R v Brown [2002] VSCA 207

2. On 13 September 2000 the applicant, Mark Hastie Brown who is now aged 36, pleaded not guilty before a jury in the County Court at Melbourne to a presentment containing one count of recklessly causing injury to the 18 year old female complainant on 20 October 1999 and to one count of digitally raping her on that day. On 15 September 2000, the jury returned a verdict of guilty on both counts. The applicant admitted a number of prior convictions, including convictions for theft and burglary dating back to July 1985 and a conviction for murder on 15 March 1990 in respect of which he was sentenced to 12 years' imprisonment with a non-parole period of nine years. The applicant was on parole in relation to the murder conviction when he committed the offences in question. Not surprisingly, his parole was thereupon cancelled by the Adult Parole Board. Because of his prior conviction for murder, the applicant fell to be sentenced as a serious violent offender pursuant to s.6D of the Sentencing Act 1991. Furthermore, because the offences were committed whilst he was on parole, s.16(3)(B) of the Sentencing Act required the sentences to be served cumulatively unless exceptional circumstances were established.

5. After hearing a plea in mitigation made on the applicant's behalf, to which I will refer more fully later, her Honour sentenced the applicant to six months' imprisonment on count 1 and to six years' imprisonment on count 2 to be served cumulatively upon the sentence imposed on count 1. Thus, the applicant was sentenced to a total effective sentence of six years and six months' imprisonment to be served cumulatively upon the sentence he was then serving. Her Honour directed that the applicant serve five years' imprisonment before becoming eligible for parole.

8. By notices filed on 19 February 2001 the applicant seeks leave to appeal against his conviction and sentence on grounds which were later amended by leave of the Registrar. As a consequence, they read as follows: In relation to the application for leave to appeal against conviction, the amended grounds are these.

"1. The jury's verdict was against the weight of the evidence. 2. The learned judge under-valued in her charge to the jury the defence of the applicant. 3. The applicant did not receive a fair trial because: (i) the learned trial judge gave a direction to the jury which was wrong in law and/or inappropriate in all the circumstances. ... (ii) counsel for the applicant at the trial failed to elicit in cross-examination prior inconsistent statements of the complainant."

12. The applicant's amended grounds in support of the sentencing application are in the following terms.

"1. The learned trial judge failed to order a pre-sentence report before passing sentence. 2. The learned trial judge passed a sentence that was manifestly excessive. 3. The sentence imposed ... was based on inaccurate material, mainly, that the applicant had failed to co-operate with the court in obtaining a current psychiatric assessment."

17. Before considering the parties' respective submissions, it is necessary to set out briefly the circumstances relating to the offending. On 20 October 1999 the complainant was, as I have mentioned earlier, 18 years of age and was a student attending a girls' secondary college to which she travelled from her home by train. On the afternoon of that day, she was walking home from the local railway station. Her route home was such that she walked along a bicycle path which led to the street where she resided. As the complainant walked along the path and was close to home, a man rode past her on a bicycle on her left side. She said that she lost sight of him as he rode into the street where she lived. She then heard footsteps behind her and felt an arm from behind being placed around her neck. She was pushed to the ground and was dazed when she hit her head on the concrete path. When she regained her senses she found herself positioned with her upper body on the path and her lower body on the gravel, which was at the side of the path. The applicant was on top of her pushing her down; he was trying to stop her kicking and screaming as she attempted to get away. She said that he used force to place his hand inside her underpants and put his fingers on the outer lips of her vagina. The complainant was menstruating at the time and was wearing a sanitary pad. While she was yelling and screaming, the applicant said to her, "What's going on? What's wrong?", after which he instructed her to "move". The complainant was unable to do so because she felt too weak; she said that her legs were like jelly and she could not stand up. Her very loud and hysterical screams were heard by Mrs Bianco who lived nearby and who went to the complainant's assistance. By that time, however, the applicant had ridden off on his bicycle but was observed by Mrs Bianco to remain nearby, and then to ride back towards them and to follow them at a distance when Mrs Bianco helped the complainant home. When the complainant got there, she bordered on the hysterical: she was shaking, screaming and crying. Her sister, and her sister's friend Kylie, sought to comfort her. The complainant collapsed on the floor and her sister rang the police. She then heard someone say that the applicant was coming back, so she hid inside the house but the others went outside. The applicant told them that the complainant had stolen his mobile telephone. The complainant's sister checked in her sister's bag, but found nothing of relevance and told him so. Soon after this, the complainant came outside and when she saw the applicant she yelled abuse at him. He sat on his bicycle, shaking his head, and the complainant went back inside the house.

20. A medical examination later that day revealed that the complainant had dirt on her knuckles and left hip region, a five centimetre abrasion on her left arm and elbow and bruising at the base of her buttocks and thigh. She was menstruating at the time and there were neutral findings of damage in her genital area. She also complained of a sore neck, nose and eye as a result of the assault.

23. The applicant was apprehended by the police not long after the incident and a record of interview was conducted to which I will refer again later.

27. I now turn to consider the submissions of the applicant's counsel in relation to the conviction grounds. Ground 1 was abandoned and counsel dealt with the remaining grounds in the following order.

Grounds 2 and 3(i) - wrong in inappropriate direction

31. It was submitted for the applicant under cover of these grounds that, in her charge, the judge impermissibly directed the jury on a factual matter and commented critically upon an aspect of the final submission of the applicant's counsel, thereby impermissibly undermining the applicant's defence.

34. It is necessary to mention briefly the background circumstances relevant to this claim. During her cross-examination, the complainant could not explain how the applicant was able to get behind her without her seeing him and this fact became a principal plank in the applicant's case. His counsel emphasised this on a number of occasions in his final address to the jury. He invited them to reason that since the complainant was unable to give this explanation, they should reject her account of the events and accept that of the applicant. Although the applicant did not give evidence, his explanation of the incident was effectively put to the jury through his record of interview with the police which was tendered in evidence. His case was that he accidentally crashed into the complainant as he rode up behind her and he denied touching her vagina.

37. In her charge, her Honour told the jury that she would give them one direction and would make one observation, or comment, on the issue of the complainant's inability to explain the manner in which the applicant got into the position to attack her from behind. The judge then directed the jury that this issue was not an element of either offence with which the applicant was charged and that they did not have to be satisfied about it before they could convict him. Her Honour went on to explain that the applicant's counsel was merely suggesting to them "in the strongest terms" that the complainant could not explain how the applicant passed her on his bicycle and shortly thereafter grabbed her from behind.

40. The learned judge then made an "observation" about the matter, the gist of which was that the prosecution case did not rely upon the jury being satisfied of the precise sequence of events that preceded the alleged attack and that the complainant did not seek to give an account or an explanation of how the applicant came to be behind her. Her Honour also said that the jury might consider that the complainant would not have had any reason to keep the applicant under close observation after he rode past her because she had no reason to anticipate being attacked. It seems to me that in making these observations, her Honour did not criticise the applicant's address, as was claimed, but merely pointed out that there might be an explanation other than the one pressed on them by the applicant's counsel, for the complainant not having seen the applicant come up behind her. Perhaps more importantly, the learned trial judge reiterated that this question was one within the jury's exclusive province.

43. Mr Danos, who appeared for the applicant before us but not below, submitted that her Honour's direction was impermissible because it related to a factual issue and was not confined to a direction on the applicable law which the jury were required to follow. Unlike counsel below, Mr Danos so was not critical of her Honour's comments on this issue, but claimed that the direction in relation to it was impermissible because it related to evidence or a factual matter. It was also said that, in any event, there was no basis for her Honour's concern that what counsel said in his final address may have led the jury to take the view that the issue so raised by him was an element of the offence. That her Honour so mis-characterised counsel's submissions, it was argued, gained support from her acknowledgment in her charge that counsel did not say in his address that the above issue was an element of the offence.

46. In support of his argument that the direction was impermissible, Mr Danos referred to Azzopardi v. Davis[1], which was concerned with the direction that may be given to a jury about what significance may properly be attached to the fact that an accused did not deny or explain inculpatory evidence called by the prosecution. In particular, counsel referred to the passages in the joint judgment of Gaudron, Gummow, Kirby and Hayne, JJ. which emphasised[2], inter alia, that it was:

"Not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt. That is the province of the jury. The judge's task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible and dangerous paths of reasoning. That is not to say that the judge may not comment on the evidence that has been given and comment about the facts that the jury might find to be established."

50. Their Honours went on to say[3] that a judge may comment on evidence but not give directions with respect to it. Here, said Mr Danos, the judge's direction dealt with a matter of evidence and was thus impermissible. Moreover, it was said it had the effect of undermining the applicant's defence and in particular a principal aspect of it. Hence, it was claimed, the applicant was denied a fair trial.

53. It is plain that her Honour was concerned that, in his final address to the jury about the complainant's failure to explain the applicant's relevant movements, the applicant's counsel put the matter, "almost ... on the basis that that was an element of the offence that had to be established". The learned judge was sufficiently concerned that this had, or may have, occurred to raise the matter with counsel before she charged the jury. She then informed him of her proposal to give a direction on this issue and stated that, as a matter of fairness, she might also make a comment on it. Although the applicant's counsel, unsurprisingly, opposed her Honour's proposed course, she nevertheless proceeded to give the direction and to make her remarks. Having regard to the matters to which I now refer, I consider that there was no error in her Honour giving the above direction.

56. First, I am not persuaded that her Honour mis-characterised counsel's address as was contended for by Mr Danos. The applicant's counsel chose to emphasise to the jury on a number of occasions what he essentially claimed was a gap in the Crown's case, namely, the failure by the complainant to explain the applicant's relevant movements. Undoubtedly, her Honour, who was best placed to assess the course and atmosphere of the trial, would have considered that there was a risk that counsel's address could lead the jury to regard this issue as an element of the offences. The judge obviously considered that it was her obligation, as part of her duty to ensure a fair trial, to eliminate that risk by giving the direction and to balance it with the observation to which I have referred. In the circumstances, I find that no error has been demonstrated in the judge's decision to give the direction in question.

59. As to the contents of her Honour's direction, I find them unexceptional. As Mr Elston for the Crown submitted, no matter how important the factual issue was from the perspective of the applicant, it was not an element of the offence and the terms of her Honour's direction in that regard did not constitute error. It should be said that the learned trial judge had earlier explained to the jury what were the elements of the offences, so that they were well aware what issues had to be established by the Crown to the requisite standard.

62. Although the direction related to factual circumstances, it was clearly one that was on a matter of law, namely, whether the issue in question was an element of the offence. Such a direction is no different in substance, as Mr Elston pointed out, from a direction of law that is frequently given to juries to the effect that motive is not an element of the particular offence, or from a direction as to what constitutes corroboration.

65. As to the judge's comment on the factual issue, it is true that a trial judge must take great care, when commenting on aspects of defence counsel's final address on factual issues, to ensure that there is no sensible risk that the jury will give those comments some special weight, or that they do not otherwise work an unfairness to the accused. For example, it was said in RPS v. R[4]:

"Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the argument of counsel."

69. Their Honours further observed that to attempt to instruct the jury about how they might reason towards a verdict of guilty (as distinct from warning them about impermissible forms of reasoning) leads only to difficulties of the kind that arose in that case. Nevertheless, it has long been held (and was repeated in RPS and Azzopardi) that a trial judge may comment (and comment strongly) on factual issues.

72. In my view, neither her Honour's direction nor her comments sought impermissibly to deal with how the jury might reason towards a verdict of guilty. What her Honour told the jury was balanced and fairly put. I see no basis for contending that her Honour's direction relevantly undermined the applicant's case and if the judge's comments had that effect, that would have only been because the jury chose to accept them and not because her Honour made an impermissible observation in relation to the defence case.

75. Consequently, in my view, the above ground must fail.

Ground 3(ii)- failure by counsel to address evidence of prior inconsistent statements

79. It was submitted by Mr Danos under cover of this ground that the trial miscarried because the applicant's counsel was negligent in failing to cross-examine the witness, Kylie, so as to establish that the complainant's evidence of the incident was inconsistent with what she had earlier described to Kylie. It was claimed that counsel forgot to cross-examine the witness on that issue and that this resulted in a miscarriage of justice. Hence, it was argued, the conviction should be set aside and a new trial ordered.

82. In order to give context to this complaint, it is necessary to set out some relevant background circumstances. Shortly after the incident, Kylie made a statement to the police about what she knew of it, including what the complainant had told her when she arrived home after the assault, and of her observations as to the complainant's physical and mental state at the time. Relevantly, she said on page 2 of her statement that the complainant had told her that, as she was walking along the path, a man rode past her, turned around and rode back and crashed into her, causing her to fall and hit her head on the ground; he then tried to get on top of her and was putting his hand down the front of her pants but she had her period. It is relevant to mention that on page 3 of her statement Kylie dealt principally with the circumstances when the applicant came to the complainant's house seeking to have his mobile telephone returned.

85. It is readily apparent from the transcript that, when the applicant's counsel cross-examined the complainant as to the sequence of events preceding the assault, he did so on the basis of what Kylie relevantly said on page 2 of her statement, presumably on the assumption that she would give evidence in accordance with it. Thus, it was put to the complainant that she told Kylie, and that Kylie would say, that what had occurred was that the applicant rode past her and then came back towards her and rode into her causing her to fall to the ground. The complainant denied that the event had happened in that way, but said that she could not recall what she told Kylie.

88. When Kylie was cross-examined, however, although she was asked questions by reference to the material on page 3 of her statement, she was not cross-examined on what the complainant had told her of the incident. Mr Danos submitted that the failure by the applicant's counsel to elicit from Kylie what the complainant told her about the incident was a significant omission which materially prejudiced the applicant in his defence and thus resulted in a miscarriage of justice. Counsel said that the sequence of events identified by the complainant to Kylie as they are reflected in her statement differed in four significant respects from what the complainant said in her evidence-in-chief about the incident. They were:

(a) After the applicant passed her, she saw him riding back towards her.

(b) The applicant rode straight at her.

(c) The complainant fell to the ground.

(d) The there was no mention of the applicant having touched the vagina.

94. Consequently, said Mr Danos, the failure by the applicant's counsel to bring out this inconsistency by cross-examining Kylie resulted in material disadvantage to the applicant's case in that:

(a) The applicant was unable to demonstrate that the complainant's evidence of the event was inconsistent with her description of it to Kylie and thereby to attack the complainant's credit.

(b) What the complainant relevantly told Kylie was generally more consistent with the applicant's version of events.

(c) The applicant was subjected to unfavourable comments by the prosecutor and the judge to the jury to the effect that the applicant's counsel had failed to put to Kylie what she was told by the complainant about the incident.

100. Thus, it was contended, a miscarriage of justice had occurred.

103. Mr Danos accepted that, ordinarily, if a witness is not cross-examined on an issue by the accused's counsel because of a forensic decision made to that effect, the accused is bound by that decision. In this case, however, counsel claimed that the failure relevantly to cross-examine Kylie was not the result of a forensic decision; counsel simply forgot to put the matter to her. Alternatively, it was argued, if there was no cross-examination on the point due to a forensic decision made by the applicant's counsel to that effect, it was a decision that was plainly erroneous and went against the applicant's interests. On either basis, it was said, the failure to cross-examine Kylie to adduce the relevant evidence from her resulted in a substantial miscarriage of justice which entitled the applicant to challenge his conviction on that ground.

106. In support of his case that it was unlikely that the failure so to cross-examine Kylie was the result of a forensic decision, counsel argued that there would have been no, or only little, forensic risk in putting the relevant conversation to her, given that this version of it was substantially confirmed by what Kylie said in her statement which cross-examining counsel had before him and that it was unlikely that she would have departed from it. At worst, counsel said, if she gave a version of the conversation that was inconsistent with her statement to the police, her statement could have been brought to her attention and if she persisted in disagreeing with it, it could have been tendered as her prior inconsistent statement and thus her credit would have been undermined. These circumstances, it was said, militate against the likelihood that the applicant's counsel made a forensic decision not to cross-examine Kylie on the above subject.

109. At the early stages of the hearing of the appeal, we inquired of Mr Danos whether the applicant's trial counsel had been told of this allegation against him and, if so, whether he had relevantly responded. Counsel told the Court that he had a conversation with his predecessor about the issue, but what he was told was not "helpful". The Court suggested that consideration be given during the luncheon adjournment to the applicant's solicitors obtaining a written statement from the applicant's trial counsel concerning the matter. In the result, on the day following completion of oral argument the Court received a letter from the applicant's trial counsel and further written submissions from the parties.

112. In substance, the applicant's trial counsel acknowledged that he had been informed by Mr Danos that it was being submitted for the applicant in support of his application for leave to appeal against conviction that his counsel's failure to cross-examine Kylie on the matter of "an apparent prior inconsistent statement made to her by the victim may have resulted in a miscarriage of justice". It is not clear, however, that counsel was told that it was claimed for the applicant that the alleged miscarriage of justice arose from a negligent failure on his part to cross-examine the witness. In my view, as a matter of fairness, counsel should have been so informed. Be that as it may, what counsel relevantly said in his letter was that, due to the passage of time[5], he could not recall "in what circumstances [he] took the course [he] did".

115. As I understand it, there is no formal or accepted protocol in place in this Court for placing before it such limited material as may be available that bears on the question whether the accused's trial counsel has imprudently conducted the trial. Often, all that is put forward is an assertion from the Bar table as to how trial counsel had erred in the conduct of the trial and it is not always the case that the former counsel produces a response or is even given an opportunity to do so. In my view, ordinarily, where it is alleged on appeal that the accused's then trial counsel had imprudently conducted the trial, fairness dictates that this allegation be made known to counsel and that he or she be given the opportunity to respond and that any such response be communicated to the Court. Such a course was effectively approved by this Court in MNG[6]. In that case Phillips, J.A., with whom the other members of the Court agreed, considered[7] that, where such an allegation is made against the former practitioner, it is appropriate that it be put "squarely" to him or her. In that case it seems that it was the applicant's legal advisers who made the allegation known to the former practitioners and affidavits in relation to such communication were filed showing that they were asked in writing about their instructions concerning the calling of evidence. His Honour noted that the applicant's former solicitor made a limited response but that counsel did not respond, thus leaving the Court with no first hand explanation of the decision taken by him not to lead certain evidence at the time of the trial. In the result, as his Honour said, "We must do the best we can on the material that we do have." In R v. Portelli[8] (with whom Charles and Callaway JJ.A. agreed) his Honour noted[9] that counsel against whom the allegation was made at the appeal was notified by the applicant of what was being alleged against him and considered that such a course was "entirely appropriate". Phillips, J.A. was critical[10], however, that the relevant facts were sought to be conveyed to the Court from the Bar table. His Honour considered that where the conduct of previous trial counsel is impugned, notice of the relevant ground of appeal should be given in writing to counsel as soon as the ground is taken and that he or she should be provided with supporting material and offered the opportunity to respond.

118. R v Japaljarri[11] was another case where the applicant claimed that the conduct of his then counsel resulted in a miscarriage of justice. More particularly, it was claimed that counsel had "pressured" him into not giving evidence notwithstanding that he wanted to do so. This Court gave notice to that counsel of the allegation that was being made against him and invited him to respond if he wished to do so. It is to be noted, however, that by the time the application for leave to appeal came on for hearing, the applicant's former counsel had been appointed a judge. His Honour responded in writing by making available to the Court a note from the applicant addressed to him when he was counsel in which he expressed many favourable observations about his conduct of the case. Eames, J.A. with whom Batt, J.A. and O'Bryan, A.J.A. agreed, concluded[12] that in the circumstances there was no basis on which it could be said that counsel was incompetent, as was claimed, or even if he were, it did not result in a substantial miscarriage of justice.

121. In a case such as the present, the relevant questions are: should the applicant's former trial counsel, whose conduct is impugned, be informed of the allegation and, if so, by whom, and should any response that he or she may make be communicated to the Court hearing the appeal? While no hard and fast rules can or should be laid down on this issue, it seems to me that, ordinarily, the procedure proposed by this Court in MNG would be appropriate. Ultimately, it is essentially a matter for the applicant to decide whether to notify the practitioner against whom the allegation is made and give him or her the opportunity of responding and then to put all the relevant material before the appellate court in proper form. If the applicant chooses not to do so, the Court would be free to draw such inferences as it thinks may be appropriate from the failure to take such action. In particular, it would be reluctant to draw adverse inferences or make adverse findings against counsel who has not been given the opportunity to respond to the allegation of error of judgment or negligence. In an appropriate case, the Court may not continue with the hearing of the appeal until appropriate notice is given to the practitioner whose conduct is impugned.

124. It is now necessary to turn to the forensic context in which Kylie was cross-examined and the likely reason why cross-examining counsel did not raise with her what the complainant had earlier told her about the incident. Kylie gave evidence after the complainant had given her evidence. In her evidence-in-chief she effectively said that, due to the complainant's hysterical state when she first arrived home after the incident, she misunderstood what the complainant had told her (the necessary inference being that what she said on page 2 of her statement was wrong). This evidence was given by Kylie before the applicant's counsel cross-examined her. In those circumstances, it is not difficult to see why counsel might have decided not to cross-examine the witness on the relevant conversation. Had he done so, it might have brought about a confirmation that she had misunderstood what the complainant had said, given her hysterical condition at the time. Such a response would have bolstered the credit of the witness to the disadvantage of the applicant's case. Furthermore, by that time the applicant's counsel had established what turned out to be the applicant's strongest forensic point, namely, the complainant's inability to explain how the applicant supposedly came to be in a position to attack her from behind. That became, as I have said, a principal plank in the applicant's case. It would not be surprising if, as Mr Elston submitted, counsel took the view that it would be in the best interests of the applicant to go to the jury with that point, which is what he did, and not put it at risk by cross-examining Kylie, as Mr Danos would have it, and as a result obtain a response that would bolster her credit and thereby indirectly that of the complainant.

127. In his further submissions, Mr Danos contended that if the applicant's counsel had made a forensic decision not to cross-examine Kylie on what the complainant told her because there was a real risk that she would respond in the way I have described, it was likely that he would have sought from the judge an informal ruling that no adverse comment should be made to the jury by her Honour or the prosecutor about his decision not to cross-examine the witness on that issue. The basis of such an application would have been, said counsel, that until Kylie effectively said in her evidence-in-chief that the relevant part of her statement was wrong, he, trial counsel, would have assumed that she would "swear up to her statement" and that was the basis on which he cross-examined the complainant. That no such application was made to the judge, said Mr Danos, is consistent for the applicant's trial counsel simply forgetting to put the matter to the witness.

130. It seems clear enough that, ordinarily, an accused is bound by the consequences of a decision taken by his or her counsel in relation to the conduct of the trial and that, generally, courts are cautious in dealing with allegations that a trial has miscarried because the accused's then counsel has imprudently conducted an aspect of it.[13] Such allegations include claims that counsel simply made an error of judgment in relation to an aspect of the case or that he or she made the decision negligently or had negligently omitted to take a particular step in the trial that ought to have been taken. An appellate court is not well positioned to determine into which category applies in the circumstances of an individual case and whether the ramifications are such that the conviction should be set aside. The difficulty facing an appellate court in this regard often stems from the lack of material or evidence that is necessary for a proper resolution of such a matter as well as its limited appreciation of the atmosphere of the trial at the relevant time and the full context of which the impugned step was or was not taken as the case may be. The problem may be compounded by the fact that what is often sought to be analysed, with the benefit of hindsight, is a judgment of counsel that was necessarily made almost on the spur of the moment, or at least in a short span of time, often in a context where the choice was, in reality, between a number of "evils". Such difficulties were highlighted, for example, by Gleeson, C.J. in Crampton where his Honour said[14]:

"It is usually difficult, and frequently impossible, for a Court of Appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court. The material upon which a judge, either at trial or on appeal, may form an opinion as to the wisdom of a course taken by counsel can be dangerously inadequate and, when it is, the judge may have no way of knowing that. Ordinarily, a barrister knows more about the strengths and weaknesses of his or her client's position than will appear to a judge, whose knowledge of the case is largely confined to the evidence".

134. The applicant's case on this issue was, as I have said, not that counsel failed relevantly to cross-examine Kylie due to an error of judgment, but that he negligently forgot to do so. It is plain that if counsel did not cross-examine the witness because he made a forensic decision not to do so, then the applicant would first have to establish that counsel erred in forming that judgment. In order to attract judicial intervention, however, it would also have to be established that the error, or the negligence if that is made out, was so serious that it resulted in a miscarriage of justice. See, for example, R v. Birks[15] and MNG[16].

137. The distinction between counsel deliberately choosing to follow a particular course in the conduct of the trial on the one hand, and taking or failing to take a particular step because of a fundamental error on his or her part on the other hand, can be of fundamental importance to the question whether the impugned conduct vitiates the conviction. Such a distinction was articulated by the Full Court[17] in Re Knowles[18]. In that case, in relation to the first situation their Honours said[19]:

"Decisions [upon the best course to follow] depend essentially on the judgment of counsel and counsel for the defence, familiar with all aspects and features of the trial, is in by far the best position to make such decisions. Decisions such as those, even if an appeal court thought that counsel had made an unwise or imprudent decision, would almost never found a successful appeal based on miscarriage of justice. The Crown argued that the decision now being considered was of the same type as those decisions but we do not agree. The course to be taken in the conduct of the defence of an accused person is left to the judgment of the defence lawyers. A trial will not normally be regarded as having miscarried if the accused has been afforded a proper opportunity for choice and a choice has been made by his legal representatives on his behalf. This is illustrated by the statement by Barwick CJ in Ratten v R [1974] HCA 35; (1974) 131 CLR 510, at p.517; [1974] HCA 35; 4 ALR 93, at p.99 that: It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Amongst the various defects or omissions which may lead a trial to become unfair and to amount to a miscarriage of justice are circumstances which may be treated as vitiating the volition or choice by an accused or his lawyers to follow or refrain from following some course at the trial. Some factors capable of amounting to vitiating factors, which are mentioned in the cases, are fraud, mistake, surprise, malpractice and misfortune, and, with particular reference to defence lawyers, inexperience, remissness, defect of judgment or neglect of duty_: R v Hadland_ [1969] VicRp 93; [1969] VR 725, at p.728; Re Ratten [1974] VicRp 26; [1974] VR 201, at p.204 and R v Sarek [1982] VicRp 99; [1982] VR 971, at p.982."

141. The Court, in Knowles considered that there was failure by counsel to tender relevant evidence, not because counsel chose that course as being in the best interests of his client, but because of a fundamental error on his part as to the admissibility of that material. Their Honours concluded that this error resulted in the evidence not being tendered and that in the circumstances of that case that error was a vitiating factor which relevantly affected the conviction. See also Vackas David v. R.[20].

144. But in this case, for reasons which appear below, I am not persuaded that counsel was negligent in not cross-examining Kylie; it is more likely that he made a forensic choice not to do so. In any event, I am also of the view, that no miscarriage of justice flowed from counsel's failure to cross-examine Kylie about her conversation with the complainant.

147. It seems to me that the following facts point to the conclusion that it is more likely that the applicant's trial counsel did not cross-examine Kylie because he decided that such a course would be in the best interests of his client. First, counsel was very experienced in the conduct of criminal trials and it can be assumed, at least prima facie, that he was unlikely to have made the grossly negligent mistake contended for by Mr Danos. Next, it is apparent that when cross-examining Kylie he had available to him her statement to the police because he asked her some questions by reference to page 3 of it. It is most unlikely that, in those circumstances, he would have simply forgotten to cross-examine the witness on the material contained on page 2, particularly given that he had only a short time prior to that cross-examined the complainant by reference to that part of the document. Next, for reasons already mentioned, there was a real risk that such cross-examination would have been counterproductive. That he did not seek from the trial judge a ruling that there be no adverse comment made in relation to the fact that he did not relevantly cross-examine Kylie is, in my view, not conclusive on the issue now under consideration. As Mr Elston pointed out, it would have been apparent to counsel that his decision not to cross-examine the witness brought with it the risk of comment being made, something which is not uncommon in witness proceedings and, in a sense, is the "price" that is paid for the forensic decision not to cross-examine the witness on a particular issue where that would be expected to occur. In any event, to have raised the matter with the trial judge, as Mr Danos has suggested, would have meant conceding (at least before her Honour and the prosecutor) that Kylie erred in her statement as to her conversation with the complainant, and thus impliedly accepting the complainant's version of the events. In those circumstances, it is perhaps understandable that counsel may not have wished to raise the matter with the trial judge.

150. Furthermore, given the circumstances to which I have referred and those which I will mention in a moment, it is difficult to conclude that the tactical decision made by the applicant's counsel amounted to an error of judgment. At the relevant point in time counsel was conversant with the course which the trial was actually taking, which is something that this Court could only know about in general terms. Similarly, he was in a position to know the strength of Kylie as a witness and the effect that a possibly counterproductive cross-examination would have on the applicant's case. He was, therefore, in the best position to form a judgment as to whether to cross-examine Kylie on page 2 of her statement. In the circumstances, it seems to me that it would be speculation for us to seek to determine whether counsel made an error of judgment in not relevantly cross-examining Kylie. If it were necessary to make a decision on this point, I would not find that counsel erred in his judgment given the damage that cross-examination of Kylie on her conversation with the complainant could have caused to the applicant's case.

153. But even if counsel did err in the exercise of his judgment (or even if he was negligent as is claimed for the applicant) it could not be said that this resulted in a miscarriage of justice in the sense that it caused his conviction or that he was deprived of a real chance of acquittal. What may constitute miscarriage of justice in circumstances such as these was succinctly explained by the Full Court[21] in R v. Hadland[22]. In that case, it was alleged on appeal that there was a mistrial because defence counsel failed to call critical evidence. After considering authorities which discussed the general principles upon which a new trial may be granted if the Court thinks there has been a miscarriage of justice, the Full Court said[23]:

"In the end, we think that in a case of this kind we cannot say that there has been a miscarriage of justice within the meaning of s.568(1) [of the Crimes Act 1958] unless on the facts we are satisfied that if counsel at the trial had chosen the other course and called the additional evidence, it is so highly likely that the accused would have been acquitted as to make it unreasonable to suppose the contrary" (italics added).

157. See also MNG[24]. This and related passages in Hadland were referred to with approval in the dissenting judgment of Mason, J. in Ratten v. R.[25].

160. In my view, as I have said, it cannot be seriously argued that counsel's failure to cross-examine Kylie as contended for by Mr Danos resulted in the applicant being convicted or in his losing a real prospect of being acquitted.

163. For these reasons, I consider that this ground must also fail.

166. It follows that I am of the view that the application for leave to appeal against conviction should be dismissed.

170. I now turn to consider the grounds of the application for leave to appeal against sentence. Counsel for the applicant abandoned ground 1 and I will deal with the remaining grounds in the order in which they were argued.

Ground 3: Applicant sentenced on incorrect basis

175. It is convenient to deal with these grounds together. The applicant's counsel first sought to argue under ground 3 that her Honour sentenced the applicant on the incorrect assumption that the psychiatric report from Dr Lester Walton, which the judge sought for sentencing purposes, was not prepared because the applicant refused to be examined by Dr Walton. Mr Danos said that his current instructions were that there was no such refusal on the part of the applicant. Furthermore, counsel said the applicant is now prepared to undergo such an assessment.

178. But it is difficult to accept that the error contended for had occurred. After the applicant was found guilty by the jury, her Honour adjourned the hearing of the plea in mitigation for almost five months (from 14 September 2000 to 12 February 2001) to enable pre-sentence reports to be obtained, including a psychiatric report from Dr Walton. In about mid-December 2000, the judge was informed, principally by way of a letter dated 14 December 2000 from Dr Walton, that he could not prepare the required report because the applicant refused to co-operate. Consequently, her Honour brought the hearing of the plea for mitigation forward to 2 February 2001. At that hearing the applicant's trial counsel put the plea in a context where detailed reports of the psychologist, Mr Bernard Healey, and the earlier reports of Dr Lester Walton, as well as a reference from the general manager of Barwon Prison, were tendered in evidence. In addition, evidence was received from the applicant's former parole officer. Importantly, there was no suggestion by the applicant's counsel to contradict or explain the contents of Dr. Walton's letter of 14 December 2000 or to seek an adjournment of the hearing of the plea in mitigation so that Dr Walton could examine the applicant for the purpose of preparing a report. Indeed, counsel said at the outset of his submissions that, "Unfortunately [the applicant] did not co-operate with the psychiatrist for reasons best known to himself ...". Significantly, as Mr Elston for the Crown submitted, prior to the conclusion of the hearing, the applicant's counsel was given leave to confer with the applicant. Before doing so, counsel said to her Honour, "... any matters he wants to put to Your Honour I will put then". As a result, there was a short adjournment to enable counsel to obtain instructions. After the adjournment, counsel further addressed the Court but did not seek to correct anything said in relation to the applicant's failure to co-operate for the purpose of obtaining a psychiatric assessment.

181. After some discussion before us about the strength of ground 3 it became apparent that the applicant would be unable to establish error in Dr Walton's letter of 14 December 2000 and in the circumstances, the applicant abandoned ground 3 and instead added, with leave, a particular to ground 2 to the effect that her Honour placed undue emphasis on the applicant's refusal to make himself available for examination by Dr Walton in December 2000.

184. It is convenient to deal first with this "new" particular of ground 2. Her Honour's comprehensive and carefully reasoned sentencing remarks make it plain that she acknowledged, with regret, that Dr Walton's report could not be prepared and that this occurred because of the applicant's refusal to be assessed. But there was no suggestion in those sentencing remarks that the learned judge sought to punish the applicant for not co-operating with Dr Walton by increasing his sentence. The principles on which her Honour sentenced the applicant are clearly set out in the sentencing remarks and the applicant's refusal to undergo an examination does not form a basis upon which he was sentenced.

187. Mr Danos argued that another reason why the sentence is manifestly excessive is that the offence of rape, of which the applicant was convicted, although serious, is at the lower end of the scale for this crime. It was said that the applicant's criminal conduct in this case was only classified as a "rape" because of the extension of the definition of that offence. On a basis which is not clear to me, it was claimed that this warranted a lower sentence. In my opinion, however, this submission is wholly without merit.

190. The suggestion that digital rape falls at the lower end of the scale applicable to that crime has been rejected by this Court in R v. Schubert[26] and in R v. Sheriff[27]. The offence of digital rape is considered by Parliament to be just as serious as penile rape given that it has imposed the same maximum penalty of 25 years' imprisonment for the offence. Clearly, both digital and penile rape are inherently violent acts which the community will not tolerate and, even without accompanying violence, digital rape, as an offence, cannot be treated as a less serious offence than penile rape. The gravity of the offending - whether it be digital or penile rape - will, of course, depend on the particular circumstances of the case. As Tadgell, J.A. said of digital rape unaccompanied by violence[28] in Sheriff: "A very clear message ought to be sent to the community that a digital rape of this kind is intolerable in a civilised society". With respect, I entirely agree with that view and it seems to me that the distinction which counsel for the applicant sought to draw is wholly without foundation.

193. Mr Danos accepted, correctly, I think, that the claim that a sentence is manifestly excessive does not admit of much argument. Once the relevant facts and circumstances are ascertained, the sentence on its face is either manifestly excessive or it is not. It is the obligation of the sentencing judge to impose a just sentence having regard essentially to the gravity of the offence and of the offending, but taking into account circumstances personal to the applicant and other mitigating factors as well as relevant sentencing principles. It is not a matter what sentence this Court would have imposed on the applicant had it been the trial judge, but rather whether the sentence was within the range of sentences reasonably available to the sentencing judge.

196. The offence of rape is a very serious offence attracting, as I have said, a maximum term of imprisonment of 25 years. Moreover, the circumstances of the offending here were very serious. It was constituted by a violent attack on a young girl who was on her way home from school during daylight hours. It obviously caused her great trauma and distress and, as her victim impact statement makes plain, was a terrifying and humiliating experience for her to have to endure. The physical injuries which were caused to the complainant were also not insignificant. Given the criminal history of the applicant and the fact that the offending occurred while he was on parole, the principle of specific deterrence had to be an important sentencing consideration, as did the principle of general deterrence. Similarly, the

sentence had to reflect the court's condemnation of the crime. There was no remorse shown by the applicant for his criminal conduct and there was nothing advanced on the plea to ameliorate the operation of these sentencing principles or the requirement of the legislation as to cumulation in this case given that the applicant had to be sentenced as a serious violent offender.

200. Mr Danos submitted that the effective sentence will be eight years because of the balance of the term of imprisonment that the applicant must serve in respect of his conviction for murder, and that such a sentence offends the principle of totality. I note that this argument is not the subject of any ground of appeal. Be that as it may, my view is that, had the remaining sentence been of some duration, that factor may have been relevant to whether there are "exceptional circumstances" for the purposes of s.16(3)(B) of the Sentencing Act. But that is not the position in this case and I am unable to accept the argument that the sentences offend the principle of totality.

203. In the circumstances, the sentences were, in my opinion, well within the range of sentences that were reasonably available to her Honour. It follows that, in my view, ground 2 must fail.

206. Consequently, and notwithstanding Mr Danos' forceful arguments, I would dismiss both applications.

211. I agree that the applications for leave to appeal against conviction and sentence should be refused for the reasons given by Chernov, J.A.

216. I agree that each application should be dismissed for the reasons given by Chernov, J.A.

221. The order of the Court will be that the application for leave to appeal against conviction and leave to appeal against sentence be dismissed.

[4] [2000] HCA 3; (2000) 199 C.L.R. 620 at 637.

[5] The trial had concluded more than two years ago.

[6] [2002] VSCA 7 per Phillips, Batt and Vincent JJ.A.

[8] [2001] VSCA 183 per Phillips, J.A.

[11] [2002] VSCA 154.

[13] See R. v. Birks (1990) 19 NSWLR 677 at 684-685 per Gleeson C.J., (with whom McInerney J. agreed).

[14] At 17. See also, for example, R v Wakim [1998] 2 VR 46 at 51, per Ashley, J.

[15] (1990) 19 N.S.W.L.R. 676 at 684-685.

[16] At [38] per Phillips, J.A. and at [51] per Batt, J.A. and the authorities to which their Honours refer.

[17] (Crockett, McGarvie and Gobbo, JJ.).

[18] [1984] VicRp 67; [1984] V.R. 751.

[20] Unreported, Full Court of the Supreme Court of Western Australia (Kennedy, Wallwork and Heenan, JJ.) 8 April 1997 at 7-10 per Kennedy, J.

[21] Winneke, C.J., Gowans and Gillard, JJ.

[22] [1969] VicRp 93; (1969) VR 725.

[24] At [51] per Batt, J.A. And R v. Koleman [2000] VSCA 141; (2000) 2 V.R. 20 at 41 per Callaway, J.A.

[25] [1974] HCA 35; (1974) 131 CLR 510 at p.526.

[26] [1999] VSCA 25 at [11] per Brooking, J.A. and [19] per Winneke, P.

[27] Unreported, 19 March 1998 per Tadgell, J.A. at [12] with whom Callaway and Buchanan, JJ.A. agreed.