) both the prosecutor and the trial judge found it necessary to intervene to ensure that counsel did not elicit information from a police witness about the applicant's prior convictions;

(vi) some of the questions asked by counsel during cross-examination were indefensible.

74. In response, counsel for the respondent submitted that a ground of this nature did not make necessary a general survey of the competence of counsel. He relied particularly upon the judgement of Hayne, J. in TKWJ (agreed in by Gummow, J.) and especially the statement[16]:

"The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?".

He postulated a difficult cross-examination of the applicant on many points, acknowledging that those points were not unanswerable but submitting that they mounted up. They were over and above the lies and the two defence responses.

79. Accused persons are frequently not called as witnesses. If the defence had been that there was no intercourse it would be unexceptionable if the applicant had not been called to give evidence, for the defence would have been able to rely upon the denials in the field interview and recorded interview. But that was not the position here. It is, in my view, , a matter of considerable force in judging the objective reasonableness of the advice not to give evidence that, where the defence was consent to such intercourse as occurred, it would have been clear at the time at which it seems the final advice was tendered both that little headway had been made by defence counsel in cross-examination of the complainant and that there would be no evidence of consent and none explaining the false denials unless the applicant gave evidence. Mr. Palmer accepted that there was a risk that the applicant would prove a bad witness, but submitted with force that where the choice was between all but inevitable defeat and possible victory one had to take a risk. Although the answer to the first question which arises on the assumption now being made is finally balanced, I am not in the end persuaded that there could not be a reasonable explanation for advising the applicant not to give evidence. I consider that competent counsel could reasonably have taken the view that it was better not to risk the possibility of strengthening further a strong Crown case by submitting the applicant to what would clearly have been a difficult cross-examination but, instead, to seek in the address to engender in the minds of the jury a reasonable doubt as to the absence of consent on the basis, amongst other things, of matters such as the psychological condition of the complainant, the critical witness for the prosecution; her preparedness to have breakfast with, and to go to the home of, a previously unknown person for the purpose of smoking cannabis, buying alcohol on the way; and the fact that she had only the day before separated from a relationship in which the blunt trauma might have been sustained. With regard to the false denials the jury might reasonably have been invited to think, having the recordings of the field and formal interviews, that the applicant may have made and repeated a blanket denial out of panic or fright at coming under investigation by police. None of this would have involved the giving of evidence as to instructions from the Bar table. For the foregoing reasons I would answer the first question, if it arises, against the applicant.

82. By concluding that there could be a reasonable explanation for the advice given by counsel I do not at all mean to suggest that advice that he should give evidence would have been in any way inappropriate. I should add that I have not based myself on the possibility that the applicant had informed his counsel that he was not prepared to give evidence on oath or affirmation of consent. If that occurred, it would be an objectively reasonable explanation for the advice, but whether it occurred is speculative.

85. The possibility was raised during argument that counsel's advice against giving evidence may have been based upon a mistaken understanding that in her final address she could refer to her instructions. To have regard to that possibility would, in my respectful opinion, be to enter into "an inquiry into the subjective thought processes"[17] of defence counsel. That would certainly be contrary to the views of Gummow, J. and Hayne, J. and, I think, at least also Gleeson, C.J. in TKWJ.

88. The conclusion reached above on the first question means that the second does not fall for consideration. But, in case I be wrong about the first question, I proceed to the second, stressing all the while that the discussion of the two questions proceeds on the assumption stated in paragraph [17], which is an assumption contrary to my actual conclusion on this part of ground 6.

91. I am not persuaded that there is a significant possibility that the (presently assumed) erroneous advice against giving evidence affected the outcome of the trial. In other words, I do not consider that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant if he had given evidence before it. I say this because there are two aspects of the Crown case that the postulated evidence of the applicant would not, in my view, have been able to negative or to diminish or cast doubt on sufficiently for there to be a significant possibility of a verdict of acquittal. The first is the fact that the applicant stated in both interviews that no intercourse had occurred, which his defence of consent necessarily admits to be lies, from which the jury would have been entitled, following his Honour's directions, to infer a consciousness of guilt on the part of the applicant. I consider it unlikely that the jury would have been dissuaded from treating the lies as an implied admission of guilt by evidence that they were told under the influence of fright or panic, when they were repeated in the second and formal interview. Secondly, the applicant faced insuperable difficulties on timing. By reason of his answers in each interview he was committed to the complainant's leaving his flat before 10 a.m. and could not depart from this in any oral evidence. The applicant, however, said that she was not allowed to leave until about 5 p.m. and that she went straight to the South Kensington railway station from where she called her friend whom she later met at Flinders Street station. The friend gave evidence that she received a telephone call from the complainant at 5.45 p.m. The video footage from the security camera at the South Kensington railway station showed the complainant there at and around 5.34 p.m. and in particular showed her making telephone calls about that time. The jury would no doubt have thought it extraordinary if the complainant had left the applicant's flat before 10 a.m. but only reached the nearby railway station at about 5.30 p.m. The jury would have regarded the independent evidence of times and phone calls as strongly supportive of the complainant's credibility and of her evidence as to the length of her ordeal and also as severely damaging the applicant's credit.

94. Little mention was made in argument of defence counsel's addressing on facts of which there was no evidence. Assuming that it may be considered as allegedly constituting a fundamental error in its own right, it is sufficient to say that, whilst that conduct was, objectively, indefensible, it did not, in my view, affect the outcome of the trial and thereby give rise to a miscarriage of justice. This is because, although it led to the absence of evidence of consent being pointed out a second time by both the prosecutor and the judge, the prosecutor had already pointed that out once and the judge would have been obliged to mention it in his charge in any event. It was obvious without repetition.

Ground 6: Not objecting to evidence of interviews

98. I turn now to the other part of ground 6, that concerning failure to object to the reception in evidence of all or part of the field interview and the formally recorded interview. Both versions of the defence response stated that issue is not taken with the record of interview of the applicant. Paragraph 4 of the applicant's affidavit has already been set out. The next two paragraphs read:

"5. When they [the police] interviewed me at my house they told me that I had the right to contact a lawyer, but they did not ask me if I wanted to do that. 6. If they had asked me if I wanted to talk to a lawyer, then I probably would have said yes."

102. It was submitted for the applicant that, once a defence of consent was relied on, there was no possible forensic advantage to the defence in having the two records of interview admitted into evidence because they contained clear and explicit denials of any sexual intercourse, which would be inevitably relied on, as they were, by the prosecution as evidencing a consciousness of guilt, as should have been apparent to counsel from the prosecutor's opening address. It was therefore important, it was submitted, that any possible objection to the records of interview should be taken. In fact none was taken, even when the trial judge indicated that certain questions in each interview, being those asking why the complainant would have made the serious allegations she had against the applicant, might have been improper. It was submitted that counsel should have asked the judge to exclude the field interview in the exercise of the public policy discretion on the ground of failure by the police to comply with s.464C of the Crimes Act, in that the police had failed to ask the applicant whether he wished to exercise his rights (of which they had told him) and failed to defer the questioning in order to allow him to do so. Reliance was placed on Pollard v. The Queen[18]. It was further submitted that the record of interview subsequently conducted at the Melbourne CIU should also have been objected to, on the ground that it was substantially based on the field interview, and reliance was placed on Pollard[19]. There was, it was put, no possible forensic advantage to the applicant in cross-examining police about questions and answers as opposed to having the questions and answers entirely excluded.

105. In the written outline of submissions it was said that there was insufficient material before this Court to determine whether or not some or all of either or both of the field interview and the recorded interview should have been excluded by the judge in the exercise of either or both of the fairness and public policy discretions. It was not, therefore, submitted that the records of interview were necessarily wrongly admitted into evidence. There was, however, it was submitted, sufficient material to establish that there was a basis for the exclusion of some or all of this evidence; and there was a significant possibility that the exclusion of some or all of either or both of the interviews could have affected the outcome of the case. In oral argument counsel volunteered that the applicant probably would not succeed on the present aspect alone, though it was still kept open as an independent ground. It was pointed out that the difficulty was that not all the relevant evidence was before the court because a voir dire was never conducted.

108. It is clear that there was non-compliance by the police with s.464C, as expounded in Pollard, in the way asserted by counsel for the applicant. Further, especially as the field interview looked forward to the interview at the CIU offices and in the latter the substance of the earlier interview was confirmed, the questioning of the applicant in the later interview was in breach of the requirements of s.464C(1).[20] As McHugh, J. pointed out in Pollard[21], this is so notwithstanding that early in the field interview Detective Ardley said[22] to the applicant:

"Now, listen, you understand if at any time you change your mind and you don't want to talk to us any more, you can do that and if at any time you want to speak to a lawyer, solicitor, you can do that? So ...",

to which the applicant said "Yeah". This is also the case with the later interview even though at Questions 4 and 5 of it the applicant was told, amongst other things, of his right to communicate, or attempt to communicate, with a legal practitioner and was asked whether he understood the rights and wished to exercise any of them before the interview proceeded.

113. Where there has been non-compliance with s.464C(1), Pollard further establishes, partly by reference to the preservation by s.464J(c) and (d) of the discretion of the court to exclude unfairly obtained evidence and to exclude illegally or improperly obtained evidence, that whether otherwise admissible evidence of what is said in answer to questions asked in breach of s.464C should be received in evidence is to be determined by the general law, under which the trial judge has a discretion to exclude the evidence either because its reception would be unfair to the accused or on grounds of public policy. On the question how the discretions would have been exercised if they had been invoked, the submissions of the parties were quite opposed. For the applicant it was argued that there was a significant possibility that the interviews (or some parts of them at least) would be excluded, whilst for the respondent it was submitted that the facts were highly unlikely to enliven the discretion.

116. I agree with the submission for the respondent. As McHugh, J. pointed out in Pollard[23], it is in the context of discretions that Detective Ardley's stating early in the field interview and for a second time the applicant's right to communicate with a lawyer, with an implied invitation to exercise that right, and the terms of Questions 4 and 5 of the subsequent interview, have particular significance. The applicant, as the person who would be seeking the favourable exercise of the one or other of the discretions, would carry the ultimate onus on such an application, but, if, as McHugh, J. suggested[24], the obtaining of a confession or admission (including, I would suggest, through the showing of consciousness of guilt) in breach of s.464C is to be regarded as raising a prima facie case of unfairness calling for discretionary rejection, the prosecution would here discharge the evidentiary burden that thus shifted to it. This it would do because the failure to invite the exercise of the right and to defer questioning to enable the right to be exercised was cured by Detective Ardley's repetition and implied invitation and this occurred before any false denial had been made by the applicant. Even if that were, for some reason, considered insufficient, so that the discretion was exercised in favour of the exclusion of evidence of the field interview, the statement of the applicant's rights and the invitation to exercise them in Questions 4 and 5 of the later interview means that it would not be unfair to admit evidence of the applicant's answers in that interview, including his false denials, made after he had declined the invitation to exercise the right to communicate with a legal practitioner. In other words, the breach of s.464C would have been "irrelevant"[25] to the obtaining of the implied admission of guilt. I appreciate that it may be that, as explained earlier, the evidentiary onus would shift to the prosecution, albeit that it would not be the party seeking the favourable exercise of one or other discretion, but it can at least be said that, on the material available, there is no evidence that the non-compliance was other than unintentional. This is not a case like Pollard, where the detective's conduct was described as a deliberate and reckless disregard of the section. Rather, it falls within the class of case which McHugh, J.[26] contrasted with that case, namely, "a case where, despite the failure of investigating officials to inform the applicant of his s.464C rights before all questioning began, he was subsequently given that information" - and invited to exercise any of the rights - "before any damaging admissions were made".

119. Since Pollard the public policy and unfairness discretions have been further considered and partly amalgamated by the High Court in The Queen v. Swaffield; Pavic v. The Queen[27]. Speaking more generally, it may be said that the non-compliant conduct that was in question here was not such as to justify the favourable exercise of public policy discretion. So far as the unfairness discretion is concerned, that nowadays is directed to ensuring that the accused does not have a trial which is unfair. It is not directed to unfairness on the part of investigating officials. Here, where the applicant was invited to exercise his rights before he made any damaging false denials and was again invited to do so at the commencement of the later interview, it simply could not be said that the trial was unfair by reason of the admission into evidence of the two interviews.

122. The foregoing discussion of this part of ground 6 has proceeded largely as if the non-exercise of one or other discretion were being reviewed**.** But the applicant faces more stringent requirements when, as here, it is claimed that the conduct of trial counsel led to a miscarriage of justice. For TKWJ requires it to be shown that there could not be any reasonable explanation for that conduct. In my opinion, that simply cannot be established. It may be said that to have objected to the admission of the records of the interviews would have involved the departure from the original and amended defence responses. But let it be assumed that the challenge to counsel's conduct may go back to and include the drawing of those two documents (as she apparently did). Whilst counsel should do all that is reasonably possible and proper in the interests of their clients who are charged with criminal offences, they must in this age of lengthy and costly litigation exercise some responsibility in the points taken whether at trial or on appeal. I consider that the failure, even inadvertent, to object to the reception of the records of the two interviews, viewed objectively, was well capable of reasonable explanation in that the objection was most unlikely to be successful and it was desirable to avoid pointless expenditure of time and money. It should be added that, as the applicant's argument acknowledged, since the applicant would be relying on evidence that might be obtained on the voir dire and on the exercise of discretion, his argument was a two-step one, with the difficulties which that entails, somewhat like the unsuccessful argument relating to the failure to seek an advance ruling in TKWJ. Since the non-objection to the reception of the records of interview was, objectively, reasonably explicable, there is no need to consider the question whether there is a significant possibility that the failure to object affected the result of the trial, though, since any objection was not unlikely to have succeeded, I consider that that question would be answered negatively.

125. In each interview there was one question asking in substance for an explanation of why the complainant would make the very serious allegations against the applicant that she had made. That question should not have been asked. When his Honour raised the matter with defence counsel she answered that, since the answer given was not damaging, there is no decision to ask for them to be excluded. That may perhaps be accepted in relation to the question in the second interview. But in the field interview the question whether the applicant had any explanation for the allegations against him obtained the answer (as transcribed) "Um - no". That should have been objected to and his Honour clearly would have acceded to an objection. However, the short answer to this criticism of trial counsel is that the question and answer were insignificant in the total scheme of things[28], so that there was not a reasonable possibility that counsel's failure to object affected the result of the trial.

128. It was also submitted for the applicant under this ground that, whilst it is true that he had towards the end of the first interview and at the beginning of and a little later in the second interview denied that he needed an interpreter, if trial counsel was of the view (as it was submitted she was) that an interpreter should have been provided, then she should have sought to have the records of interview excluded on the basis that there had been non-compliance with s.464D of the Crimes Act or in the exercise of the fairness discretion. There is nothing in this point. Having read the transcription of both interviews and listened to passages from the tape recording of each, I am amply satisfied that the applicant had a good understanding and command of English, indeed, I would say, a facility with it. Further, the applicant made his affirmation without the intervention of an interpreter. Failure to seek exclusion under the fairness discretion for non-compliance with s.464D was capable of reasonable explanation. Seeking exclusion would have been unjustifiable.

131. I conclude on ground 6 that neither individually nor in combination did the aspects of trial counsel's conduct that have been criticised give rise to a miscarriage of justice, even after taking into account the matters listed in paragraph [19] above.

135. Immediately before the luncheon adjournment on the first day of the trial his Honour directed the jury that they should avoid having a casual conversation with any persons in or in the vicinity of the court, and further directed them that during the course of the trial they should not discuss it with any person other than their fellow jurors, which discussion should take place in the jury room in the presence of all jurors. The reason for that direction, his Honour said, was that their consideration of the issues was not to be contaminated by any external influences. At the close of proceedings on 8 April 2002 the prosecutor was part-way through his final address. Before the hearing resumed on the morning of 9 April his Honour informed counsel that his tipstaff had observed one of the jurors talking to a member of counsel in the foyer on the second floor. When he had approached them, counsel had said that the juror had asked some questions about the case, that he had declined to answer them, that the juror was an old friend and that they had gone on to discuss other matters. After taking instructions, counsel for the applicant applied for the discharge of the jury. The judge had the juror, who was in the jury room with the rest of the jurors, brought into court and ascertained from her the name of counsel, whom I shall call Mr. S. The judge asked the juror not to discuss whatever might have passed between Mr. S and herself that morning, not to communicate anything about that to the other jurors and not to communicate what had just happened since she was brought into court alone. The juror said that the barrister was a friend she had known for a long time but had not seen for a very long time. The juror returned to the jury room. Before adjourning temporarily to see if Mr. S could attend, his Honour allowed the jury to leave the building until noon, if they wished. After a short adjournment Mr. S was able to attend. He was sworn and examined by the prosecutor. He said that he was approached on the second floor by a woman whom he had worked with between 1984 and about 1987. She was excited to see him and they "caught up", he congratulating her on the birth of her second child. She drew him aside four or five steps. She had already told him she was a juror. She started asking him whether he knew defence counsel. Mr. S told her he did. She then asked a question to the effect of what was she like, to which Mr. S replied that she was good. She then asked a question to the effect of "What if I don't like her, or what's she doing?". Mr. S said that that was not important, what the barristers were doing. The only thing that went into evidence was the answer of the witness. He repeated that. Then she asked something of which he did not recall the exact nature and which he could not really understand, something about the evidence or how she was to perceive the evidence, and he told her that that was a question she would have to ask the judge. It was at that time that the tipstaff came up. He was briefly cross-examined by defence counsel and his Honour then asked him some questions, in response to which he stated that he was robed when approached by the juror and that she had told him that she was a juror in a trial and told him the nature of the trial.

138. Defence counsel renewed her application for the discharge of the whole jury. The prosecutor referred to the fact that in his address he had told the jury that it was not a popularity contest and that defence counsel had a job to do. He was granted a brief adjournment, after which he made application for the discharge of the particular juror only.

141. After hearing argument, his Honour ruled that there was no substantial danger that the incident, even allowing for possible contamination, was such that the jury as a whole should be discharged. He noted that it was either the final or penultimate day of the trial with addresses having already commenced. The court and the parties now had information that this juror had formed a particular view of defence counsel and there was a real danger, as his Honour saw it, that that view could be reflected in the juror's approach to the evidence. That influence would be an inference against the accused. The juror could no longer be seen as an impartial juror and therefore his Honour decided to discharge the individual juror on the ground that she was not impartial, pursuant to the Juries Act 2000 s.43(a).[29] The juror was then discharged and the balance of the jury brought into court. His Honour told them that an unfortunate incident took place that morning and as a result of that he had decided that one of their number should be discharged and they would continue with the reduced number of eleven. The trial then proceeded.

144. It was submitted for the applicant that in declining to discharge the whole jury the trial judge fell into error. The conversation between the juror and the member of counsel concerned defence counsel and her conduct of the case and, it was said, the evaluation of the evidence. Once the judge decided that the particular juror should be discharged the risk of contamination was such that the entire jury should have been discharged. In support of that it was said that the juror had been in contact with the other jurors both before and after the conversation; that she appeared to have returned to the jury room after the judge became aware of the conversation, albeit that she was asked not to discuss the matter with the other jurors; and that she had never been asked whether or not the matter she raised with the member of counsel had been the subject of discussion in the jury room or whether she had communicated the results of her conversation to other members of the jury. It was submitted that there was therefore no basis for the court to be satisfied that contamination had not occurred or to be satisfied that the reason for discharging the specific juror were peculiar to her. In oral argument counsel identified two risks: that of contamination from Mr. S and that of pre-existing partiality. In the circumstances, a fair-minded observer might have had an apprehension of the lack of impartiality on the part of the juror, reference being made to Webb v. The Queen; Hay v. The Queen[30].

147. As the Full Court stated in R. v. Boland[31], the power of a trial judge to discharge a jury when some incident occurs during a trial which may adversely affect its fairness depends for its exercise upon the principle stated in Winsor v. R.[32]. The principle is really one of necessity. There must be evident "a high degree of need for such discharge", that high degree being "such as in the wider sense of the word might be denoted by necessity".[33] More specifically, and, as it were, in elaboration of that general principle, in Webb Mason, C.J. and McHugh, J. stated[34] that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially. Nevertheless, as Toohey, Gaudron, Gummow and Kirby, JJ. pointed out in Crofts v. The Queen[35], the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given to the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in those circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice.

150. Counsel's submission that there was no basis for the court to be satisfied that contamination had not occurred or to be satisfied that the reasons for discharging the specific juror were peculiar to her inverted the onus of proof or persuasion, as, I think, he accepted during argument. Further, some at least of the enquiries which he submitted the judge should have made would have been improper as trespassing upon the jury's deliberations.

153. Leaving those matters aside, I turn to consider the two risks identified by counsel. There was an opportunity for the juror to report to the other members of the jury what Mr. S had said to her, at least before she was brought into the court alone for the judge to ascertain her interlocutor's name. (If one assumes that, as she had disregarded his Honour's instruction to avoid casual conversations, she would not have obeyed the direction he gave her after ascertaining the name, she might have had another opportunity when she returned to the jury room and the jury were allowed to leave the building until noon.) On the assumption that the opportunity was taken, there was, nevertheless, in my opinion, no "contamination". All that reached the other members of the jury was the favourable view of Mr. S about defence counsel and a statement that the question which the juror unsuccessfully tried to convey to Mr. S should be put to the judge. All that, such as it was, was entirely innocuous, at least from the defence point of view. As to pre-existing partiality on the part of the other jurors, I am by no means sure that the holding by a juror of a personal view about the conduct or ability of counsel (and, if it was the case, a provisional view about the trial at a time after the commencement of addresses) shows a want of partiality. One can have a view about the conduct or ability of counsel and yet decide in favour of that counsel's client. But, even if my doubt is unwarranted, there is nothing to show that the juror had conveyed her view to the other members of the jury or that, if she had, they had agreed with her.

156. More generally, I see no error in his Honour's ruling unless, consistently with the doubt I have expressed above, it be in discharging the individual juror for lack of impartiality under s.43(a). (Counsel for the respondent submitted with some plausibility that his Honour had acted out of an abundance of caution: the juror had disobeyed his instruction and had sought impermissible help, besides apparently having an unfavourable view of defence counsel. It may be that in all the circumstances the discharge of the juror was justified under s.43(d),which provides for discharge of a juror if it appears to the judge that, for any other reason, the juror should not continue to act as a juror.) His Honour's refusal, in the exercise of the discretion that was peculiarly his, to discharge the jury on the last or penultimate day of the trial is not shown to have been based on the incorrect principles or otherwise to be wrong: there was no high degree of need to discharge the whole jury in that the juror's conversation with Mr. S was, as his Honour indicated in the opening paragraph of his ruling, not such that it gave rise to a reasonable apprehension on the part of a fair-minded and informed member of the public that the jury would not discharge its task impartially. Nor did the refusal to discharge the whole jury occasion the risk of a miscarriage[36] of justice. In particular, the conversation was not such that it gives rise to a reasonable apprehension as above-mentioned that the jury did not discharge its task impartially. This ground, therefore, fails.

160. In support of this ground it was pointed out that the prosecution depended essentially on the complainant, a person with psychiatric (or psychological) illnesses, and that the only corroboration was the lies of the applicant. It was submitted that, if the Court was not satisfied that any of the defects complained of in other grounds were sufficient of their own, in combination they showed that the verdicts should be regarded as unsafe and unsatisfactory and that a miscarriage of justice had occurred. Cumulatively, it was said, they raised doubts as to whether the applicant had had a fair trial. Under this head reference was made to the aspects of counsel's conduct listed in paragraph [19] above and to the preliminary matter mentioned by counsel for the respondent, namely, that his Honour's Edwards[37] direction did not refer to the possibility that the lies were told to escape an unjust accusation. As will have appeared, I do not accept that defects had been made out under the other grounds, albeit insufficient of themselves to constitute a miscarriage of justice. Nor do I consider that his Honour was bound in his Edwards direction to include the possibility referred to, very properly, by counsel for the respondent. The case is quite different from R. v. Kotzmann[38]. This ground is not made out.

169. I have read the reasons for judgment of Batt, JA and adopt his summary of the history of the matter, the grounds of appeal and the summary of the Crown case and, except where I make express reference, his summary of the facts relating to the particular grounds of appeal. I have, however, come to some different conclusions. It is necessary that I set them out and my reasons for coming to those conclusions.

172. The grounds of appeal rely upon a number of alleged errors of defence counsel which it is said had the result that the applicant did not receive a fair trial and a miscarriage of justice occurred. There are at least two ways in which the applicant might support such grounds. One is to argue simply that he was denied a fair trial. The other is to argue that the conduct of his counsel was unreasonable and that, but for that conduct, there was a significant possibility that the jury would have acquitted the applicant or would have been likely to entertain a reasonable doubt.

175. The debate before this Court has focused on the latter aspect. In considering the arguments put, I find myself in the difficulty that the conclusion I have reached about the alleged errors of defence counsel raises serious concerns in my mind about the extent to which the case presented for the Crown was adequately tested. In those circumstances it seems to me to be an artificial exercise to consider the impact of the errors on the outcome of the case when to do so it is necessary to assess the strength of the Crown case. It seems to me, therefore, that the applicant's case turns in reality on whether the alleged errors deprived him of a fair trial.

178. I may be doing defence counsel a grave injustice but I am persuaded that several significant errors were made which denied the accused a fair trial. Before considering them, however, a number of incidents should be referred to which raise

concerns and support the conclusion that the particular conduct complained of was erroneous. I refer to the following.

* Early in the trial counsel for the accused sought a discharge of the jury claiming that she had only then became aware of the fact that no DNA of the accused had been found in the victim's vagina or anus. In fact at the committal, the same counsel had cross-examined the victim on the basis of the absence of evidence of the accused's DNA from those locations. This was drawn to her attention but she, nonetheless, persisted in her discharge application.

* Counsel for the accused failed to make a no case submission in relation to count 2, causing the learned prosecutor, acting in the best traditions of his role, to submit successfully to His Honour that it should be dismissed.

* On at least two occasions the prosecutor and the learned trial judge felt it necessary to intervene and stop cross-examination by counsel for the accused to ensure that she did not elicit information about prior convictions of the applicant and there were justified expressions of concern by the prosecutor about the competence of counsel on at least two other occasions.

* Numerous examples of inappropriate cross-examination and cross-examination based on errors of fact suggesting a lack of experience and deficiencies in counsel's grasp of the case.

186. I turn to the alleged errors of counsel. I refer first to the allegation that counsel erred in failing to challenge passages in the two records of interviews where the accused was asked to explain why the complainant would make such serious allegations against him. While this may be a legitimate line of inquiry for investigating police, it raises problems in the fair conduct of any trial - in part because it unfairly raised false issues and places an onus on the suspect. It is significant that His Honour thought it necessary to raise with counsel for the accused the fact that she had made no objection to those passages. Counsel for the accused in response acknowledged that there had been no objection, but from her response it seems that she then intended to cross-examine on why they were put to the accused. I note that she did not subsequently do so. Prosecuting counsel when asked if he had anything to say, asked rhetorically, why they had not been objected to and went on to comment that his Honour had previously raised "things" with counsel for the accused and that she had "missed the point". Counsel for the accused then purported to respond, inappropriately, to what she saw as prosecuting counsel's criticism by referring to her inability to cross-examine certain police witnesses at the committal. His Honour then, rightly, queried the relevance of this response. Counsel for the accused responded saying:

"... it was observed that those questions were an improper question. The response that Mr Ardley[39] has given in the defence submission was not one which was damaging. For that purpose there was no decision to ask for those questions to be excluded."

190. My interpretation of this passage is that counsel for the accused did not regard either the improper question or her client's responses as damaging. I agree, with Batt J. A, however, that the question and response in the initial field interview was damaging. It should have been objected to by counsel. I also take the view, however, that in the second interview, the questions and responses were damaging for other reasons. The police pressed Ali three times to explain why the allegations would be made by the victim. His replies were lengthy[40], confused, incoherent and non-responsive. They could be regarded as evasive and misconstrued as the responses of a guilty person. I am at a loss to understand why counsel did not seek to have them excluded, particularly when she was effectively invited by the trial judge to do so and the indications were that the Crown would not oppose their exclusion.

193. Next, I refer to the allegation raised in this application[41] that counsel erred in addressing the jury by referring to the accused's instructions which were not the subject of any evidence.

196. The only material available about what counsel said emerges in the transcript of the application by the learned prosecutor for leave to address the jury a second time. In that transcript he refers to his cryptic notes identifying the following matters, in particular:

* "...the last one being "He's frightened." Its only afterwards that he indicates that "I'd better fess up, there was ,consensual sex." Those are my instructions";

* "The consensual sex that he says he had a few nights before, "Perhaps that's why it was anal intercourse first";

* "he might have pulled the top down and pressed her breasts in the normal course of consensual sex".

203. I agree with Batt, JA that that conduct of defence counsel was objectively indefensible. In my view, however, it had a significant potential to affect the outcome of the trial and cause a miscarriage of justice. As I see it, the result was more than simply repetition of an obvious point that there was no evidence of consent. If counsel had done what counsel would normally do where their client has not given evidence, she would have focused the jury's attention on the burden of proof and the standard of proof and whatever weaknesses could be identified in the Crown case. In such circumstances, it is unlikely that there would have been any direct references by the Crown and the judge to the absence of evidence of consent. What counsel did in this case, however, was not only distract the jury's attention from her attack on the Crown case but dramatically highlight the issue of whether there was any evidence of consent and present the Crown with the opportunity to address last on that very point, the weak point of the defence. Counsel's approach also threw into the spotlight the fact that the accused had not given evidence. Counsel also did not oppose the application when she could at least have argued that it was sufficient that His Honour to deal with the issues in his summing up. In my view, the error of counsel was fundamental and deprived the accused of a fair trial. I should add that if, when counsel advised the accused not to give evidence, she intended to make the above comments, the advice was not reasonable.

206. The other alleged errors are perhaps less clear cut. Firstly, complaint is made about counsel not seeking to have excluded the records of interview which contained critical false denials when there were clear grounds available even though counsel may not have been successful. The records of interview also carried with them the problem for the accused that he had stated in them a time when the victim left the premises which was many hours before the victim was seen at the nearby railway station and filmed on security cameras. I cannot see any benefit flowing to the accused from the records of interview and accordingly have difficulty understanding why counsel did not attempt to have them excluded when there was a basis for such an application.

209. The other matter that needs to be referred to is the complaint that counsel failed to pursue evidence of the complainant having had sexual relationships, it being asserted and relied upon by the Crown that she was a lesbian and had told the accused so and where certain of the injuries where explicable on the basis of prior heterosexual activity. This is an issue more difficult to assess and the applicant in fact relies upon it as an example of other unreasonable conduct and not as an error in itself. Bearing in mind that cross-examination on such matters can be counter-productive, it would be unwise to draw any conclusions from counsel's handling of this matter.

212. Turning to law, McHugh J has commented:[42]

"In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had trial to which he or she was entitled. In such a case, the failure of counsel conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel's conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel's conduct might have affected the result[43]".

216. Examples of cases where an appellate court has in the past found that the conduct of accused's counsel has given rise to an unfair trial and therefore a miscarriage of justice include:

* the failure to raise matters in cross-examination and to deal with problems that arose as a result[44],

* behaving in such a manner as to poison the courtroom atmosphere[45],

* putting the accused's character in issue[47],

* advising an accused not to give evidence on the erroneous assumption that no comment could be made[48] or erroneous assumption that his character could be attacked[49],

* failure to advise of the advantages of giving evidence[50].

225. 61 Here there was a failure to take up the learned trial judge's invitation to have excluded improper and damaging questions and answers, a failure to challenge the highly significant evidence of the interviews when a challenge was open and, at the end, an address to the jury that was fundamentally and damagingly erroneous and should never have been made. In my view, these errors by counsel deprived the accused of a fair trial according to law and therefore, regardless of their impact on the outcome, constituted a miscarriage of justice.

228. For these reasons, the application should be allowed, the appeal allowed and the convictions quashed and a new trial directed on all counts other than Count 2.

233. I have had the opportunity of reading in draft the judgment of Batt, J.A. I agree that the application should be dismissed. I shall add briefly reasons of my own in relation to ground 6 which has a number of components.

236. First, is the submission that counsel at the trial erred in a serious way in not objecting to the reception into evidence of the "field interview" and the subsequent "record of interview" both being tape-recorded. I am of the opinion that no basis existed for the trial judge in the exercise of his discretion to rule inadmissible either the "field interview" or the "record of interview". It was submitted by counsel appearing for the applicant that the police did not provide the applicant an opportunity to exercise his right to consult a solicitor. In the "field interview" the police informed the applicant on three occasions of his right to communicate with a solicitor. The transcript of the recording and the recording itself reveal that the occasions were separated in time by a number of questions and answers[51]. There was not a tittle of evidence at trial to suggest that the applicant wished to avail himself of the right to communicate with a legal practitioner. The applicant was a man of intelligence, having studied years 10 and 11 at Collingwood High School and

undertaken tertiary education at RMIT in Brunswick in textiles. He preferred to speak to the police in English although his native language was Somali. I am not persuaded that the police failed to comply with s.464C(1)(b) of the Crimes Act. I am satisfied that the applicant understood he had a right to communicate with a legal practitioner, but opted not to do so. This is evident because he was again informed of his rights when the record of interview commenced and asked whether he wished to exercise any of the rights before the interview proceeded. He answered no.

240. At no stage was it suggested by the applicant or his counsel that the police had behaved improperly or that the answers made to the police were in some way involuntary or that the answers recorded were not made by him.

243. A voir dire would have had no prospect of success in my opinion. Further, counsel has a duty to the Court not to seek a voir dire unless there is some reasonable prospect of success.

246. The "field interview" and the "record of interview", save for one or two questions and answers which were not prejudicial but might have been excluded by the trial judge in her discretion, were admissible and probative of the prosecution case. If the jury was satisfied that the applicant lied to the police when he denied having sexual intercourse with the victim the lie could be used as evidence tending to inculpate the applicant in the offences charged. A lie by an accused provides evidence probative of guilt if the jury is satisfied the accused told the lie because he perceived that to admit for example, that he had sexual intercourse with the victim may be evidence against him. [52]

249. That being the case, the most the applicant could do, if his defence required him to admit that he lied to the police in each interview, was to say in evidence that he was frightened or embarrassed by the police interrogation or panicked. All of those possible explanations could be made by his counsel to the jury in the way of submissions in the knowledge that the trial judge would be required to support counsel consistent with Edwards v. R.[53]

252. In these circumstances, I am of the opinion that it was reasonable for counsel not to ask for a voir dire. There was no unfairness in the police questioning and, if there had been a breach of s.464C(1), it was of a technical kind, unlikely to have led the judge to exclude the interview evidence in the exercise of his discretion.

255. Secondly, the submission that counsel erred in failing to call the applicant as a defence witness. I agree with Batt, J.A. that this Court does not know what defence the applicant would have relied upon to the counts of rape. He might have said that what he told the police was the truth, or he might have admitted to engaging in two consensual acts of sexual intercourse with the complainant, or he might have admitted to engaging in a number of consensual acts of intercourse.

258. Whatever the defence was to be, no sex or consensual sex, the applicant had to overcome the effect of the police interviews and the evidence supporting the complainant's story namely, the railway surveillance evidence at around 5.34 p.m. and the telephone call to a friend at 5.45 p.m., which rendered highly unlikely the applicant's story that the complainant left his premises at 10 a.m. What did she do in Kensington between 10 a.m. and 5.30 p.m.? Counsel's decision not to call the applicant is explicable because the instructions which resulted in the defence response first denying anal and vaginal intercourse and later being amended to admit one act of anal and one act of vaginal intercourse which were consented to were so contradictory as to make the applicant's position hopeless, whatever defence was relied upon.

261. In my opinion, the prosecution case was very strong and counsel appearing for the applicant was faced with many difficult forensic decisions. I agree with Batt, J.A. that the application for leave to appeal the conviction should be dismissed.

[1] The bold type for the word "one" (twice) reproduces that of the amended response.

[2] [2002] HCA 46; (2002) 212 C.L.R. 124.

[3] TKWJ especially at paras.[29]-[31], per Gaudron, J.; and [79]-[81] and [97], per McHugh, J.

[4] Subject to the question raised by ground 1.

[5] Para.[17], per Gleeson, C.J.; paras.[32] and [33], per Gaudron, J.; and paras.[107]-[112], per Hayne, J.; compare paras.[77], [79]-[81] and [97], per McHugh, J. Gummow, J. agreed with Gaudron, J. and with Hayne, J.: para.[101].

[6] Gaudron, J. at para.[33] spoke in terms of likelihood, adopting the formulation that she and Toohey, J. had used in Mickelberg v. The Queen [1989] HCA 35; (1989) 167 C.L.R. 259 at 301. Hayne, J. at para.[104] adopted that formulation, but simply for ease of reference, leaving aside the debate revealed in Mickelberg about whether the test was best expressed in that way or as a "significant possibility of acquittal". Gummow, J. agreed with both Gaudron, J. and Hayne, J. Compare R. v. Nguyhn and Tran [1998] 4 V.R. 394 at 401.

[9] [1986] HCA 26; (1986) 160 C.L.R. 392 at 399, 402, 408-9, 415 and 421.

[10] At paras.[74], [79], [81] and [97].

[11] The amended defence response might perhaps have been relied on also as showing the instructions, though it was not.

[12] [2000] S.A.S.C. 312 at paras.[5] and [6].

[13] [2003] Q.C.A. 505 at paras.[21]-[24].

[14] [1994] UKPC 1; [1995] 1 W.L.R. 194 at 198-199.

[15] At paras.[33] and [17] respectively.

[16] In para.[107]. See also paras.[106], [108] and [112].

[17] TKWJ at para.[107], per Hayne, J.

[18] [1992] HCA 69; (1992) 176 C.L.R. 177 at 183-4 per Mason, C.J., 199-200 and 208 per Deane, J., 222 per Toohey, J. and 233-4 per McHugh, J.

[20] Pollard at 233-234 per McHugh, J.

[22] A similar statement 20 pages later in the depositions occurred after false denials had been made.

[27] [1998] HCA 1; (1998) 192 C.L.R. 159.

[28] Compare R. v. Arundell [1998] VSCA 102; [1999] 2 V.R. 228 at 252, para.[62], to which Mr. Palmer very properly drew the Court's attention, though he sought to distinguish it.

[29] Referred to by his Honour as s.44A.

[30] [1994] HCA 30; (1994) 181 C.L.R. 41, and also to R. v. Hodgkinson [1954] VicLawRp 23; [1954] V.L.R. 140 and R. v. Chaouk [1986] VicRp 70; [1986] V.R. 707, but the facts in the former are far stronger and in the latter the jury had retired to consider its verdict.

[31] [1974] VicRp 100; [1974] V.R. 849 at 866.

[32] (1866) L.R. 1 Q.B. 390.

[35] [1996] HCA 22; (1996) 186 C.L.R. 427 at 441. See also Maric v. The Queen (1978) 52 A.L.J.R. 631 at 635.

[37] Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193.

[38] [1999] VSCA 27; [1999] 2 V.R. 123 at 157.

[39] He was an interviewing police officer. Either defence counsel referred, or intended to refer, to Mr Ali or the transcript should read "was" instead of "has".

[41] In support of Ground 6 (d) and (e).

[42] T. K. W. J. v. The Queen, at 148, para 76.

[43] His Honour foot noted cf Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365.

[44] R v Birks (1990) 19 NSW L.R 677.

[45] R v Lars (1994) 73 A Crim R 91.

[46] Re Knowles [1984] VicRp 67; [1984] V R. 751; R v Scott (1996) 185 LSJS 436.

[47] R v Oliverio [1993] SASC 4341; (1993) 61 SASR 354.

[48] R v Kyriacou [2000] SASR 312. Note: The Court of Criminal Appeal applied a test of loss of a chance of acquittal.

[49] R v N [2003] QCA 503.

[51] Transcript of "field interview" at pp.3, 24 and ff.

[52] Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193 at 209.