R v Hoang [2007] VSCA 117

1 I have had the considerable advantage of reading in draft the reasons for judgment of Neave JA. I agree that the application should be disposed of as her Honour proposes, for the reasons which she gives.

2 I also agree with Eames JA about the need for the terms and effect of s 360A to be explained to an unrepresented accused as soon as practicable after the commencement of proceedings. Because the trial judge will very often have had no involvement in the pre-trial hearings, the trial of an unrepresented accused should not be allowed to commence until the judge is satisfied that the question of the accused's eligibility for an order under s 360A has been properly investigated.

3 For the reasons given by Neave JA, I agree that the application for leave to appeal should be granted, the appeal be allowed and a new trial be ordered. Given the length of time that has passed since the events occurred, out of which the prosecution arose, it may well be that a re-trial would not be pursued by the Director of Public Prosecutions, but that is properly a matter that should be left for the exercise of his discretion.

4 I add only one matter concerning grounds 1 and 2. In my opinion, it would be appropriate that as a matter of course, and at the earliest opportunity, an unrepresented accused should be provided with a copy of the terms of s 360A of the Crimes Act 1958 and have explained to him or her the effect of its terms, in particular that the onus rests with the applicant.

Background

5 The applicant, Mr Hoang, was convicted after a jury trial on one count of stalking between 18 June 1999 and 9 February 2004. He now seeks leave to appeal against that conviction. The facts which gave rise to his conviction are as follows.

6 Mr Hoang was a student at the Monash University Caulfield Campus. The complainant was a staff member at the same University. In December 1998 the complainant stood behind Mr Hoang in a queue in the University library. According to Mr Hoang, the complainant smiled at him. Beginning in December 1998 and throughout the period covered by the presentment, the applicant, on a number of occasions, phoned the complainant at work and sent her letters and cards and gifts in an attempt to persuade her to have a relationship with him.

7 In his first phone call to the complainant, which Mr Hoang made in December 1998, he addressed her by her first name, said he was her long-suffering secret admirer and that he wanted to go out with her. The complainant's evidence was that she did not hear his name and did not know who he was, but that she had told him she had a boyfriend and was not interested in having a relationship with him. The complainant said that the applicant asked her if she would be interested in having a relationship with him if she broke up with her boyfriend. She said she would not. In his police interview and at trial the applicant said that he had asked the complainant out but denied asking her whether she would be interested in a relationship with him if she broke up with her boyfriend.

8 Mr Hoang telephoned the complainant again in April or May 1999 and said that he wanted to meet her in the library and that he wanted to meet everyone he had a problem with. Again she did not hear his name and she declined to meet him. In his police interview, Mr Hoang said that this was around the time he was having problems with the University, but that he couldn't recall that phone call and that he would not have said this to the complainant.

9 On 21 June 1999 the complainant received a letter at work. The letter had the applicant's name and address on the back. It referred to the way she had looked at him when she was coming back from a lunch break and invited her to have coffee with him on the coming Saturday. The complainant did not respond but reported the matter to the University authorities and the police were contacted.

10 On 24 June 1999 the applicant again telephoned the complainant, who identified him as the same caller as before. She told him "I don't want you to contact me in any way, shape or form. Do you understand that?". The complainant again reported the matter to University authorities and Mr Hoang was sent a letter from the University Solicitor's office telling him not to contact the complainant or disciplinary action would be taken. The applicant confirmed that the complainant had said this to him on the phone and that he had received this letter.

11 The complainant said that on 15 September 1999 she received another telephone call from the applicant and hung up immediately. The applicant did not deny this phone call. Following the call, the University took various security measures including locking the doors on her floor, changing her work email address, vetting her visitors and calls at reception, and escorting her to her car after work.

12 On 17 September 1999 the complainant obtained an interim intervention order from the Magistrates' Court prohibiting the applicant from contacting her and from causing any other person to contact her or engage in other specified acts. The order also prohibited the applicant from coming within 400 metres of the Monash Caulfield Campus. In his police interview Mr Hoang confirmed that he was served with that order. On 30 September 1999 the complainant obtained a final intervention order in the same terms as the interim order. The applicant did not appear at that hearing.

13 The day before the final intervention order was obtained, the complainant had received a phone call from a counsellor at Monash University, from which she understood that the applicant would not contact her again. However, on 22 December 1999 she received a dozen red roses and a card from the applicant which depicted a pair of underpants on the front of it. The card had an inscription including the words "my heart pants for you". The applicant admitted sending the roses and card but stated that he thought this was before the final intervention order was made.

14 On 16 February 2000 the applicant sent a dozen red roses, chocolates and a Valentine's Day card to the complainant's workplace. A disciplinary hearing was held by the University in relation to the applicant's behaviour and it was decided to exclude him. He was sent a letter advising him of his exclusion.

15 The applicant later applied for revocation of the intervention order but did not appear when the matter was listed for hearing. The applicant appeared when the matter was re-listed for hearing on 18 March 2001, but the application was dismissed. This was the first time that the complainant had ever seen the applicant.

16 On 9 September 2002 the complainant received a phone call in which the caller asked her to check her fax machine. When she did so she found a fax from Mr Hoang offering to help her purchase shares and asking that they meet in the city. She returned to her phone and asked the caller his name. When the applicant gave his name she called him "a shit", told him never to contact her again and hung up. In his police interview the applicant conceded that, with hindsight, this phone call was a breach of the intervention order.

17 In December 2002 the complainant received a phone call from the applicant's brother who said he wanted to pass on a Christmas present from the applicant. She said she would not accept it and explained why. In his police interview the applicant denied that he had asked his brother to ring the complainant but said that he had asked his family to buy a Christmas card and chocolates and send them to the complainant's work address. After this phone call, the complainant asked a colleague, Nicole Stevens, to screen her telephone calls and to open her mail.

18 On 16 July 2003 the complainant received a letter signed by the applicant beginning "Dear Temptress Andrea". The letter referred to her appearance, invited her to dinner and asked her to contact him.

19 On 23 September 2003 another letter was sent to the complainant. It was opened by Ms Stevens. The letter invited the complainant to dinner but suggested she might want to go away for the whole weekend instead. Ms Stevens rang the applicant on the number provided and told him that the complainant had gone interstate and did not want to be contacted by him. In his police interview the applicant admitted that Ms Stevens had said this to him, but said that he had thought this was untrue as he had seen someone who looked very similar to the complainant a few days earlier while he was driving.

20 In late September 2003 another of the complainant's colleagues, Mr Nguyen, was approached by an Asian man in the stairwell outside the office where he worked with the complainant and with Ms Stevens. He was asked where Andrea was and if he had "Andrea's phone number". Nguyen said that the complainant was no longer working there. Nguyen said that throughout the conversation the man was constantly looking into the office in which he worked. In his police interview the applicant admitted to this conversation and also to phoning the University switchboard to find out if the complainant was still working at the University.

21 On 10 October 2003 the complainant received another letter signed by Mr Hoang beginning with the words "My darling seductress Andrea". The letter said "after repeated attempts at winning your affection... I should change my tactics." It went on to explain in detail how an evening with the applicant would unfold, including how the applicant and the complainant would "engage in passionate lovemaking". The applicant confirmed sending the letter in his police interview.

22 On 20 October 2003 the complainant answered a phone call from a caller who hung up. In his police interview the applicant admitted making this phone call. He said he rang because the complainant had not responded to his letter and he wanted to find out if she had really left the University, as Ms Stevens had said.

23 On 18 November 2003 Mr Hoang again wrote to the complainant asking her to have dinner with him or "to go away to Tasmania for the whole weekend instead of the conventional dinner date". The complainant took that letter to the police.

24 On 24 November 2003 the applicant was interviewed by the police. Apart from the denials in his police interview I have already mentioned, he admitted to making the phone calls and sending the letters, cards and gifts as described above. He said that his contact with the complainant was triggered by the fact that she had smiled flirtatiously at him in the University library and that he had continued his contacts because he thought she had given him "mixed signals". He also said that he did not intend to harm or frighten the complainant.

25 At the trial the complainant gave evidence that after the letter in early 1999 she began to modify her behaviour. These modifications included not going out for lunch, not going to the gym, not going to the university library or the local shopping plaza, parking in different places around the Caulfield campus, being escorted to and from her car and changing her work environment as described in para 11. She also said that she became jumpy whenever the phone rang, that she obtained a silent telephone number at home, that she phoned VicRoads to see whether it was possible for a person to obtain information about a person from their car registration records and that she had her name taken off the electoral roll.

26 When asked whether she had any concerns for her safety, the complainant said that she was constantly looking over her shoulder, checking that doors and windows were locked, walking around the block if she thought a car was following her and screening her phone calls. In addition, the complainant started sleeping with a knife, became wary of people and stopped smiling at people because the applicant had said she had smiled at him. Mr Hoang's attention had a negative effect on the complainant's personal relationships and social life.

Grounds 1 and 2: the applicant's lack of legal representation

27 The first and second grounds of appeal can be dealt with together. The first ground alleges that the applicant's lack of legal representation at trial caused a miscarriage of justice and the second ground alleges that the learned trial judge should have exercised his discretion under Crimes Act 1958, s 360A, to order Victoria Legal Aid to provide assistance to the accused.

28 The circumstances which resulted in the applicant being unrepresented at trial were as follows. The applicant was committed for trial on 21 March 2005. At that time he was represented by Victoria Legal Aid. Victoria Legal Aid filed a Notice of Ceasing to Act on 26 April 2005, after service of the Crown Summary for Case Conference.

29 In the first case conference, held on 26 May 2005, the applicant said that he did not have legal representation. His Honour Judge Punshon, who presided over the first case conference, told the applicant that:

"...conducting a case in this court as an unrepresented accused person is very difficult and these are very serious matters... it is absolutely critical that you get legal advice and if possible that you have people representing you."

30 Having discussed why the applicant should see a Legal Aid lawyer his Honour also said:

"There is a second alternative and that is that you can apply for the court to order that Legal Aid be provided to you. I am not saying that that will be successful or unsuccessful. But the catch 22 for you, the difficulty for you, is that it seems to me that you need legal representation to do that as well. [If] both those things fail. If you can't get Legal Aid and you can't afford to be represented you will be by yourself and that's where you don't want to be. OK?"

31 The learned judge then advised the applicant to see a Legal Aid lawyer immediately and adjourned the matter until the following day to allow him to do so.

32 When the case conference resumed on 27 May 2005 his Honour discussed the matter with a representative of Legal Aid and referred to the possibility that a "350A" [sic] application could be made on behalf of the applicant. The applicant was present during this discussion. The matter was adjourned for two weeks to clarify legal aid and other matters. Mr Hoang was informed by his Honour that it was necessary for him to provide documentation to Victoria Legal Aid on his financial situation so that his eligibility for Legal Aid could be assessed.

33 A mention hearing was held by his Honour the Chief Judge on 10 June 2005 and the matter was adjourned. A further mention was heard on 1 July 2005. At that mention a representative of Victoria Legal Aid appeared and the applicant appeared in person. The applicant said that he had provided financial documents to Legal Aid but he had not been funded.

34 The applicant's bank statement showed that $18,000 had been withdrawn from his bank account. The applicant said that he had provided a statutory declaration to Victoria Legal Aid indicating that these amounts belonged to his parents. He was then asked by Victoria Legal Aid to provide documents setting out his parents' financial situation, but he declined to do so saying his parents couldn't financially support him, he was an independent person and he didn't want to drag his parents into the matter. The learned judge again warned him of the importance of having legal representation at trial and urged him to reconsider providing the requested documentation to Legal Aid.

35 A directions hearing, which the applicant did not attend, was held on 13 October 2005. Counsel for the Crown indicated that the applicant would not be assisted by Legal Aid because he had declined to provide the required information.

36 At the commencement of the trial on 21 November 2005 the learned trial judge advised the applicant of the seriousness of the charges and of the desirability of obtaining legal representation. His Honour adjourned the matter to enable the applicant to discuss the matter with Legal Aid again. After the adjournment a Victoria Legal Aid representative appeared and informed his Honour that the lawyer consulted:

"wasn't instructed to take any steps in the proceeding or try and get Legal Aid for this gentleman and that the accused wanted to carry on.... The position from Legal Aid's point of view is that whether the application for Legal Aid is renewed or whether an application is considered by Your Honour under s 360A, the key issue is this money and documents relating to that money."

37 After some discussion between the learned trial judge, the Victoria Legal Aid representative and the applicant, the applicant again declined to provide the requested documentation relating to the money withdrawn from his bank account. Again his Honour explained to the applicant that it was important that he should have legal representation. There was then discussion of the admissibility of certain statements in the applicant's record of interview between the learned trial judge, counsel for the Crown and the applicant and a number of answers were excluded. His Honour discussed with the applicant the reasons why it might be desirable to exclude certain answers and in most cases the applicant agreed to those exclusions. The following day his Honour suggested to Mr Hoang that he might wish to consider a plea. Mr Hoang agreed to speak to the Crown's instructing solicitor. However, these discussions did not result in any resolution of the matter.

Ground 2: The failure to make an order under s 360A

38 I deal first with the second ground of appeal. In essence, it was submitted that the learned trial judge erred by:

•

failing to consider whether to make an order under s 360A, either at the outset of the trial or later, when the applicant's disadvantage became apparent; and

•

failing to advise the applicant of his right to make an application under s 360A.

39 At the relevant time,[1] the Crimes Act 1958, s 360A(2) provided that:

"If a court is satisfied at any time before or during the trial that--

a) it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and

b) the accused is in need of legal assistance because he or she is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial--

the court may order Victoria Legal Aid to provide assistance to the accused, on any conditions specified by the court, and may adjourn the trial until such assistance has been provided."

40 Counsel for the applicant referred to the discussion between his Honour and the applicant prior to commencement of the trial, when the applicant told his Honour that he was not prepared to provide further documents to Legal Aid, dealing with the ownership of the $18,000 withdrawn from his bank account. The following exchange occurred:

"His Honour: I am really saying to you now you've heard what [the legal aid lawyer] has said, are you happy to proceed without a lawyer and represent yourself in this trial?

Applicant: Given - given what [the legal aid lawyer] has just said, even though I prefer to be represented, I don't have any choice there, do I?

His Honour: That's not so, but you see the problem is this. A long time ago as I understand it, you were told that they need further documents, further proof and you've never gone back to give them any further proof and never got in touch with them. So naturally Legal Aid say "Well there is no further proof and if there is we don't know what it is, so we can't approve his application" and they haven't approved your application.

It's not - they would be I imagine reluctant to say, or to accept that you will now provide any such proof, or that you can provide any such proof, and the attitude is "Well , until you do we're not going to fund you", and that's an understandable attitude.

Applicant: Yes."

41 Counsel for the applicant submitted that it was apparent from the beginning of the trial that the applicant would not receive a fair trial unless he was legally represented and that even if this was not the case at the outset, it became clear during the course of the trial. She submitted that although the learned judge was concerned about Mr Hoang's capacity to represent himself effectively, his Honour dealt with this problem by giving the applicant an opportunity to provide the financial information necessary for Legal Aid to determine his eligibility. He had not put his mind to the question whether an order should be made under s 360A. Further, although his Honour told the applicant that it was necessary to provide further financial information to Legal Aid to enable his eligibility for aid to be determined, his Honour did not tell the applicant that he could apply for an order under s 360A, or explain the criteria which the court would apply in deciding whether to make such an order. Counsel submitted that the applicant's question "I don't have any choice there, do I?" showed that the applicant was unaware that he could apply for an order under s 360A.

42 Counsel for the Crown submitted that his Honour was entitled to assume that he could not make an order under s 360A, because the applicant's behaviour showed that he was not prepared to give sufficient financial information to enable the Court to exercise its discretion in his favour. Counsel said that section 360A requires the Court to be satisfied both that it will be unable to ensure that the accused will receive a fair trial unless he or she is represented and that:

"(b) the accused is in need of legal assistance because he or she is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial."[2]

43 Counsel for the Crown submitted that the applicant had been asked by Victoria Legal Aid to provide further information about his financial circumstances, but had refused. He had been advised in previous case conferences and by the trial judge that assessment of his eligibility for legal aid required the provision of financial information. Numerous efforts were made to encourage him to liaise with Victoria Legal Aid and to provide the relevant financial material before the trial. He had declined to do so.

44 Under s 360A (2):

"the legal burden of proof for the purposes of sub-section (2)(b) that the accused is unable to afford the full cost of obtaining legal representation rests on the accused."

45 Counsel for the Crown said that the applicant's refusal to provide information about his financial circumstances meant that this burden of proof could not be satisfied. It would therefore have been futile for his Honour to consider the making of an order under s 360A. The applicant had been advised of the importance of obtaining legal representation and reference had been made to s 360A in the first case conference on 26 May 2005, and in a discussion between the learned trial judge and the representative of Victoria Legal Aid, which occurred in Mr Hoang's presence.

46 Counsel for the Crown contended that the principle in Dietrich v R,[3] that the trial of an unrepresented accused for a serious offence should only proceed in exceptional cases,[4] applied only where the accused is unrepresented "through no fault of his own".[5] In this case the applicant was unrepresented because he had refused to provide financial information to Victoria Legal Aid, so that he did not lack representation "through no fault of his own".[6]

47 Further, when the applicant was asked by his Honour whether he was "happy to do the trial" himself he said:

"I informed [the legal aid lawyer] that apart from the issue of the money in my bank account, the reason that I decided to go on my own was that I felt that he was too nice a person to cross-examine [the complainant] because I strongly believe that [the complainant] has provided untruths in her statement to the police and it's likely that when she appears in court as a witness, she's likely to repeat the same untruths on the witness stand..."

Counsel for the Crown argued that, in effect, the applicant had simply chosen to represent himself. Having made this choice the applicant could not now claim that a miscarriage of justice had occurred, simply because he was not legally represented.

48 In my opinion his Honour should have turned his mind to whether to order that legal assistance should be provided to the accused under s 360A of the Crimes Act 1958. The fact that the applicant did not apply under s 360A did not relieve his Honour from considering whether the applicant would receive a fair trial without legal representation. It would defeat the purpose of s 360A to require an unrepresented person to make a formal application for an order, before the judge must exercise his or her discretion under the section.

49 Although His Honour was obviously concerned about whether Mr Hoang would receive a fair trial if he was not legally represented, it does not appear that the learned judge considered making an order under s 360A if legal aid were not otherwise available. The discussion between his Honour, counsel for the Crown and the applicant related to whether the applicant wished to represent himself, rather than to the question of whether his Honour should exercise his discretion under s 360A.

50 In my view, a trial judge should, in the case of an unrepresented accused, tell the accused of the right to apply under s 360A and of the evidence which must be before the court for the purpose of making an order. While this should normally be done at the beginning of the trial, it may also be necessary for the trial judge to consider making an order during the course of the trial, if it later becomes clear that the accused will not receive a fair trial unless he or she is represented.

51 I do not accept the Crown submission that it was unnecessary for his Honour to consider whether he should make an order under s 360A because the applicant had said that he would not provide further information about his financial circumstances. This submission assumes that the applicant would have objected to providing relevant financial information to the court for the same reasons that he objected to providing the requested financial information to legal aid. Even if he turned his mind to the issue, I do not think that his Honour was justified in assuming that the applicant would not provide financial information to the court, merely because he had not provided it to Victoria Legal Aid. To satisfy himself on this matter his Honour should have explained the criteria for making a s 360A order to the applicant and asked the applicant if he was prepared to testify about his incapacity to afford the full cost of obtaining legal representation. In the absence of such an explanation the applicant is unlikely to have understood that the court had the power to order the provision of legal aid, or the criteria which his Honour would have been required to apply in determining whether such order should have been made.

52 What are the consequences of his Honour's failure to advise the applicant of the court's power to order provision of legal assistance and to consider making such an order? Counsel for the applicant submitted that his Honour's failure to consider s 360A was, in itself, an error of law amounting to a miscarriage of justice. If this submission is correct, the appeal must be allowed, whether or not it can be demonstrated that any relevant miscarriage actually occurred. Counsel's alternative, and less absolute, proposition was that events during the course of the trial resulted in a miscarriage of justice because the applicant was not legally represented. This proposition was the subject of ground 1[7] of the appeal which is discussed later in my reasons.

53 Case law appears to support the less absolute proposition -- that is, that an appeal will only be allowed if the trial miscarried as a result of the applicant's lack of legal representation. The majority in Dietrich did not accept the proposition that a trial without legal representation will always be unfair, so that a conviction occurring in such circumstances must inevitably be quashed.

54 Although Mason CJ and Mc Hugh J said that:

"...the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only."[8]

"...appellate courts in this country do not interfere with convictions entered at trial purely on the basis that there was unfairness to the accused in the conduct of the trial. The appellate jurisdiction in criminal matters depends on the conclusion that there was a 'miscarriage of justice' such that the applicant has 'thereby lost a chance which was fairly open to him of being acquitted' ... or 'a real chance of acquittal.' ... Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused."[9]

55 In R v Phung[10] the applicant appealed against his conviction on the ground that no order for legal assistance had been made under s 360A. The court below had held that a trial of the accused without legal representation would not be unfair, because he had not raised a triable issue, but simply put the Crown to its proof. The Court of Appeal held that there was a presumption that a fair trial required representation, so that an order should normally be made under s 360A(2), if the financial requirements in s 360A(2)(b) were satisfied.[11] However, in deciding whether the appeal should be allowed, the court considered whether a miscarriage of justice had occurred in the conduct of the trial. Brooking JA said:

"We have the benefit of knowing what took place at the trial. The question for us is, not whether an application under s 360A should have been granted, but whether there has been a miscarriage of justice. The judgment of Buchanan JA demonstrates that there has. The trial was not fair. To take one important example of the consequences of the applicant's appearing in person, he has been convicted on significant inadmissible evidence. If he had been represented, he might not have been convicted."[12]

56 Similarly, Buchanan JA referred to a number of matters that made the conduct of the trial unfair, including the admission of inadmissible evidence, the failure of the applicant to give evidence, his failure to test the evidence effectively and his rudimentary address to the jury. His Honour said that:

" If [s 360A] does not operate so as to avoid an unfair trial, that is, if a miscarriage of justice occurs in that a trial is not conducted fairly in the absence of legal representation of the accused, this court can set aside the verdict since (ex hypothesi) there has been a miscarriage of justice within the meaning of s 568(1) of the Crimes Act."[13]

57 On the basis of these authorities, I conclude that his Honour's failure to consider the exercise of his discretion under s 360A, or to tell the applicant that Victoria Legal Aid could be ordered to assist him if he satisfied the requirements of the section, did not, of itself, amount to a miscarriage of justice. Even if it were to amount to a miscarriage in some situations, for example where the requirements of s 360A are clearly satisfied, it did not do so in the circumstances of this case. Even if the applicant had provided the financial information his Honour might not have been able to order the provision of assistance under s 360A, because he was not satisfied that the applicant was unable to afford legal representation. In effect ground 2 asserts that there was a miscarriage of justice because the applicant was deprived of the chance to provide information to the court which might (not would) have resulted in an order for that Victoria Legal Aid provide assistance.

58 It is therefore necessary for the applicant to show that his lack of legal representation resulted in an unfair trial, amounting to a miscarriage of justice. The first ground of appeal alleged a number of other errors which were said to have occurred because the applicant was unrepresented. I now turn to ground 1.

Ground 1: Miscarriage of justice arising from the fact that the applicant was unrepresented

59 Counsel for the applicant submitted that a combination of errors made during the course of the trial had resulted in a miscarriage of justice. In summary, it was said that the trial judge had erred by:

(a) not exercising his discretion to permit the applicant to sit at the bar table and requiring him to conduct his case from the dock;

(b) informing the applicant that the evidence of the witness Kinaidis was inadmissible, without a proper consideration of the issue of admissibility;

(c) admitting hearsay and prejudicial evidence given by the complainant during cross-examination;

(d) admitting material in the record of interview which was inadmissible and/or prejudicial to the applicant; and

(e) requiring the applicant to conduct his own cross-examination of the complainant.

60 For the reasons given below, (a) (b) and (d) are not made out. However in my opinion, the applicant's conduct of his own defence led to the admission of some inadmissible evidence. Most of this evidence emerged during the applicant's cross-examination of the applicant. It follows that a miscarriage of justice occurred because the applicant was unrepresented. I briefly discuss the matters alleged in the applicant's outline of argument.

61 At the commencement of the trial the applicant asked the trial judge why he was required "to stand here" and said that it was inconvenient for him to take notes in the dock.

62 His Honour explained that:

"[the dock] is where persons who are on trial sit. You can't sit at the Bar-table. That's reserved for people who have qualified, specifically lawyers and so on. But I'll endeavour to have something there so that you can take notes conveniently and I'll endeavour to have people speak in such a way that you can hear them clearly and so on.''

63 A little later the following exchange occurred:

Applicant: "I've checked with the Office of Registrar downstairs and they confirm with me that since I represent myself, I am entitled to sit at the table alongside with the prosecutor."

His Honour: "Well, that is not so, I'm afraid."

64 The applicant then asked the learned judge to identify the legislation that prevented him from sitting at the bar table. His Honour said that there was no such provision but--

"The fact is you can't and that's that, finish."

65 It would have been open to the trial judge to permit the applicant to sit at the bar table and, in my opinion, it will often be appropriate to follow this practice. However, it was not an error to refuse to allow him to do so. In R v Burke[14] the Queensland Court of Criminal Appeal considered and rejected a submission that the trial judge had erred by refusing to allow the accused to have a lay person to sit beside him and assist him to conduct his defence (a "McKenzie Friend"[15]). In the course of considering this argument the court also considered whether the accused should have been permitted to sit at the bar table. Ambrose J said:

"Upon the facts of the present case there can be little doubt that the trial judge had a discretion to permit the appellant to leave the dock and sit at the bar table for the purpose of conducting his defence... In my view it would be rare that circumstances would lead to a man defending a charge of an indictable offence before a jury being permitted to conduct his case from the bar table. No doubt there are circumstances which will justify this course, however in my experience in the conduct of a trial for an indictable offence the bar table is used by professional lawyers or their agents and not by the accused persons on trial... If all persons upon trial for indictable offences are confined to a dock in the criminal court as a matter of general practice and this is known in the community, no adverse inferences will be drawn against an accused person kept in the dock based upon any 'practice' that might develop where persons thought not to pose any security risk are permitted to sit at the bar table."[16]

66 Appellate courts rarely interfere with the exercise of a discretion by a trial judge on matters of practice and procedure. This is even more the case--

"when the Court of Appeal is asked to interfere with a decision of a judge as to the conduct of business in his or her own court."[17]

67 There was no danger that the jury would assume that the applicant was guilty of the offence with which he was charged, simply because he conducted his case from the dock. His Honour's jury charge emphasised the presumption of innocence several times. Further, at the commencement of the trial, his Honour told the jury that:

"The fact that a person is not represented and is representing himself imposes additional duties of fairness on the prosecutor and upon me the trial judge to see that his case, Mr Hoang's case is fairly put before you.

And it imposes an additional duty upon you too, to consider that case that's put and to consider what might have been said about it by a lawyer or counsel if he had counsel acting on his behalf. So in a sense we all have to be--in a sense we all have to be his counsel in this case, whilst at the same time being careful also to fill our own respective duties which will be explained to you as the case goes on."

68 The applicant contended that the above comment should not have been made because it created "the impression on the jury that the applicant was receiving undue lenient treatment". I reject that submission. It is entirely appropriate for a trial judge to draw the attention of the jury to the difficulties faced by an unrepresented accused. Although counsel for the applicant submitted that his Honour should not have done so, a failure to draw attention to these difficulties might well have been relied on as a ground of appeal.

69 Ms Kinaidis provided counselling to the applicant. The applicant sought to call her as a witness at the trial to testify that he had told her that he thought the complainant was "just playing a game". Counsel for the Crown said that this evidence was self-serving. His Honour responded that while this contention might be strictly correct:

"you may also consider in all the circumstances it wouldn't do a lot of harm to the Crown case if such evidence were available in a simple form."

70 In later discussion between his Honour and the applicant it became apparent that Mr Hoang had seen Ms Kinaidis after he had been interviewed by the police, but before he was charged. The applicant told his Honour that the only purpose of calling Ms Kinaidis was to corroborate that he thought that the complainant was "playing games" with him. In response to an inquiry from his Honour, counsel said that the Crown would concede that the applicant had told Ms Kinaidis that he thought the complainant was playing games with him, but would submit that this evidence should be given little weight. The accused agreed to this course of action.

71 Later in the proceedings the applicant said that he wanted Ms Kinaidis to give evidence because wherever he went there were people who looked like the complainant who looked at him suggestively. He said that he would contact Ms Kinaidis. His Honour reminded him of the Crown concession and said that he would not delay proceedings by granting an adjournment to call a witness whose evidence would be inadmissible because it was self-serving.

72 There is no merit in the submission relating to the trial judge's refusal to order an adjournment so that the applicant could call Ms Kinaidis. Counsel for the Crown could have sought exclusion of this evidence on the ground that it was self-serving and possibly because it was hearsay. Even if it were admissible, the Crown concession makes it impossible for the applicant to contend that the trial was unfair because Ms Kinaidis was not called as a witness.

(c) and (d) Admission of hearsay evidence and prejudicial evidence

73 It was also submitted that the trial was unfair because hearsay and other prejudicial evidence was admitted as a consequence of the applicant's lack of legal representation. The applicant's outline of submissions refers to:

•

inadmissible evidence in the record of interview;

•

the fact that the complainant spoke to various authorities including university security, police and solicitors and gave evidence as to what she was advised by them;

•

hearsay evidence relating to a University disciplinary hearing;

•

the complainant's expression of the opinion that the applicant had "some type of psychiatric condition";

•

the fact that the complainant was in possession of material on stalkers and that she was advised by a stalking management specialist to discontinue sleeping with a knife under her pillow because "it might be used against" her;

•

the fact that the applicant unsuccessfully applied to have an intervention order revoked;

•

the fact that the complainant received a call on 20 October 2003 in which no one spoke to her;

•

a conversation the applicant had with the applicant's brother in which he informed her that he was "unaware that the defendant was stalking" her; and

•

a suggestion by the prosecutor that the applicant was attempting in the course of his cross-examination to discover where the complainant was employed.

74 No particulars were provided in oral argument as to the matters which should have been excluded from the record of interview. His Honour made considerable effort to guide the applicant in relation to the record of interview. Prior to jury empanelment his Honour, counsel for the Crown and the applicant discussed its contents and excluded numerous questions and answers thought to be prejudicial to the accused or inadmissible.

75 During examination in chief the complainant referred to the contact she made with police and University staff, in an effort to discourage the applicant's overtures. This evidence was relevant because it related to the question of whether the course of conduct engaged in by the applicant--

"aroused apprehension or fear in the [complainant] for his or her own safety."[18]

76 The complainant referred in her evidence to what she had been told when she sought advice as to what to do about the unwanted contacts. To the extent that she referred to the contents of that advice her answers were hearsay evidence, though counsel for the Crown immediately told her she should not refer to these matters.

77 The evidence that the University had excluded the applicant was of peripheral relevance and arguably had the capacity to prejudice the jury against him. However, given that there was no contest as to whether the applicant had engaged in the conduct described above I cannot see that the admission of this evidence resulted in a miscarriage of justice.

78 Most of the prejudicial evidence about what the complainant did in response to the applicant's behaviour emerged in her answers to the applicant's cross-examination. This included the complainant's reference to her belief that the applicant had some type of psychiatric condition, her evidence that she had obtained material on people who stalk and her evidence that she had discontinued sleeping with a knife under her pillow because of advice by a stalking management specialist that "it might be used against me". His Honour warned that some of this was inadmissible opinion evidence. His Honour attempted to discourage the applicant from questioning the complainant in such as way as to evoke these answers and warned the applicant that these questions were "not doing [him] any good," though he did not warn the jury to disregard it. I return to the applicant's cross-examination of the complainant below.

79 The evidence that the complainant had obtained an intervention order against the applicant was directly relevant to the issue of whether the applicant knew, or in all the particular circumstances ought to have understood,[19] that engaging in a course of conduct of that kind would be likely to cause [mental harm] or arouse apprehension or fear in the complainant for his or her own safety.[20] The same applies to the evidence that he had unsuccessfully sought to have the intervention order revoked. Although this evidence was prejudicial to the applicant, in my view its prejudicial effect was outweighed by its probative value.

80 I cannot see any objection to the admission of the complainant's evidence that she received a call on 20 October 2003 and that no-one spoke to her. In his record of police interview the applicant admitted that he had made this phone call and it was clearly relevant to the issues at hand.

81 The complainant's evidence that the applicant's brother told her that "he was unaware that the defendant was stalking [her]" was inadmissible because it was hearsay. It was also potentially prejudicial. I note, however, that the applicant admitted asking his family to deliver a gift to the complainant. In my view the emphasis in his Honour's jury charge on the necessity to show that the applicant ought to have known of the effect of his conduct on the applicant was sufficient to overcome the prejudice caused by the reference to "stalking" in the complainant's evidence.

82 Finally, I would reject the submission on behalf of the applicant that his Honour should have permitted the applicant to cross-examine the complainant about whether the applicant had followed her. The Crown case was not based on a course of conduct which included allegations that the applicant had followed the complainant, but on the fact that he had telephoned her, written to her and sent her gifts.

83 The applicant's outline of argument submitted that:

"The applicant was placed in the invidious position of having to cross-examine the alleged victim of his own stalking. His cross-examination was ineffective and disorganised. The anger and resentment the complainant felt towards him was apparent and her evidence in cross-examination was intemperate and emotive."

84 In my view this ground of appeal is made out. It is clear from the transcript that the accused was not competent to cross-examine the complainant effectively. As Mason CJ and McHugh J said in Dietrich:

"An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge or skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown. The hallowed response that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a 'helping hand' to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems." [21]

85 Most of the evidence to which the applicant now objects emerged in response to the applicant's cross-examination. His Honour made every effort to assist the applicant, and on a number of occasions warned him that particular questions were exposing him to the risk that the witness would say something detrimental. However, the applicant's cross-examination of the complainant is likely to have damaged his case in the eyes of the jury. His questions tended to confirm the impression that he was obsessed with the complainant and had been unable to accept that she was not interested in having a relationship with him. The applicant was unaware that he could ask the learned trial judge to direct the jury to disregard prejudicial matters contained in some of the complainant's answers in response to his cross-examination. Further, many of the questions put by the applicant concerned his phone calls and other communications with the complainant. Almost all of this evidence was uncontested and simply confirmed the answers which the applicant had given to questions in his police interview.[22]

86 In my view the applicant did not receive a fair trial because he was incapable of cross-examining the complainant effectively. As Buchanan JA said in R v Phung:

"...our system of criminal justice, in which the judge acts as adjudicator and plays no part in the investigation or prosecution of the crime or in establishing any defence to the charge, requires the law and the facts on both sides of each question to be identified, introduced, made evident and explained by the adversaries. Unless they are represented by persons trained and skilled in such tasks, generally speaking there can be no guarantee that the system will operate properly and justly." [23]

"...rare cases can be imagined in which the capacity of the accused to conduct the defence in person is such that a trial without legal representation would not be unfair." [24]

88 This is not such a case. Although the applicant does not appear to have any difficulty in understanding and expressing himself in English, the nature of the proceedings and his belief that the complainant was "playing games with him" meant that his lack of legal representation was likely to lead to a miscarriage of justice.

89 I note also that the complainant's experience of being cross-examined by the applicant is likely to have been very distressing for her. The Evidence Act 1958 has recently been amended to prohibit a person accused of committing specified sexual offences from cross-examining the complainant.[25] It is arguable that these provisions should also cover some types of stalking complaints.

Grounds 4-7: errors in jury directions

90 The applicant also submitted that the trial judge erred in his jury directions. It is unnecessary to discuss this issue in detail, because I have already upheld the first ground of appeal. I therefore make only brief remarks on these grounds.

91 The applicant's outline of argument submitted that his Honour erred in directing the jury in relation to:

•

whether the applicant engaged in a course of conduct (ground 4);

•

the intention necessary to constitute the offence of stalking (ground 5);

•

the requirement that the jury must be unanimous as to the acts which they found the applicant engaged in with the intent necessary to constitute the offence of stalking (ground 6).

It was also said that this Honour had not sufficiently related the evidence to the offence of stalking (ground 7).

92 Under Crimes Act 1958, s 21A the offence of stalking requires proof that the accused has engaged in "a course of conduct" involving specified activities. The applicant's outline of argument submitted his Honour erred in telling the jury that--

"I do not think that it is really in issue in this case that there was a course of conduct undertaken."

93 The meaning of "course of conduct" was examined by Nettle J in Berlyn v Brouskos.[26] In that case the appellant, a 19 year old boy, had written a letter addressed to a 65 year old woman who lived nearby. It made sexual allusions about her. The appellant put the letter in her screen door very early in the morning and rang her door bell. The woman gave evidence that over the next half an hour he rang her door bell again several times and on one of those occasions he was naked. It was submitted for the appellant that even if he had rung the bell several times over the period of half an hour this did not amount to a "course of conduct" within s 21A. The appellant appealed from the decision of the Magistrate on the question of law of whether the conduct was capable of constituting the offence of stalking.

94 Nettle J held that the expression "course of conduct" meant--

"a pattern of conduct evidencing a continuity of purpose."[27]

"the conduct must be engaged in on more than one occasion, or it must be protracted."[28]

95 His Honour held that it was open to the Magistrate to find that the appellant's behaviour amounted to conduct which was either protracted, or occurred on more than one occasion, and evidenced continuity of purpose.

96 In this case it is necessary to consider his Honour's statement on whether the appellant engaged in a course of conduct in the context of his other jury directions. His Honour said that:

"I will go to [this issue] again, very briefly, because I do not really think that this is really in issue in the trial but you should know what is involved. Now a course of conduct is just that, a course of conduct. It is not an isolated act. It is not necessarily one or two isolated acts or so on. It has to be a course of conduct. The conduct has to be protracted or engaged in on more than one or two occasions. It must be a series of actions or a progression towards or through successive stages. It involves, in other words, a sense of continuity and a sense of purpose. It is to be distinguished from an isolated act and it is also to be distinguished from a number or even a series of separate acts falling short of justifying the description [of] a course of conduct.

Now I will not trouble you anymore with that aspect of it because I do not think it is really an issue in this case that there was a course of conduct undertaken but it is still a matter that you have to be satisfied of. It seems to me, but it is always a matter for you, that Mr Hoang does not dispute that he sent these letters, that he sent those cards, that he sent those gifts, that he made the phone calls that are given in evidence by [the complainant]. So it is open to you to find that he did engage in a course of conduct which meets the requirements of the legislation and which is therefore one of the elements that the Crown must establish beyond reasonable doubt."

97 In my view it would have been preferable for his Honour to avoid suggesting that there was no issue about the existence of a course of conduct. That being said, it may be noted that in his police interview the applicant admitted to all the acts said to constitute stalking but sought to justify them on the basis that the complainant was "playing games" with him. In these circumstances his Honour's comment was understandable.

98 In my view no miscarriage of justice arose from the learned judge's comment. As is apparent from the passage above, the judge directed the jury correctly on the meaning of this phrase. His Honour told the jury that it was a matter for them to decide.

Ground 5: The intention necessary for the offence

99 Counsel for the applicant submitted that the trial judge had erred by directing the jury that:

"you must consider whether you are satisfied beyond reasonable doubt in all those circumstances that he ought reasonably to have understood what he was doing."

100 Counsel for the applicant contended that his Honour erred because s 21A of the Crimes Act 1958 required the Crown to prove that Mr Hoang subjectively intended to cause the complainant harm or to make her apprehensive or fearful.

101 Counsel for the Crown submitted that the words of the section made it clear that it was unnecessary to prove that the alleged stalker had a subjective intention to cause harm, apprehension or fear. [29] It was sufficient for the Crown to prove that in the circumstances of the case the accused ought to have understood that the course of conduct in which he engaged was likely to cause these effects and that his conduct actually did so. In my opinion the Crown's submission is clearly correct.

102 Prior to its amendment in 2003,[30] section 21A(3) of the Crimes Act 1958 provided that:

"For the purposes of this section an offender also has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of any other person if that offender knows, or in all the particular circumstances ought to have understood, that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result."

103 The words "in all the particular circumstances ought to have understood" import an objective element into the specific intent required for the offence where the course of conduct did cause mental harm or arouse apprehension or fear in the victim. In these circumstances, the required state of mind is not the actual state of mind of the offender, but what "that offender" in those circumstances "ought to have understood."

104 The policy rationale for this provision is clear. It may be that many stalkers falsely believe that they have a relationship with the person they pursue, even though they may have never met or spoken to the victim. A provision which required proof of a subjective intention to cause harm to the victim would not apply to an alleged stalker who obsessively pursued the victim on the basis of a false belief that these attentions were welcome. The reference to "in all the particular circumstances" requires the jury to take account of the particular circumstances in which the course of conduct has occurred, in order to decide whether the accused "ought to have understood" the effects of the behaviour on the victim.

105 The question is not whether Mr Hoang subjectively understood that the course of conduct in which he engaged would be likely to cause harm to the complainant, or arouse her apprehension or fear, but whether in all the particular circumstances he ought to have understood the effect of his behaviour on the complainant.

106 It follows that the judge did not misdirect the jury on this issue and that this ground of appeal is not made out.

Ground 6: the requirement of unanimity

107 Counsel for the applicant contended that his Honour had erred in failing to direct the jury that they must be unanimous as to which acts they found the applicant had engaged in with the intention of stalking. She submitted that the High Court's decision in KBT v R[31] applied to the offence created by s 21A of the Crimes Act 1958.

108 In KBT the applicant was convicted of the offence of maintaining an unlawful relationship with a child under 16, under s 229B of the Criminal Code (Queensland). That section provides that a person is only guilty of the offence if the accused has done an act defined to constitute an offence of a sexual nature on three or more occasions during the period when the offence was alleged to have been committed.

109 The Crown relied on evidence of the complainant alleging sexual conduct falling into six broad categories. The trial judge instructed the jury that they must be satisfied beyond a reasonable doubt that the accused had committed the relevant acts on three separate occasions during the period charged. He did not direct the jury that they must reach a unanimous opinion as to the three occasions and the three acts each of which constituted an offence of a sexual nature. The Crown did not dispute that a direction to that effect should have been given and the High Court held that this concession was appropriate because the section required the commission of three separate acts of a sexual nature.

110 In their joint judgment Brennan CJ and Toohey, Gaudron and Gummow JJ distinguished between offences in which the actus reus was a course of conduct, for example trafficking in drugs, and the offence created by s 229B. By contrast to "course of conduct" offences, the actus reus of the offence under s 229B was the doing of a particular act, which was an offence of a sexual nature, on three separate occasions. [32]

111 Counsel for the applicant submitted that the approach taken in KBT also applied to the offence of stalking. I do not agree. As explained above, KBT drew a clear distinction between the offence created by s 229B and offences involving a "course of conduct". [33] Section 21A(2) provides that:

"A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes any of the following--

(a) following the victim or any other person;

(b) contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever;

(c) entering or loitering outside or near the victim's or any other person's place of residence or of business or any other place frequented by the victim or the other person;

(f) keeping the victim or any other person under surveillance;

(g) acting in any other way that could reasonably be expected to arouse apprehension or fear in the victim for his or her own safety or that of any other person--

with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person."[34]

112 The question for the jury in this case was whether Mr Hoang engaged in a course of conduct, including any of the matters set out in s 21A, with the intention of causing physical or mental harm to the victim. A person who engages in such course of conduct with the requisite state of mind is guilty of the offence of stalking, if the course of conduct harmed the complainant or aroused apprehension or fear in the victim for his or her own safety.

113 It follows that his Honour did not err in failing to direct the jury that they must be unanimous as to the particular acts which constituted the "course of conduct".

Ground 7: failure to relate the facts in the case to the offence

114 Counsel for the applicant referred to his Honour's comment to the jury that "there is evidence that would justify a finding that the course of conduct aroused an apprehension of fear or mental harm in the complainant". She submitted that the learned judge had erred by failing to define "mental harm" and by not relating that direction to the evidence at trial or directing the jury on what evidence there was that the applicant had suffered mental harm.

115 In my view there is no substance in the submission that the jury should have been directed on the meaning of "mental harm", which is not a legal term of art. In the course of instructing the jury on the elements of the offence his Honour said that:

"[T]he third thing that the Crown has to prove is that that course of conduct actually did cause, in this case, mental harm to [the complainant] or actually did arouse apprehension or fear in her for her own safety."

"I go now to the third of those three elements that have to be proved namely that the course of conduct did in fact cause [the complainant] mental harm or aroused apprehension or fear in her for her own safety. There is evidence that would justify a finding of that in this case. I am not saying you must or you should or anything like that, I simply say there is evidence that would justify that but bear in mind that what has to proved in order to prove this element of the offence is the causing of mental harm or the arousing of apprehension or fear for her own safety, for her own safety. It is not enough to cause her irritation, angst, annoyance, to cause her to wish that he would stop being a pest and go away. To cause her anything less than mental harm, or the arousing of apprehension or fear for her own safety is not enough to establish that element of this charge.

In his address to you, Mr Gilligan urged that [the complainant] was upset by the conduct and concerned about it. Though I am not going to say to you that if that was her state of mind it would not justify proof of this element, it is a matter for you whether her upset or concern amounted to mental harm or whether it amounted to the arousing of apprehension or fear for her own safety. That is what has to be established in order to make out this third element."

117 The jury heard the complainant's evidence on the way the applicant's behaviour affected her. The duty of a trial judge in directing a jury how to apply the law to the evidence they have heard was discussed by Eames JA in R v Zilm.[35] Eames JA said that:

"In all but the most straightforward of trials, it will be necessary for the trial judge to remind the jury, in an even-handed way, of the evidence, and to relate it to the facts and issues raised by counsel. However a judge is not required to summarise all of the evidence in a trial. As I have already discussed, the obligation of a trial judge is to relate sufficient of the evidence and sufficient of counsel's arguments to the jury as to enable the jury to determine the issues in the case and any matters which might be relevant to their determination of the counts."[36]

118 In this case Mr Hoang did not deny that he had made phone calls and sent the cards and gifts to the complainant. His Honour directed the jury on the elements of the offence and drew attention to the question of whether Mr Hoang ought to have understood that his behaviour was likely to harm the complainant or arouse apprehension or fear in her. He said that:

"You have to be satisfied beyond reasonable doubt that he, Mr Hoang, ought to have understood it and that therefore involves you making an assessment of him based on what you have seen and heard of him and from him and an assessment of his mental state at the relevant time. His way of thinking , his way of understanding and so on. You have to, in other words, take into account whether with all his flaws and faults, as he put it himself, he ought to have understood this."

119 His Honour went on to contrast the applicant's conduct with cases where the conduct complained of includes following a person home, leaving threatening notes, or pestering a person day after day. He also referred to the applicant's contention that:

"He was romancing [the complainant], he was wooing her. He may have been misguided, he may even have been deluded about what is happening and how he has read certain signs and all those things, but as he would say, his intention never was to do her harm, nor did he think that what he was doing would ever have done her mental harm."

120 His Honour's direction was favourable to the applicant, in that he placed considerable emphasis on the applicant's subjective intention, rather than on what he ought to have understood. For these reasons the seventh ground of appeal is not made out.

Ground of appeal 3: unreasonable verdict

121 Finally, it is necessary to consider the submission that there was insufficient evidence for a jury to find beyond reasonable doubt that the applicant possessed the intention necessary to constitute the offence of stalking or that the behaviour of the applicant constituted a course of conduct.

122 The submission relating to the applicant's intention appears to assume that it was necessary for the Crown to prove that the applicant subjectively intended to harm the complainant. I have already said that the section requires only that the applicant ought to have understood, in all the circumstances, that engaging in his course of conduct would be likely to harm the complainant.

123 In my view it was open to a reasonable jury, on the evidence before it, to conclude that the applicant possessed the intention required by s 21A and that his behaviour constituted a course of conduct that, although it was spread out over a period of some years, did in fact cause mental harm or apprehension and fear in the applicant.

The Application of the Proviso

124 Counsel for the Crown submitted that the nature of the case against the applicant made this an appropriate case for the application of the proviso to s 568(1) of the Crimes Act 1958.

125 Despite strong Crown evidence indicating the applicant's guilt, he did not receive a fair trial, because of his inept cross-examination, which resulted in the admission of inadmissible evidence. In Weiss v R[37] the High Court acknowledged that:

"there may be cases where it is proper to allow the appeal and order a new trial, even though the appellant court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of this kind."[38]

126 Further, in the circumstances of this case I cannot be satisfied that his Honour's failure to consider whether legal aid should be ordered for the applicant "would, or at least should, have had no significance in determining the verdict of the jury."[39]

127 For that reason I would grant the application for leave, allow the appeal and remit the matter to the County Court for retrial.

[1] The section was amended slightly by the Legal Profession (Consequential Amendments) Act 2005. That act commenced on 12 December 2005, just after the trial in this matter. That Act replaced the term "private practitioner" in section 360(2) with the phrase "private law practice or private legal practitioner". Nothing turns on this change in terminology.

[2] Crimes Act 1958, s 360A(2)(b).

[3] [1992] HCA 57; (1992) 177 CLR 292 ("Dietrich").

[4] Ibid 311 (Mason CJ and McHugh J).

[5] Ibid 315.

[6] Ibid. See also Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163, 184.

[7] Various matters were relied upon in support of ground 1, including the admission of evidence alleged to be inadmissible and the inept conduct of cross-examination by the applicant.

[8] Dietrich [1992] HCA 57; (1992) 177 CLR 292, 311.

[9] Ibid 310-311 (emphasis added) (citations omitted). See also Brennan J, 322-323, 325; Toohey J, 361, though Toohey J does note that "In the context of a serious criminal charge, an appellate court would be slow to conclude that the absence of legal representation for an accused is not likely to have led to the loss of a chance of acquittal." Deane J appears to take a different view at 335-336, 337, although he also acknowledges that that where the accused refuses to take advantage of legal representation the trial will not be unfair. Gaudron J at 375 says that "the prima facie position is that [an unrepresented accused] has "lost a chance which was fairly open to him of being acquitted".

[10] [1999] VSCA 195; [1999] 3 VR 313.

[11] [1999] VSCA 195; [1999] 3 VR 313, 317 (Brooking JA), 320 (Charles JA).

[12] Ibid 319 (Brooking JA).

[13] Ibid 329. See also R v Kerbatieh [2005] VSCA 194, [36] (Chernov and Nettle JJA); R v MK [2005] VSCA 194, [32]-[33], [36].

[14] (1991) 1 Qd R 166.

[15] McKenzie v. McKenzie [1971] P 33; [1970] 3 WLR 472.

[16] (1991) 1 Qd R 166, 174.

[17] Smith v Gannawarra Shire Council [2002] VSCA 69, 347. For similar statements in criminal proceedings, see Jago v District Court of New South Wales & Ors [1989] HCA 46; (1989) 168 CLR 23, 56, 74 and R v Burke (1991) 1 Qd R 166, 170, 174, 176, 183.

[18] Crimes Act 1958, s 21A(2).

[19] See Crimes Act 1958, s 21A(3).

[20] See Crimes Act 1958, ss 21A (2), 21A(3).

[21] [1992] HCA 57; (1992) 177 CLR 292, 302.

[22] For example, evidence of what the applicant said to the complainant in various phone conversations.

[23] [1999] VSCA 195; [1999] 3 VR 313, 327.

[24] Ibid 317 (Brooking JA).

[25] See Evidence Act 1958, s 37CA, inserted by the Crimes (Sexual Offences) Act 2006.

[26] [2002] VSC 377; (2002) 134 A Crim R 111. See also Thomas v Campbell [2003] VSC 460; (2003) 9 VR 136, 150.

[27] Ibid 117.

[28] Ibid.

[29] The Crown outline of submission apparently conceded that his Honour erred on this point, but this concession was not made at the hearing.

[30] Section 21A(3) of the Crimes Act 1958 was amended by the Crimes (Stalking) Act 2003 (No. 105/2003). The new s 23A(3) came into effect on 10 December 2003 but does not apply to this case by virtue of the Act's transitional provisions. The new s21A(3) is divided into two sub-sections. The new s 21A(3)(a) requires a subjective form of intention where no relevant harm, apprehension or fear is actually caused to the victim of the stalking. However, the new s 21A(3)(b), like the old s 21A(3), deems the offender to have the necessary intention where "the offender in all the particular circumstances ought to have understood" that the course of conduct would be likely to cause the relevant harm, apprehension or fear and it actually did have that result. The policy reason for this distinction is to (a) ensure that an offender who knew harm, fear or apprehension was likely, does not escape prosecution simply because the victim "is not easily frightened"; and (b) to "ensure that a person is not exposed to criminal liability where he or she has no subjective intention to cause harm or fear and does not actually cause harm or fear", see the Explanatory Memorandum to the Crimes (Stalking) Bill 2003, clause 4.

[31] (1997) 191 CLR 417 ("KBT").

[32] Ibid, 422.

[33] Ibid.

[34] Note the definition of intention discussed in paragraphs 99 to 103 above.

[35] [2006] VSCA 72; (2006) 14 VR 11.

[36] [2006] VSCA 72; (2006) 14 VR 11, 29 (citations omitted).

[37] [2005] HCA 81.

[38] Ibid [45].

[39] Ibid [43].