R v Kerbatieh [2005] VSCA 194 - VSCA 2005 case summary — Zoe

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R v Kerbatieh [2005] VSCA 194

[2005] VSCA 194

Court of Appeal (Vic)|2005-08-30|Before: CHERNOV and NETTLE, JJ.A and BYRNE, A.J.A.

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

2005-08-30

Before

CHERNOV and NETTLE, JJ.A and BYRNE, A.J.A.

Source

Original judgment source is linked above.

Judgment (85 paragraphs)

[1]

[2005] VSCA 194

[2]

Criminal law - Sexual offences - Trial - Adjournment - Natural justice - Adjournment sought by accused after counsel withdrew during course of trial - Whether accused denied natural justice by refusal of adjournment - Procedure - Procedural fairness - Accused unrepresented after withdrawal of counsel - Whether unrepresented accused denied procedural fairness by trial judge failing to assist accused in conduct of defence or in failing to put defence fairly and firmly to jury - Evidence - Statement of accused to complainant that accused had been in gaol for killing three men - Relevance - Whether statement admissible as showing intimidation of complainant - Complainant's out of court statement - Statement admitted to evidence at insistence of accused - Whether judge erred in receiving statement - Whether judge erred in directing jury as to use to be made of statements - Video tape of complainant's evidence in chief - Portion of tape re-played to jury at their request after retiring to consider verdict - Whether tape should have been replayed - Whether judge erred in failing to redirect jury on remainder of complainant's evidence - Similar fact evidence - Propensity evidence - Whether propensity direction adequate - Whether propensity direction must use the phrase "kind of person likely to commit the charged act" - Sentencing - Totality - Whether judge gave insufficient weight fact that all offences occurred within space of 17 days - Whether sentence crushing.

[3]

1 On 18 February 2003 the applicant, Mohammed Kerbatieh, who is now aged 35 years, pleaded not guilty to 22 of the 23 counts contained in a presentment which alleged that he committed various sexual offences against three school girls[1] (none of whom was known to him) between 24 September and 11 October 2001, namely, two counts of threatening to kill (counts 1 and 19), ten counts of rape (counts 2, 5, 6, 11, 13, 14, 16-18, 20), one count of attempted rape (count 3), two counts of common assault (counts 4 and 23), five counts of committing an indecent act with a child under 16 years of age (counts 7-9, 12 and 15), two counts of false imprisonment (counts 10 and 21) and one count of assault with intent to rape (count 22). The applicant pleaded guilty to count 23, which alleged common assault against the third complainant. After a trial lasting 20 hearing days, the applicant was convicted on 18 March 2003 of all counts to which he had pleaded not guilty other than counts 3, 5 16, 17, 18 and 20. He was acquitted on count 5 of rape but convicted of the statutory alternative of assault with intent to rape. He was acquitted of count 20 by direction. The jury could not agree on counts 16 and 18 and returned a verdict of not guilty on counts 3 and 17.

2 At the hearing of a plea in mitigation made on 24 March 2003, the applicant admitted one prior conviction (in June 1996) for causing grievous bodily harm and the Crown established two other prior convictions (committed in February 1990) for unlawful assault. His Honour also received into evidence the victim impact statements of the complainants and the report dated 11 June 2003 of psychologist, Warren Simmonds, who also gave evidence on the applicant's behalf. On 20 June 2003, his Honour sentenced the applicant to a total effective sentence of 22 years and 9 months' imprisonment and directed that he serve a minimum term of 18 years before being eligible for parole. The individual sentences, including the periods of cumulation ordered, are set out in Schedule 1 to these reasons. We will discuss his Honour's sentencing remarks more fully when we deal with the applicant's application for leave to appeal against sentence.

3 On 30 June 2003 the applicant filed notices of application for leave to appeal against conviction and sentence. On 30 May 2005 the Registrar granted the applicant leave to substitute new grounds in the conviction application. These grounds are set out in Schedule 2 to these reasons. During the hearing of the applications, Mr Carmichael for the applicant, properly, we think, did not press Ground 8. Plainly, there was no evidence before the jury on which they could have properly concluded that the applicant had an honest and reasonable belief that the first complainant was not under the age of 16 and counsel conceded that there was no error in his Honour's direction as is contended for in Ground 8(b). Before dealing with the remaining, somewhat lengthy grounds, it is necessary to set out briefly the circumstances of the offending.

Circumstances of offending

4 As we have noted, the offences were committed between 24 September 2001 and 11 October 2001, at which time the applicant was aged 31 years. In general terms, the applicant used essentially the same modus operandi in his conduct towards the three young complainants. He would approach each in the early hours of the morning, strike up a conversation which included discussions about drugs and befriend her. Once he gained her confidence, he took advantage of her youth and naivety to lure her to an isolated area, or a house, and there engage in the offending conduct.

5 More specifically, the applicant approached the first complainant ("C") when she was walking home with a girlfriend in Coburg in the early hours of 24 September 2001. He told the two girls that he was a drug dealer and offered to sell them drugs, which they refused. After further discussion, he persuaded C to walk with him to the nearby Moreland train station on the pretence that he was to drop off some drugs there. The pair were photographed by security cameras walking past the station shortly before 1.00 a.m. As they walked along, the applicant directed a number of enquiries to C relating to her personal life, her drug use and whether she was a virgin. The applicant kissed her on the mouth and told her he would make her his girlfriend. But she told him "No" and said that he was too old for her and that she had a boyfriend. At one stage the applicant told her that he was not a rapist and she would not get hurt whilst she was with him because he had a gun and would be able to protect her. Thereupon she became frightened by his conduct, but continued to walk with him because she feared what he may do if she did not comply with his wishes. After speaking on his mobile telephone, the applicant said that his meeting place was changed to a location near the former Coburg High School. He then directed her towards parklands near the former school and, when they got there, he effectively told her to sit on his jacket which he had placed on the ground. The Crown case was that soon after C sat down the applicant grabbed her neck, forced her backwards and told her that he was her worst nightmare. He said that he would kill her if she did not do what he wanted.[2] C said in her evidence that she was so frightened that she began to cry and involuntarily urinated. The applicant then took her mobile telephone and turned it off. She tried to yell, but he told her to "shut up", pulled her skivvy over her mouth and slapped her on the face. He physically prevented her from wriggling away.

6 The applicant then pulled up C's skirt and took off her underpants after she refused to do so. Because C was struggling, both items of clothing were ripped. C was wearing a sanitary napkin and this was removed at the same time as her underpants. The applicant then pulled down his jeans to his knees, sat on top of her and, notwithstanding her protestations, inserted one or more fingers into her vagina and moved them around.[3] The Crown alleged that after withdrawing his fingers from C's vagina, the applicant attempted to insert his penis into it. She said that she did not see his penis as she was keeping her eyes closed but said that she was still lying on her back when he attempted to do this. In her evidence, C initially said that she was unsure whether, at that stage, his penis penetrated her vagina and said later that she thought it did.[4]

7 At some stage during their struggle the applicant placed both hands around C's neck and applied such pressure that it restricted her breathing.[5] C also said that she was "not really sure" whether the applicant put his fingers in her vagina a second time. These circumstances formed the basis of count 5 - digital rape - of which the applicant was acquitted, but he was convicted of the alternative charge of assault with intention to rape. C said in her evidence that although she could not remember on how many occasions the applicant put his penis inside her vagina, it was at least on one occasion.[6]

8 The applicant's subsequent offending conduct, described below, formed the basis of counts 7, 8 and 9 - indecent acts with a child under the age of 16 years. The applicant knelt in front of C and instructed her to touch his testicles. After initially refusing, she complied and, as she did so, the applicant masturbated, forcing C to say: "I love you Sam. I want to have sex with you" and "I am a whore". He then told her to kiss him with her tongue and she complied out of fear. He instructed her to "go to doggy style" and, after moving around a bit, made her lie on her back again and put her leg over him. He masturbated again and whilst ejaculating required C to "look at me come".

9 The applicant then got dressed and left C in a very distressed state, threatening her if she reported the incident. She ran towards Sydney Road and eventually, with help from others, caught a taxi home. Shortly thereafter, C made a complaint against the applicant at the local police station. She was medically examined at the Royal Children's Hospital by a paediatrician, Dr Bronwyn Francis. Dr Francis said in her evidence that, on arrival, C was dishevelled and that even at that stage she was distressed, tearful, anxious and had a number of leaves in her hair and in her clothing. There appeared to be debris in her pubic hair. Dr Francis said that she also saw pink marks on C's neck that were consistent with recent application of force as if there was an attempt to strangle her. She said that there was no sign of bruising or damage to the external genitalia and that the hymen appeared to be intact. According to Dr Francis, this was not "uncommon". Dr Francis rejected the suggestion by the applicant's counsel, during cross-examination, that this made unlikely "the possibility of prior sexual contact".

10 Essentially, the applicant's case appeared to be[7] that he did not engage in the offending conduct as alleged by C. More particularly, he claimed that she had asked him for drugs and he told her that they would have to go to Coburg High School to obtain them. When they got there he tried to seduce her but she rejected his advances, and so he left. He asserted that no sexual or other impropriety occurred.

11 The second complainant ("S") was also aged 15 years at the time she was assaulted. On or about 27 September 2001, she was at a pool hall in Fawkner at approximately 1 a.m. After her friends had left, the applicant struck up a conversation with her saying that he was a drug dealer and asking her for help to complete a "deal". She said that she was not interested. She said in her evidence that during the conversation she told the applicant that she was 15 and did not use drugs. After a while, the applicant persuaded her to go outside and later asked her to accompany him to a nearby train station on the basis that he was to meet a girl there who was in trouble after arguing with her boyfriend. As they walked towards the station, the applicant told S that he was training in kickboxing, that he dealt in drugs (ecstasy and cocaine) and that he could get a driver's licence for under-age girls. After arriving at the station, they sat down and had a cigarette, but the expected girl did not turn up so they walked back towards the pool hall. En route, they walked through a hole in the fence to the back of a building and sat on a mattress that was lying there. The applicant asked S if he could kiss her but she refused. Later, he suggested to her that he would arrange for his brother to drive her home. He made a call on his mobile telephone and, not long thereafter, a car arrived with two young men in it. The applicant and S got in the car and were dropped off near the Drums Hotel, which was (unbeknown to her) near the applicant's home in Coburg. She was very cold and, although the applicant offered to walk her home, she refused. They then walked through the back streets of Coburg, S believing that they were walking towards her house. The applicant told her he would obtain a jacket and gloves for her from his friend's house. When they arrived there, C first waited outside but eventually went inside after the applicant told her that his friend would drive her home.

12 The applicant led S into a room with a bed in it at the back of the house and there made numerous telephone calls, supposedly to his friend, but apparently he could not make contact. He then swallowed what he said were two ecstasy tablets. She refused his offer of the drug and after some discussion they fell asleep. When S awoke, it was daylight and she nudged the applicant's shoulder to wake him and told him that she was leaving. The applicant appeared dishevelled and his mood had completely changed from that of the previous evening. He became aggressive and claimed that he did not know how S had come to be with him and accused her of stealing $20,000 of the $60,000 that he claimed he had stored in a suitcase. S became frightened and wanted to leave but the applicant told her to stay where she was until his friend arrived so that he could establish whether she had stolen his money. He left the room and returned with handcuffs. He slapped her across the face, handcuffed her hands behind her back and tied her feet together with black cotton strips.[8] S began to sob and the applicant again slapped her hard across the face, telling her to be quiet. She continued to cry throughout the applicant's attack on her but did so silently for fear of being hit again. The applicant next attempted to remove her belt. She tried to prevent it but the applicant slapped her on the face on two more occasions, once so strongly as to force her onto the bed. He untied her legs, removed the clothes from the lower part of her body and told her that he wanted her to feel ashamed. He then tied her legs again. He subsequently unlocked her handcuffs and removed her shirt, leaving her fully naked before placing the handcuffs back on her wrists. He then gagged her by forcing into her mouth a tie that had a cartoon character on it. He directed her to lay down on the bed and asked her whether she had ever "sucked a dick before". She indicated that she had not. He then told her that he wanted her to suck his penis. The applicant removed his tracksuit pants and underwear and told her that he found it difficult to obtain a full erection because he had used drugs. He then placed a towel around himself, removed her gag and left the room.

13 He returned with a knife and a carving fork (the fork being similar, but not identical, to the ones tendered in evidence). S was still lying on the bed. She said that the applicant then removed the towel, placed the knife to her neck and forced his erect penis into her mouth and told her to suck it. He warned her that if she tried to bite his penis he would cut her. S did as she was told for fear of what the applicant might otherwise do to her.[9]

14 The applicant then untied S's legs, forced them apart and inserted his tongue into her vagina and licked inside her vagina for approximately two minutes.[10] He next inserted the handle of the fork into her vagina for a few seconds before taking it out and then put it back again on two occasions.[11] The applicant then inserted his penis into S's vagina, telling her how tight it was. Whilst the applicant was moving backwards and forwards with his penis inside her vagina he forced her to say: "I want you to fuck me like a slut, fuck my tight vagina, oh, I love your big dick". The applicant told S that he was going to "come" inside her but said that she need not worry because he could not have children. The applicant also told her that he had ejaculated, although she was unsure whether he had.[12]

15 After some discussion, the applicant removed the handcuffs from the complainant's hands and told her to fondle his penis and testicles. He produced a bottle of Nivea cream and spread it on and around his genitals and told her to "play" with him. S rubbed his penis and testicles for between 10 and 15 minutes.[13] The applicant then told her that he wanted to "use her again". After a brief conversation he placed his penis inside her vagina and continuously moved backwards and forwards. Whilst he did so, S, at the applicant's direction and out of fear, repeated the words she had previously used. This offending conduct lasted approximately four minutes and continued notwithstanding that S pleaded with the applicant to stop.[14]

16 S said in her evidence that she was not sure whether the applicant then put his penis in her mouth again after the incident involving the Nivea cream, but she said later that he had hold of her hair and forced his penis into her mouth, moving it backwards and forwards.[15]

17 A little later the applicant told S that he wanted "to be with her" again. She told him that it was painful and the applicant said that they would try and if it was painful they would not proceed. The applicant then inserted his penis into her vagina for about four minutes but S kept complaining that it was painful so the applicant withdrew his penis.[16]

18 The applicant then told her that he did not know if he could trust her and wondered whether he should just kill her and said that if he did no one would ever find her body.[17] He then left the room and returned with a bowl of water and a towel and proceeded to clean her. They then got dressed and, at the applicant's insistence, walked out into the street. The applicant threatened her and warned her a number of times not to go to the police. He told her that he had just been released from gaol for killing three men. Eventually, a friend of the applicant picked them up in his car in Moreland Road and S was later dropped off near her home. When she arrived there no one was home so she went to her friends' house and told them that she had been raped and showed them the marks on her wrists. She later told other friends the same thing. She said that she was too frightened to complain to the police immediately, but later made two statements to the police, one on 26 November and the other on 18 December 2001.

19 The applicant in his record of interview and during the conduct of his defence claimed that S told him that she was 19 years of age and that the only relevant act that occurred between them was consensual sexual intercourse.

20 The third complainant ("E") was also a school student in October 2001. She was aged 16 and worked part-time in a shop called "Unleaded Jeans". At about 7.45a.m. on 11 October 2001 she was walking to a tram stop in Sydney Road to catch a tram to school. She was wearing her school uniform and carrying her school bag. The applicant approached her and struck up a conversation by asking her where Hawthorn Street was, which was the street in which S lived. During their conversation the applicant's mobile telephone rang and he appeared to have a conversation saying, "How am I meant to pick up $15,000 with my hands?" E told the applicant that he looked familiar. He then told her that he "boxed" with a man by the name of Pierre Kerran and that she might know him. She said that she knew Pierre Kerran through her brother. After she described her brother to the applicant, he told her, falsely, that he knew him. While they were talking, the applicant's mobile telephone rang again and, after that conversation, he told E that his sister could pick up the $15,000 for him, but if she helped him do so he would pay her $200. E declined the offer but said she would walk with him in order to direct him to his destination, as it was not far out of her way. She said that she agreed to walk with the applicant mainly because she trusted him because she thought he knew her brother. They walked together along a number of streets towards Bell Street, Coburg and then he directed her down a laneway to the back fence of a house. This house was the premises in which the offences alleged by S took place and, unbeknownst to E, was the house in which the applicant lived. He asked her to come inside with him, but she refused and stayed outside while he went in. Shortly after that, he returned with a stick and at that point E began to feel apprehensive. Suddenly, he grabbed her right arm and pulled her through the opening in the fence and then pushed and pulled her inside the house notwithstanding that she kept saying that she wanted to leave and go to school. In her evidence E said that the applicant's actions and the presence of the stick frightened her.[18]

21 The applicant eventually pulled E into the back part of the house and told her to wait in a room that had an unmade bed in it. When E attempted to leave the applicant placed one hand over her mouth and a struggle ensued. She was so frightened that she involuntarily urinated but eventually managed to free herself from the applicant and ran outside the house.[19] E then ran towards Bell Street in a distressed state, dropping her bag on the way. She complained to a woman in Bell Street that somebody tried to rape her and the woman escorted E to the local police station where she made a complaint. Not long thereafter she was medically examined in the course of which a number of recent injuries to her head, neck and upper limbs were identified that were consistent with her complaints.

22 The applicant asserted that E had let herself in through the unlocked front door of his house and asked him for money. He claimed that he then pushed her in the face and ejected her from his home, conceding that this act amounted to common assault, hence his plea of guilty to count 23.

23 As a result of E's complaints, the police executed a search warrant at the applicant's premises. They took a number of photographs of the inside of the premises and seized a number of items including a "Bugs Bunny" tie, a pair of "Unleaded" jeans, a bottle of Nivea cream and a bag of black cotton strips. These were items which matched the description of items said to have been used in the course of the assaults upon S. The police also seized a piece of damp carpet from the doorway of the applicant's bedroom. The carpet was subsequently forensically examined, but no urine was detected.[20] In his record of interview, and at his trial, the applicant essentially admitted that he had been with the complainants at the relevant times so that identity was not an issue at the hearing.

Appeal against conviction

24 There are eight grounds contained in the proposed Notice of Appeal that relate to conviction. In broad terms, the applicant's principal argument in support of his proposed conviction appeal was that he was denied a fair trial and, therefore, the impugned verdicts must be set aside. Essentially, Mr Carmichael on his behalf put forward two reasons why he claimed it was so. First, counsel said, his Honour's discretion miscarried because he refused to discharge the jury without verdict or adjourn the trial when, on the sixth day of the hearing, the applicant's counsel withdrew from the case in circumstances that we describe later. Secondly, it was claimed that his Honour failed to take the necessary steps to ensure that the remainder of the trial was conducted fairly to the then unrepresented applicant, more particularly, it was said that his Honour did not assist him, as he should have, in relation to a number of evidentiary and legal issues that arose during the trial, to which reference is made below. Many of these issues were also relied on as amounting to errors in the conduct of the trial. In order to give context to these complaints, it is necessary first to examine briefly the circumstances in which the applicant came to conduct his own trial and the progress of it.

Counsel's withdrawal from case

25 Different counsel represented that applicant at the committal proceeding and at the preliminary hearings in the County Court and at his trial. Each was briefed by Victoria Legal Aid ("VLA"). On the morning of the fifth day of the trial, 21 February 2003 (a Friday) and after the first complainant had been cross-examined, counsel told his Honour that the applicant wished to make a number of complaints to the court and that he would seek to do so later. The trial then proceeded and shortly before the luncheon adjournment the applicant told his Honour, in the absence of the jury, that he considered his lawyers - both counsel and VLA - were not following his instructions "as clearly as I wanted them to do". He then gave some examples of his complaint and essentially requested his Honour to direct counsel to conduct the case according to his wishes. Unsurprisingly, the learned trial judge told the applicant that he would not direct counsel how to conduct the case. His Honour explained that counsel was obliged to conduct the defence in a professional and proper manner and noted that there was "nothing from my observation to suggest that there is anything unprofessional or improper or inadequate about the way in which the case has been conducted on your behalf". Shortly after the luncheon adjournment, the applicant's counsel sought an adjournment of the trial until 25 February 2003 (a Tuesday) to enable him to obtain a ruling of the Ethics Committee of the Victorian Bar as to his obligations as counsel in relation to the trial. In the course of making that application, counsel made it clear that it was highly improbable that he would continue in the case and that the adjournment was really required to arrange for another counsel to be briefed and for him or her to become acquainted with the proceeding. In granting the application his Honour emphasised to the applicant that the trial would proceed on the adjourned date either with present counsel, new counsel or without counsel and that it was for him, the applicant, to determine which of these courses would be followed.

26 On 25 February 2003 (the sixth day of the hearing), a fourth barrister, who had been briefed by VLA, announced his appearance for the applicant. He told his Honour, however, that he was unable to obtain instructions from the applicant. The solicitor from VLA told the judge that if counsel could not obtain instructions from the applicant, VLA would not fund his representation at the trial. His Honour then told the applicant that if he did not give his new counsel sufficient instructions to enable him to represent him, counsel would have to withdraw and that the trial would proceed with the applicant unrepresented. His Honour explained that it was in his interests that he be represented and stood the matter down to give new counsel another opportunity to obtain instructions. After a short time, however, counsel told his Honour that he was still unable to secure instructions from the applicant and, accordingly, he proposed to withdraw from the proceeding. His Honour again told the applicant that it would be in his interests to be represented and that if he did not give instructions to his counsel the trial would continue with the applicant unrepresented. The applicant remained adamant that he did not wish to be represented by VLA or by counsel briefed by it, asserting, essentially, that VLA had lied to him and had a "preconceived opinion ... that a conviction was inevitable". He asked that "the trial either be aborted or stood down in order for me to make my concerns known and to seek a ruling from his Honour Judge Harbour Phillips the Chief Justice of the Victorian - and the Victorian Bar Association."

27 His Honour refused the application and, accordingly, the trial continued for a further ten days with the applicant unrepresented. During this period the applicant cross-examined Crown witnesses, including the second and third complainants but did not adduce any evidence or give any himself. In his helpful report to this Court, the learned trial judge said that the applicant cross-examined the witnesses sensibly but ineffectively and that his considered decision not to give evidence was "forensically correct". On 7 March 2003 (a Friday) the Crown delivered its closing address to the jury and the matter was adjourned to 11 March 2003 (a Tuesday) in order to enable the applicant to prepare his closing address, which he made on that day. The learned trial judge then charged the jury and, as noted previously, the jury returned their verdicts on 18 March 2003.

28 After the verdicts were taken, the applicant told his Honour that he wanted to proceed with the plea in mitigation, unrepresented. His Honour, however, adjourned the matter to 24 March 2003. On that day, as we have noted, the applicant admitted one prior conviction for causing grievous bodily harm and the prosecutor tendered certificates relating to the applicant's two convictions for unlawful assault and the three complainants' impact statements. The applicant then told his Honour that he wanted to be legally represented. The learned judge said that, in any event, he would seek a psychiatric report relating to the applicant pursuant to s.96 of the Sentencing Act 1991 and adjourned the matter to a date to be fixed. On 16 June 2003, his Honour proceeded to hear a plea in mitigation on behalf of the applicant who was then represented by a fifth member of counsel. As has been mentioned, his Honour had before him the report dated 11 June 2003 of Mr Simmons, a psychologist, who also gave evidence as to the applicant's circumstances, his history of drug use and prospects of rehabilitation. On 20 June 2003, his Honour imposed the sentences set out in Schedule 1 to these reasons. His Honour's sentencing considerations and the applicant's challenge to the sentence will be examined later, when we come to deal with his sentence application. We now turn to consider the applicant's submissions in support of the grounds relating to his conviction.

Ground 1

29 The applicant's principal case under cover of ground 1 can be conveniently divided into four groups:

[5]

As we explain later, some of these complaints overlap with other grounds and it will be more convenient to consider many of them together. It is appropriate to start with the applicant's attack on his Honour's decision on 25 February to continue the trial.

Ground 1 (a) - Adjournment Refusal

30 The applicant asserted under cover of ground 1(a) that his Honour's discretion miscarried because he impermissibly pressed on with the trial on 25 February. Although at the outset of the hearing before us the applicant's counsel claimed that his Honour should have discharged the jury without verdict or, at the very least, adjourned the trial, his ultimate submission on that issue was that his Honour should have adjourned the trial to the following day and that failure to do so constituted an error on his part. Counsel accepted that his Honour had a very wide discretion whether to grant an adjournment but submitted, as we have noted, that his discretion in that regard miscarried.

31 Before dealing with the applicant's argument in support of that submission, it is convenient to dispose of what turned out to be, in essence, a side issue, namely, the misconceived claim by the applicant's counsel that, by failing to take the required steps to ensure that the applicant's trial was not unfair, his Honour failed "to accord the [applicant] natural justice." As we understand it, this claim was sought to be based on this Court's decision in R v. Wise.[21] But it is plain that in Wise the Court did not lay down the principle for which the applicant contends. That case was concerned, not with a jury trial, but with whether the re-sentencing judge afforded the offender a fair hearing when re-sentencing him. The offender had been sentenced to a community-based order after he pleaded guilty to attempted armed robbery. He breached that order and, therefore, came to be re-sentenced. Counsel for the offender informed the re-sentencing judge that he knew nothing of the original offences except what he was told by his client. In arriving at his sentencing disposition, however, his Honour took into account, adversely to the offender, at least some of the sentencing remarks of the original sentencing judge that were available to him but not to counsel. The offender successfully appealed against the new sentence on the basis, inter alia, that he was denied natural justice.

32 As Ormiston, J.A.[22] explained in Wise, the sentencing judge's use of material adverse to the applicant that was obtained from a source which his Honour knew was unavailable to the offender's counsel amounted, in the circumstances, to a failure to accord him a fair hearing. As we have noted, that is not the complaint here. There is no suggestion, for example, that the jury had material that was denied to the applicant or that there was some procedural irregularity amounting to breach of the audi alteram partem rule. Rather, the essence of the complaint must be that, because of the claimed deficiencies in the conduct of the trial, there was a miscarriage of justice, and we have assumed that this is what was pressed on the applicant's behalf. Were it otherwise, even assuming that the applicant established breach of procedural fairness, by itself, that would not lead to the quashing of the conviction. In order to achieve that result, the applicant must also demonstrate that there has been a miscarriage of justice; a breach of procedural fairness does not necessarily amount to an unfair trial or a miscarriage of justice.

33 It is accepted that the principles of natural justice operate in the context of a criminal trial. For example, in Dietrich v. The Queen[23], Gaudron, J. said[24] that the source of the right to a fair trial lies in Chapter III of the Commonwealth Constitution and its "implicit requirement that judicial power be exercised in accordance with the judicial process".[25] A "judicial process" presupposes that rules of natural justice apply. But the authorities also establish that a conviction will only be set aside if it is shown that the trial miscarried and resulted in a miscarriage of justice.[26] As Fullagar, J. explained in Mraz v. The Queen[27], a miscarriage of justice occurs where an accused person has lost a chance that was fairly open to him or her of being acquitted by reason of a failure to apply the rules of evidence and procedure and the relevant law. Thus, the question whether the requirement that the accused be accorded procedural fairness has been breached in the conduct of a criminal trial is subsumed in the question whether the breach has resulted in a miscarriage of justice. If it has, the conviction will be set aside.

34 An example of a case where failure to accord procedural fairness amounted to a miscarriage of justice is Regina v. Mewett[28]. On appeal from a conviction for rape, the appellant argued that the trial had miscarried because the prosecutor had made impermissible comments in his address and the trial judge failed to correct them. Newman, J.[29] essentially agreed, saying that "there were a series of events during the course of trial which in my view are indicative that in fact procedural fairness was breached." His Honour concluded that "there was a significant breach of the principle that an accused person must be afforded procedural fairness. Accordingly it is my view that a significant miscarriage of justice has occurred and that this appeal should be allowed and a new trial granted." [30] (Our emphasis).

35 We come back to the questions of whether his Honour relevantly erred in ordering, on 25 February 2003, that the trial continue rather than adjourning it until the following day and, if so, whether that error resulted in a miscarriage of justice. The applicant's counsel submitted that in a case such as the present, the decision whether to grant an adjournment is to be made by reference to whether the trial is likely to be unfair if the accused is forced to proceed unrepresented. In support of that submission, counsel relied on what Mason, C.J. and McHugh, J. said in Dietrich[31], namely:

[7]

Counsel also referred to the observations made by Kaye, J. in McColl v. Lehmann[32] to the effect that a refusal to grant an adjournment might prevent the applicant from presenting his or her case and, in some cases, such a result could constitute injustice.

36 Contrary to the thrust of counsel's submissions, Dietrich does not stand for the proposition that the trial is relevantly "unfair" merely because the accused was forced by circumstances to conduct his or her own defence. It is also clear that McColl did not lay down such a proposition. As Brooking, J.A. pointed out in R v. Rich[33], the conclusion of the majority in Dietrich "rested upon the nature and exigencies of a criminal trial." In any event, the circumstances in this case were materially different from those in Dietrich. The applicant here was not in the position of an indigent offender who sought a stay of his trial because he wanted legal representation but had been unable to obtain it. Nor did he ask for an adjournment in order to obtain representation. And even if he had, it is highly improbable that he could have secured it. He had refused the representation offered by VLA and there was no suggestion by the applicant's counsel before us that he could have afforded to pay for other representation. Moreover, given the applicant's attitude to his legal advisers, to which reference has already been made,[34] it is most unlikely that any counsel would have been prepared to represent him. Thus, the situation was reached where, given the applicant's intransigent attitude to legal representatives offered by VLA, it would have been impossible to continue with the trial otherwise than with his being unrepresented. As we have noted, it was not suggested by the applicant's counsel that the trial should have been stayed until the applicant in fact obtained representation. That would probably have meant that the trial would have been forever stayed and this would clearly have been an unacceptable outcome.[35]

37 Undoubtedly, it is in the best interests of the accused and the administration of justice that he or she be represented at the trial. As was pointed out by Barwick, C.J. in McInnis v. The Queen[36], a trial judge ought to consider very seriously whether an accused should be forced on without counsel in any case in which there is a reasonable possibility that he may obtain the services of counsel in his defence "without unbearable delay". The Chief Justice went on to say that, in exercising his or her discretion as to whether to grant an adjournment, the judge must weigh most carefully all interests of the accused, the Crown, witnesses, jurors and (generally) the administration of justice.

38 In this case the judge did just that. He recognised that it would be in the interests of the applicant (and the administration of justice) that he be represented by counsel and that he must not be exposed to an unfair trial. His Honour gave strong advice to the applicant to retain counsel offered by VLA and thus be represented at the trial. When that advice was rejected, his Honour had to consider, and did, not only the interests of the applicant but also of the administration of justice, the Crown, the complainants and the other witnesses and the jurors. The learned trial judge effectively put the applicant on notice on 21 February that if he persisted with his attitude to his legal advisors, the trial would proceed on Tuesday, even if he were unrepresented. Thus, the applicant was given considerable notice to be prepared to conduct his own case. Furthermore, it is apparent that the applicant had given a great deal of consideration to his case, that he knew what was alleged against him, and in particular, knew significant detail of the proposed evidence of the two complainants who had not yet been cross-examined, and that he had strong views as to how his defence should be conducted. He was certainly not disorganised like the accused in McInnis, whose defence was so haphazard as to lack cogency, thereby making it likely that through absence of representation - which he sought - he may have lost a fair chance of acquittal.

39 Mr Carmichael nevertheless argued that the applicant was not ready to conduct his own case when forced to proceed unrepresented on the afternoon of 25 February 2003. It was also said that, in any event, his Honour failed to "advert directly" to whether the applicant was then in a position to conduct his own defence. But counsel could only point to two matters in support of these contentions.

• First, he highlighted that it was not until the tenth day of the trial that the applicant received what he said was relevant material from his counsel's brief, more particularly copies of exhibit 5, which consisted of a bundle of coloured photographs of the inside of the applicant's premises, and sundry items that were taken by the police when they executed the search warrant, to which reference has been made earlier, including photographs of a barbecue fork and knife. It also included depositions and statements that had been annotated by the applicant. Thus, said counsel, absent that material, the applicant was plainly unprepared to proceed on 25 February.

• Secondly, counsel relied on the applicant's lack of detailed cross-examination of witnesses on the Tuesday afternoon as demonstrating his unpreparedness to conduct his own defence. It was said that the applicant's conduct of his case on that afternoon was to be contrasted with his longer and more robust cross-examination of witnesses and general conduct of his case during the rest of the trial, when, it was said, he had sufficiently prepared himself in order to proceed with it.

40 The first point is not persuasive. The coloured photographs that were held by the applicant's former counsel were of no apparent relevance for the purposes of the applicant's cross-examination during the four days in question. Nor was it suggested that the absence of exhibit 5 could have materially inhibited the applicant's conduct of his defence in a way that could not have been rectified subsequently by the recall of witnesses. Mr Carmichael could not point to any specific item of that evidence the absence of which might have prejudiced the conduct of the applicant's case. Moreover, no complaint was made by the applicant to his Honour, at the time of the adjournment application, that such material was not available to him and that its absence prejudiced his conduct or proposed conduct of his defence. In any event, the applicant had available to him at all times black and white photocopies of the exhibited photographs as well as copies of the depositions and statements, albeit in an unannotated form. Given too that he had noted his thoughts on those documents, and, in light of his apparent familiarity with the direction he wanted his case to take, we do not accept that the absence of that material for the four days of the trial could have caused him relevant prejudice. We are confirmed in that view by the fact that the applicant did not see any need to recall witnesses who had completed their evidence during the four day period for further cross-examination based on the material that was returned to him. Finally, not only was no adjournment sought by him when he received this material (so as to enable him to become acquainted with the material in order better to prepare himself for his defence) but when the documents were given to him he effectively insisted on pressing on with his case, seemingly convinced that he had made headway with his cross-examination. We note for completeness that it is clear that his Honour assumed that, when counsel ceased to act, all relevant material was, then and there, returned to the applicant.

41 The second matter on which counsel relied as demonstrating the applicant's unpreparedness is equally without merit. The transcript makes it plain that the applicant's behaviour during the afternoon of that day was petulant and calculated to demonstrate his annoyance with his Honour's decision to refuse his application for adjournment. Just as revealing, the applicant did not later seek to have any of the witnesses who completed their evidence on the Tuesday afternoon recalled for further cross-examination on the basis that he was unprepared on 25 February.

42 In summary, the circumstances to which we have referred, such as the applicant's knowledge of his own case, his obvious attention to its progress, the period of almost four days notice that he had to prepare his defence in the event that he continued with his attitude to his legal advisers, and his conduct at the trial while conducting his own defence, all deny the validity of his claim that he was not prepared to conduct his defence on 25 February. Given the circumstances that we have briefly described, the applicant's claim that his Honour did not even "avert" to that issue must be rejected.

43 Counsel also argued that his Honour's exercise of discretion to proceed with the trial was vitiated because:

[9]

44 We think that the first point is without merit. It is plain that this experienced judge appreciated and took into account that the complainants' difficult position in giving evidence would have been magnified many times by reason of the fact that they would be cross-examined by the applicant. The applicant was, however, entitled to represent himself, if that was his choice, and he made it plain it was. In any event, this is not a ground that the applicant can rely upon. If the trial were adjourned to a later date with the applicant still unrepresented the problem would still exist. It is unrelated to the adjournment application that is presently under consideration.

45 In relation to the second matter, Mr Carmichael contended that his Honour's conclusion was uninformed and, therefore, speculative. Consequently, it was said, his Honour had taken into account an irrelevant matter and, therefore, his exercise of discretion was vitiated. This claim is also misconceived. His Honour's decision to refuse the adjournment was not based on any view as to whether the applicant was justified in his attitude towards his legal advisers. Rather, as we have already noted, the learned trial judge exercised his discretion having regard to the circumstances with which he was presented. His Honour did not say that there was no foundation for the applicant's loss of confidence in his legal advisers. What his Honour said was this. First, after the applicant complained, on 21 February 2005, about his counsel, the learned judge said that, from his observations, there was nothing to suggest that there was "anything unprofessional or improper or inadequate about the way in which the case has been conducted on [the applicant's] behalf." Secondly, on 25 February, after the applicant was abusive of VLA, alleging that they were "creeps" and sought "to stitch [him] up" and that VLA was "violating [his] human rights", the learned trial judge said, obviously with justification, that "there was no foundation whatsoever for these criticisms [or] complaints."

46 In the circumstances, we considered that his Honour made no relevant error in determining to proceed with the trial on 25 February 2003.

Ground 1(b) - Failure to consider adjournment on tenth hearing day

47 Under cover of ground 1(b) it was contended that, when it became apparent on the tenth day of the hearing that the applicant had not received back all material from his former counsel on 25 February, his Honour failed to determine whether, in the interests of justice, the trial should be aborted or adjourned. In our view this complaint also has no merit. As has been mentioned, his Honour had assumed that the documents and the photographs were given to the applicant when counsel returned his brief. When his Honour found that was not the situation, he was critical of VLA and stood the matter down for a short time to facilitate the rectification of the resultant problem. But as we have noted, counsel has not identified any specific part of the material the lack of which might have prejudiced the applicant's conduct of his defence, nor did the applicant make such a claim to his Honour, before or after the receipt of the material.

48 Contrary to the assertion in ground 1(b), his Honour heard the applicant as to what course should be taken and determined to proceed with the trial. We consider that this did not give rise to a miscarriage of justice. Given the circumstances to which we refer briefly below, it borders on nonsense to suggest, as the applicant effectively did, that his Honour did not consider whether the failure of counsel to give the applicant the material in question rendered the trial unfair to him so as to warrant it being stayed or adjourned.

49 The circumstances that we highlight are these. Shortly after the matter was brought to the court's attention, his Honour expressed his concern for the situation in very strong terms saying, at one stage, that the failure to let the applicant have the material in a timely manner caused "the whole integrity of the trial to come into question at this stage. This is a major, major problem." A little later his Honour directed that the material "must be delivered to [the applicant] forthwith." His Honour also expressed the concern that it was "not difficult to imagine that there could have been stages which would have been unfair to the accused, with him not having access to the photographs." The learned judge said that he would determine for himself what possible impact the absence of the material could have had on the trial. It was after some discussion with the prosecutor about these events that his Honour told the applicant that he was concerned about the implication of this event for the trial and asked him what he wanted to say about it. Evidently the applicant well knew that he was entitled to seek to have the jury discharged without verdict or to seek an adjournment. He said that he appreciated that he was entitled to the documentation in question. But the applicant rejected his Honour's suggestion that his cross examination of Mr Caldow be adjourned until the following day to enable him to consider his position and the course he might want to adopt in light of his having just received the photographs. He told his Honour that he wanted to proceed "because I think I've got the jury won ... so far" and "Let me keep cross-examining the detective, your Honour, please". The applicant then continued his cross-examination of Mr Caldow for the balance of that afternoon and for a significant part of the following day, and the cross-examination had very little to do with the photographs that had been tendered.

50 In the circumstances, as we have said, ground 1(b) must be rejected.

Grounds 1(c)-(e); 1(f) and (g) - his Honour's failure to assist and other errors

51 The applicant claimed under grounds 1(c) to (e) that, in breach of his Honour's duty to conduct a trial that was not unfair to him, the learned trial judge failed to assist him in a number of respects in relation to procedural, evidentiary and other matters that arose during the course of the trial. As will be apparent from Schedule 2, the allegations in those grounds are made in general terms. They do, however, overlap with grounds 2, 3 and 6 and, therefore, it is more appropriate to consider them in the context of our analysis of those grounds. The same applies to grounds 1(f) and (g) - they are more conveniently dealt with in the context of grounds 6 and 7 respectively.

52 It is appropriate to mention briefly at this point the obligation of the judge to ensure that the trial is not unfair to the (unrepresented) accused. It is a duty that has been described as "onerous" [37] and it is plain enough that it stems from the accused's right not to be tried unfairly.[38] Not surprisingly, however, when the courts have identified the scope of that duty, they have done so only in general terms. Thus, for example, in MacPherson v. The Queen, Gibbs, C.J. and Wilson, J. said[39]:

[11]

And in R. v. White and Piggin[40] it was said[41] that the trial judge should "ensure that the accused is fully aware of the legal position in relation to the substantive and procedural aspects of the case without effectively advising him or her of what course should be followed, or unduly interfering with the Crown's case as if the judge were the accused's counsel". It was also recognised in that case[42] that, in order to ensure that there is no miscarriage of justice in a trial involving an unrepresented accused, the trial judge has "considerable discretion not to apply strictly the procedural and evidentiary rules that would otherwise operate notwithstanding that strict adherence to such rules may be required by the Crown." Thus, in the absence of specific rules governing what a judge must do to ensure a fair trial according to law, "elements of reason and common sense must play a role in determining the steps that should be taken in a particular case to prevent the possibility that the trial will be unfair".[43]

53 But a trial judge must not assume the role of counsel and instruct the accused how to conduct a defence. As Brennan, J. said in MacPherson[44], in defining the limits of a judge's duty to an unrepresented accused, a distinction must be drawn between "telling the players how to play and telling them the rules of the game." Excessive intervention by a judge in a trial on behalf of an accused can amount to an error of law.[45]

Ground 2 - applicant's claim that he killed three men

54 It will be recalled that, in her evidence, S said that, after she and the applicant had left his house and in the course of threatening her not to report his conduct to the police, the applicant told her that he had just been released from gaol for killing three men. It is clear from the transcript that the applicant anticipated this evidence, which is not surprising given that its essential aspects are contained in S's statements to the police (which the applicant had) and was part of her evidence at the committal proceedings. Immediately after the prosecutor led it, the applicant objected to it and, after the jury and the witness left the court, contended that it was led to show that he had been in gaol and, on that basis, sought an order that the jury be discharged. He said that he had been sentenced to a four year term of imprisonment for "G.B.H." (presumably causing grievous bodily harm) but it was not for "killing anyone". His Honour concluded that there was no basis for discharging the jury. He ruled that evidence of the conversation was led because it was part of the material used to show that the applicant sought to "intimidate the witness which is extremely relevant to a charge of this character". His Honour accepted that it was not contended by the Crown that what the applicant said to S was true, only that he said it to her at the time. His Honour went on to say: "I expect that the Crown will contend that this is not accurate, only it is what [the applicant] said as part of an attempt at intimidation". Upon the resumption of the hearing, S effectively repeated the impugned evidence and said that she believed what the applicant said in that regard. The matter was mentioned again shortly thereafter by the prosecutor.

55 Mr Carmichael made a number of complaints about the admission and use of this statement which amounted to two contentions. First, it was said, under cover of ground 1, that, in breach of the duty to conduct a trial that was not unfair to the applicant, his Honour failed to assist him in the conduct of his defence in respect of this item of evidence. Secondly, under cover of ground 2, it was claimed that his Honour erred in a number of respects in relation to the admission and use of this evidence. The applicant argued that the evidence was inadmissible and even if it was admissible, his Honour failed to consider whether it ought to have been excluded in the exercise of discretion. It was then asserted that his Honour wrongly failed to tell the jury of the limited purpose for which that evidence was introduced.

56 As to the first contention, it was not made clear to us by counsel how his Honour was supposed to have assisted the applicant once the evidence was admitted. Having examined the matter ourselves, we can see no basis for contending that his Honour could or should have helped the applicant in relation to that evidence and that, by not doing so, breached his obligation to ensure that the trial was not unfair. It is also plain enough, we think, that the evidence was admissible for the limited purpose identified by his Honour in his ruling and, as Mr McArdle for the respondent submitted, it was implicit in his Honour's ruling that he gave consideration to whether he should exercise the discretion to reject it on the basis that its prejudicial impact materially outweighed its probative force. But, even if it was unclear whether his Honour considered this question, we are of the view that the evidence was materially probative and could not be characterised as being insignificant. Accordingly, it was appropriate to admit it. We also note that, neither during the preliminary hearings in the County Court, nor later, did the applicant's counsel seek to have that evidence excluded on a discretionary basis, or at all.

57 As to the second contention, the evidence, on its face, was an admission by the applicant that he was a murderer thrice over. We do not disagree, therefore, with the proposition that one may have expected his Honour to tell the jury, immediately or shortly after the impugned evidence was given, or at least in his charge, of the limited purpose for which it was admitted and, moreover, that the Crown was not alleging that the applicant had killed three men. But given the circumstances of this case, no miscarriage of justice occurred merely because his Honour did not give the jury a direction in exactly those terms. We consider that there is no real risk that the jury might have regarded the applicant as a murderer on the basis of this evidence.

58 It can be assumed that the jury would have applied their common sense and experience in considering whether the applicant's apparent admission to the second complainant was truthful. As the High Court said in Doney v. The Queen[46]:

[13]

The jury had every reason to treat this statement as yet another example of the applicant telling the complainants things that, as a matter of common sense and experience, were patently untrue, in order to present himself to them as a "big shot" with underworld tendencies, and thereby impress or frighten the young girls. Thus, the jury would surely have placed this statement into the same category of untrue claims as others that the applicant made to the complainants: to C that he had a gun (which was never shown to her and no firearm was found on his premises by the police), that he had killed two policemen and that he could obtain a driver's licence for underage girls; to S that he had $60,000 in cash in a suitcase; and to E that he had concluded a significant drug deal and was to collect $15,000 in cash as a result. Put another way, we do not doubt that the jury would have regarded his claim to S that he killed three men as another example of his resort to fiction, this time in order to put into the mind of the second complainant that he was the kind of person who might kill her if she complained about him to the police.

59 We are fortified in this conclusion by the strong likelihood that his Honour, who had considerable experience in conducting similar trials, was of a like view and for that reason thought it best to mention the matter only in general terms.

60 When his Honour came to summarise in his charge the evidence of S as to what occurred when she and the applicant left his house, he did so in general terms and essentially told the jury that they would remember the gist of her evidence in that regard. We note that, by contrast, the judge gave the jury a detailed direction as to how they should treat the applicant's statements during the trial to the effect that he had been in gaol for offences of violence, albeit not for sexual offences. In his charge, his Honour reminded the jury that, quite apart from the applicant's alleged conduct towards the complainants, he had made frequent references during the trial to the fact that he has been in a lot of trouble with the law, that he has been imprisoned, although not for sexual offences, and that these matters might cause them to disapprove of him. The learned judge went on effectively to emphasise to the jury that the applicant should not be convicted on that basis. He was to be convicted only if they were satisfied that the offences in question had been made out by the Crown.

61 We add that his Honour was well placed to gauge the atmosphere of the trial and best placed to determine the appropriate way in which to deal with the matter, and we also note that the prosecutor, who was attentive to the applicant's right to a proper trial, did not, in his final address to the jury, mention the impugned evidence of the second complainant or, importantly, submit to his Honour by way of an exception, or otherwise, that a direction should have been given to the jury as to the limited scope of that evidence.

62 The situation here is very different to that in R. v. Brygel[47] where the policeman, who was cross examined by the unrepresented accused, agreed that the accused had been charged on three separate occasions, in respect of other persons, with an offence of the very kind that was the subject of the trial. This was true, but the applicant had been acquitted of those charges. The fact of his acquittal, however, did not come to light during the cross examination and the judge did not tell the jury of it. This Court concluded that, in the circumstances, there was a real risk that the jury might have believed that the applicant had been found guilty of conduct of the precise kind with which they were concerned and that this may have had an impact on their deliberations. In light of that the conviction was quashed. Contrastingly, in this case there was no real likelihood that the jury would have regarded the applicant as having been convicted of three murders.

63 We mention for completeness that, while the jury might have believed the applicant's statements that he spent time in gaol for violent offences, it is unrealistic to suppose that they would have regarded these statements as encompassing murder. They were obviously made in a context quite different from that in which the applicant told the second complainant of his having murdered three men. They were made essentially for the purpose of letting Mr Caldow know that he, the applicant, was aware of what goes on when a complainant is medically examined for forensic purposes and as a preface to his questioning of the witness as to what Dr Francis told him about her medical examination of the second complainant.

64 In the circumstances, we conclude that there is nothing in the complaint in grounds 1 or 2 that his Honour wrongly failed to assist the applicant in the conduct of his defence.

Grounds 3, 1(f) - his Honour's alleged errors re statements of S

65 It will be recalled that S made two statements to the police, respectively on 26 November and 18 December 2001. Under cover of ground 3 it was alleged that his Honour erred:

[18]

(a) Wrongly admitted statements

66 The circumstances surrounding the admission into evidence of the two statements was as follows. On 27 February 2003 - the eighth day of the trial - the jury told his Honour that they wished to obtain a copy of S's statement to the police made on "28 September 2001", which was probably a reference to the second statement. By this stage, certain passages from that statement had been read by the applicant to S during her cross examination apparently for the purpose of endeavouring to establish that there were in consistencies between some parts of that statement and the earlier one. It may be inferred that the jury's request was motivated by a desire to re-read such passages and place them in context of the whole of S's statement. In the first instance, his Honour properly told the jury that they were not entitled to have the statement because it did not form part of the evidence before them. The applicant, however, told his Honour, in front of the jury, that he would like them to have the statement that they had requested. After a short adjournment and, in the absence of the jury, the Crown prosecutor told his Honour that he was of the firm view that it was not in the applicant's interest to admit the statement into evidence. His Honour agreed, but noted that he was obliged to have regard to the applicant's wishes. His Honour said: "It might be argued that there were some inconsistencies which would be the [evidentiary] foundation for [the second statement] to be tendered by him." But the prosecutor took the view that, because the second statement "clarified and amplified" the earlier one, if it was to go in as evidence, then so should the first statement. He went on, however, to emphasise that such a step would be contrary to the applicant's interests given that, in his view, any inconsistencies were very minor. Although his Honour agreed with the thrust of the prosecutor's argument, he said that "it seems ... to be arguable that there was an evidentiary basis for that being done". His Honour emphasised to the applicant that both he and the prosecutor were of the view that it was contrary to his interests for either of the statements to go to the jury. Nevertheless, said the judge, it was for the applicant to make the decision whether he wanted to persist with his request that the statements go into evidence, and the judge then warned him again that such a course would be against his interests. Despite this warning the applicant persisted with his application that both statements be admitted and, accordingly, the two statements were given to the jury.

67 In our view, there was no miscarriage of justice arising from his Honour's decision to admit the statements into evidence in accordance with the applicant's insistence that they be given to the jury, notwithstanding the many warnings by his Honour against pursuing such a course. For present purposes, the essential complaint by Mr Carmichael was that his Honour should not have allowed the statements to go in as a matter of the exercise of his discretion. In that respect, we have already noted the limited extent to which the trial judge can advise the accused.

68 A judge is not to play the part of the accused's counsel by instructing or advising him or her how to conduct the defence case. Ultimately, the relevant choice remains that of the accused. Thus, in R v. Gidley[48], Hunt, J. held that the trial judge did not err by admitting into evidence material that was prejudicial to the applicant's case but which the applicant insisted upon tendering in evidence. In that case, the Crown sought to tender as evidence a page of the accused's diary in order to show his state of mind before the commission of the relevant offence. The accused's counsel objected and the judge ruled that the diary page was inadmissible. But, during the accused's evidence-in-chief, by which stage he was unrepresented, he sought to refer to the diary. His Honour told him[49] that, although the diary had been ruled inadmissible "on the objection made on your behalf ... [t]hat does not preclude you from referring to it if you wish." The accused did so and was cross-examined briefly on it, but not as to its contents. In re-examination, however, the accused sought to tender the diary in evidence. His Honour reminded him of his former counsel's objection and his previous ruling that it was not admissible, but the accused tendered the diary in any event (without objection from the Crown) and read from it a number of passages. He was, in the event, convicted, and appealed on the basis that the judge should not have allowed him to tender the diary. This claim was rejected by Hunt, J. who held[50]

[26]

73 In our opinion that is unexceptionable.

(c) Failure to put defence fully and fairly.

74 As we have noted, it was also alleged, under ground 1(f), that his Honour failed to put the applicant's defence fully and fairly. In our opinion, the complaint is baseless. The applicant made a substantial and structured final address to the jury over the space of approximately half a day. It included specific reference to the evidence on which the applicant relied. The judge also made a detailed and comprehensive summary of all witnesses' evidence with equal emphasis on examination in chief and such cross-examination as there had been. Thereafter his Honour summarised the prosecution's final address in exactly two pages of transcript and the defence final address in a space of just short of two pages. The final result as we read it was balanced and left no doubt as to the way in which each side put their case and the evidence on which each relied.

(d) Failure to assist

75 It has already been mentioned that, under cover of ground 1(f), the applicant contended that his Honour erred in failing to advise him how he might use the statements for the purpose of showing prior inconsistencies. For reasons we have given, it would have been inappropriate for his Honour to advise the applicant how to use the statements, particularly bearing in mind that the applicant had referred to parts of them when cross-examining S in an endeavour to establish inconsistencies between her statements and her evidence in chief. It was apparent, therefore, that the applicant deduced for himself that he could seek to establish relevant inconsistencies.

76 In the circumstances, we consider that his Honour's impugned failure did not constitute a relevant error on his part and, in any event, did not amount to a miscarriage of justice.

Dr Francis - alleged impermissible re-examination

77 Although not in any ground of appeal, the applicant's counsel before us contended that his Honour erred by permitting the prosecutor to adduce in his re-examination of Dr Francis, who was re-called by the applicant, evidence that was not adduced from her in her examination in chief or in the earlier cross-examination of her by the applicant's counsel. It will be remembered that Dr Francis was the paediatrician who medically examined C. She gave evidence for the prosecution on 21 February 2003, the fifth day of the trial, at a time when the applicant was represented. She said that at 12.30 p.m. on 24 September 2001 she medically examined C. It later appeared that this examination occurred in fact at 12.30 a.m. on that day.

78 We have already referred to the gist of her evidence in chief. She was cross-examined by counsel for the applicant about her observations, about samples taken and on her opinion as to the significance of her observations. In re-examination, the prosecutor, without objection, obtained from the witness that she had taken a lengthy and detailed history from C. She said that in general terms C had told her that she had been raped, but that she, C, said that she did not believe that there had been definite penile penetration.

79 On 26 February 2003, the seventh day of the trial, when the applicant was presenting his own defence, he applied to re-examine a number of prosecution witnesses including Dr Francis. He said that he wanted to cross-examine Dr Francis upon the history she had taken from C and in particular put to the doctor matters that had previously been put to her by his counsel at the committal hearing, concerning the account of the assault given by C, which allegedly differed materially from that given by her to the jury. His Honour refused the application with respect to all witnesses, but later said that he would like to consider the transcript, following which he would entertain the application afresh.

80 On 4 March 2003, the eleventh day of the trial, his Honour said that he would permit the recall of Dr Francis to enable the applicant to attempt to elicit from her the differences between the history that she received from the complainant and the evidence given by C at the trial. The witness was recalled and further cross-examined by the applicant on this matter on 5 March.

81 As we have noted, the criticism made before us was that the prosecutor was then permitted to re-examine the witness to adduce from her evidence of the detail of the C's complaints. It was put, first, that this was improper. We do not agree. The applicant opened up the terms of the recent complaint to show inconsistencies with the sworn evidence of the complainant. It was proper, then, for the prosecutor to seek to bolster her credit by bringing out the consistencies.

82 Next, it was said that the judge ought to have warned the applicant that this might be the consequence of granting his application to recall the witness. Again, we see nothing in this. It is apparent from the transcript of this application that the applicant was aware that the decision of his counsel not to open up this matter was based upon his forensic judgement. The applicant said, however, that it was contrary to his instructions to counsel that this course was adopted. He was well aware of the possibility that the re-examination may take the course it did. He made no objection at the time.

Masri - allegedly erroneous ruling that he was hostile witness

83 It was contended before us, although this was not the subject of a proposed ground of appeal, that his Honour erred in ruling that John Masri was a hostile witness. Mr Masri was the applicant's brother. The relevant circumstances in which this ruling was given were these. It will be recalled that the evidence of the complainant, S, was that, when she was in the bedroom of the applicant's house, he restrained her with handcuffs before assaulting and raping her. His case was that they had had consensual intercourse. In his record of interview he denied that he used handcuffs and added that he did not have any handcuffs.

84 The prosecutor had a statement from Mr Masri who had a pair of handcuffs for the purposes of his work as security guard. The prosecutor wished to lead this evidence, as well as evidence that the applicant borrowed his brother's clothing from time to time, with a view to inviting the jury to conclude that the brother's handcuffs were available to be used and were in fact used by the applicant in the commission of the offences.

85 Mr Masri gave evidence on the ninth day of the trial. He was asked questions and gave apparently forthright answers about his motorcar. He was then asked about picking up his brother and a girl and taking them to the Drums Hotel on the evening of the assault against S, as S had testified. The witness's answers to nearly all of these questions were that he could not recall. When he was asked about handcuffs, his answers suggested that he thought the questions were directed to plastic handcuffs that hung off the mirror of his car. This apparent confusion was cleared up but when the questions returned to his possession of keys for the handcuffs, he again claimed to understand this as referring to his plastic handcuffs.

86 The witness was then examined in the absence of the jury in the course of which he appeared to have no difficulty understanding the questions about handcuffs. He admitted that he had a pair for the purposes of his work but said that they would not have been at the applicant's home in Bell Street. This was contrary to the statement in which he suggested that they might have been there. He was cross-examined on the voir dire by the applicant and his Honour ruled him to be a hostile witness and permitted the prosecutor to cross-examine him before the jury.

87 It was first contended that his Honour erred by characterising the witness, Masri, as hostile. His Honour, in his reasons for declaring Masri hostile, observed that the witness' evidence was, in a material respect, inconsistent with his statement to the police. He remarked also that the demeanour of the witness was such as to give rise to an inference that he was relevantly hostile.

88 We obviously have not had the benefit of seeing the witness in evidence before the jury or on the voir dire. Our reading of the transcript, however, certainly bears out his Honour's conclusion. The witness' attempts to deflect the questions by reference to plastic handcuffs display a degree of evasiveness that is the hallmark of a hostile witness. We find no error in his Honour's ruling or in his decision to treat the witness as hostile.

89 Then it was said that the failure of the judge to assist the applicant with respect to this matter meant that he was denied a fair trial. It may be assumed that the applicant was unaware of the legal test for declaring a witness hostile. There was certainly no detailed argument upon the prosecutor's application. Nevertheless, given the nature of the application, there is little that the applicant, whether represented or not, could have said or done. We consider that these contentions are not made out.

Ground 4 - impermissible "high stakes" comment

90 It was contended for the applicant under cover of ground 4 that his Honour erred in commenting in the course of his charge by way of reference to the applicant that "obviously he was playing for high stakes in this trial". The impugned passage is to be found in that part of his Honour's charge to the jury that was directed to bringing to their attention the difficulties under which the unrepresented applicant laboured. His Honour said this:

[28]

91 As best we understand it, the contention of the applicant with respect to this ground was that it amounted to an unwarranted suggestion to the jury that the applicant had a motive for lying with the consequence that the burden of proof fell or might be thought to fall upon him.

92 We consider this contention is without substance. When read in context, the sentence is simply to be understood as bringing to the attention of the jury, if this be necessary in the circumstances, that the applicant was at a disadvantage in conducting the trial without legal representation so that they should make allowances for him in his cross-examination of witnesses and in his final address.

Ground 5 - Video tape replayed without adequate direction

93 Ground 5 of appeal is that the judge erred by replaying for the jury portions of a video tape of C's evidence in chief, without at the same time reminding the jury of the applicant's defence. The applicant's contention, which was based on the decisions of this Court in R v. BAH[54] and R v. MAG[55], was that the judge was required to warn the jury that, because they were hearing C's evidence in chief for the second time, and well after all other evidence, they should guard against giving it disproportionate weight simply for that reason and should bear in mind the accused's defence.

94 We do not disagree that it would have been advisable for the judge to give the jury a warning of that kind. BAH was concerned with the question of whether a jury should be given unsupervised access to VATE tapes after they have retired to consider their verdict and it raises questions that are not directly relevant here. MAG, however, was concerned with circumstances in which a jury had retired to consider their verdict and later came back into court to view a VATE tape in the presence of the judge and counsel. Despite a request by defence counsel that the judge warn the jury to keep in mind the cross-examination of the complainant as well as the evidence on the tape, the judge refused to do so. It was held that her Honour's failure to give the warning resulted in a miscarriage of justice. Winneke, P., who delivered the judgment of the Court said[56] that:

[30]

95 That said, however, in this case we do not accept that the judge's failure to give such a direction resulted in a miscarriage of justice. Each case turns on its own circumstances and evidently the circumstances of this case were very different to those in MAG. In that case, there was substantial cross-examination directed to contradicting the complainant's VATE tape evidence. Consequently, there was a real chance that by re-screening the VATE tape without also reminding the jury of the cross-examination, the jury would be left with an impression of the complainant's testimony which unfairly diminished the relative significance of the cross-examination. But in this case the cross-examination of C was perfunctory, and apart from some token puttage at the conclusion of the cross-examination, there was no attempt to contradict her evidence in chief. Indeed to the contrary, most of the cross-examination amounted to counsel[57] inviting C to repeat what she had said in her evidence in chief, frequently with added emphasis and clarity. So far as can be derived from the puttage, the applicant admitted that he was with C and that he had gone to the park with her as she claimed, and that he had sought to have sexual intercourse with her while there as she claimed. The only difference was in the form of a two part proposition that, after C rejected the idea of sexual intercourse with the applicant, to which part of the proposition C had assented, the applicant stood up, called C a "cockteaser" and walked away saying that he never wanted to see her again; which part of the proposition C denied.

96 Given the nature and brevity of that cross-examination, we do not see how the judge's failure to remind the jury of it could have diminished its significance in the minds of the jury. In effect, there was nothing to diminish.

97 There is another significant difference between MAG and this case. In MAG it appears that the judge said very little in her charge about the cross-examination. In this case the judge gave a very detailed summary of C's cross-examination very near to the end of the charge, less than two hours before the jury retired to consider their verdict. The summary was almost as long as the transcript of the evidence, and it included many of the questions and answers verbatim. In our opinion it cannot but have revived the jury's recollection of the cross-examination and, if we may say so with respect, in a fashion which is likely to have maximised its potential for effect. The jury retired to consider their verdict at 12.33p.m. on 12 March 2003, less than two hours after they were so reminded by his Honour of the cross-examination, and returned to court the next morning at 10.27a.m. to ask to see the video of C's evidence in relation to counts 3, 5 and 6. The judge replied that he presumed that they wished to see the video of the relevant evidence in chief and cross-examination, and the jury replied through the forewoman that they wished to see only the evidence in chief. The relevant passages of the evidence in chief were thus located and screened.

98 Given that timing, we think it most unlikely that the jury would have forgotten the detailed summary of the cross-examination from the day before and, since the judge expressly referred to the cross-examination, and received the response that the jury did not wish to see it, the fact is that they were reminded of it.

Ground 6 - failure to give propensity warning or sufficient separate consideration direction

99 Under cover of ground 6 Mr Carmichael argued that his Honour failed to give the jury a propensity warning or a sufficient separate consideration direction. As will be apparent from the evidence earlier set out, the Crown relied at trial upon what were said to be striking similarities between the account of each complainant as something which, the Crown submitted, corroborated or confirmed the account of each of the other complainants. The applicant accepts that it was open to the Crown to adopt that course, as indeed it was,[58] but he contends that the judge erred in failing to make clear to the jury that the alleged striking similarities could only be used as corroboration or confirmation and not as propensity evidence.

100 In the recent case of R v. DCC[59] Callaway, J.A. essayed the several situations in which a trial judge must give a propensity warning and, as his Honour there said, one of the situations in which a propensity warning must be given is where there are:

[40]

107 It may be that there are some respects in which the approach adopted in this case was not as clear as that adopted in either Glennon or Beserick, or as clear as it would have been if it had been in the preferred form. The judge did not direct the jury that they had to be satisfied beyond reasonable doubt as to the absence of collusion and innocent infection,[70] but, in the circumstances of this case, where neither collusion nor innocent infection was said to be in issue, this was not the subject of complaint. [71]

108 All things considered, we are persuaded that the warning that was given would at least have conveyed to the jury the general rule that it was not to reason from evidence of guilt in respect of one complainant to a conclusion that the applicant was guilty in respect of another, and that the sole exception to that general rule (of deciding the case in respect of each complainant by reference only to the evidence that related to that complainant) was the possibility that striking similarity as between the accounts of each complainant might tend to render more probable each of the other complainants' testimony.

109 It follows in our opinion that the warning that was given was a sufficient warning against propensity reasoning in the circumstances of this case.[72]

110 In argument counsel for the applicant made a further criticism of the judge's directions as to the way in which the jury might use the alleged striking similarities. It was that, in explaining the thirteen facts identified as possibly constituting striking similarities, the judge erred in respect of the eleventh: by telling the jury the applicant had said to S that he wouldn't mind marrying her and that he would look after her if he did, whereas in fact in her evidence in chief S had repudiated a suggestion that the applicant had said that: "he'd like [a] future relationship with you". Counsel submitted that the only point at which S had spoken of the applicant mentioning marriage was in one of her witness statements and that since they were admitted only as prior inconsistent statements they were not evidence of the facts.

111 It is sufficient to dispose of the point to mention four matters. First, it is not within the grounds of appeal and counsel did not seek leave to amend the notice of appeal. Secondly, although it is true that the judge received the witness statements of S for the purpose of establishing prior inconsistencies in her version of events, and therefore, they were not evidence of the truth of their contents,[73] the judge gave a redirection immediately following the completion of the main section of the charge in which his Honour told the jury that it was so:

[42]

Thirdly, and perhaps most importantly, even if some of the jury remained of the view that there was some evidence that the applicant had offered a relationship to S, it was but one minor alleged similarity among thirteen similarities; of which many others were far more striking and graphic. Finally, the jury were told in very clear terms that the only use which they might make of any of the similarities was to conclude with more confidence than might otherwise have been the case that the accounts given by the other complainants were accurate.

112 In those circumstances we do not think that there is a realistic possibility that the point could have affected the verdict.

Grounds 1(g) and 7 - cumulative effect of errors

113 We mention, for completeness, it was alleged under cover of grounds 1(g) and 7 that if the errors about which complaint has been made do not, in each case, lead to the quashing of the convictions, their cumulative effect is to make the convictions unsafe and unsatisfactory. In light of our conclusions concerning the individual proposed grounds of appeal, these grounds necessarily fall away.

114 Consequently, the application for leave to appeal against conviction should be dismissed.

Sentence appeal

115 Turning to the application for leave to appeal against sentence, counsel for the applicant conceded that the individual sentences imposed in respect of each count were within the range. The only ground of appeal against sentence pressed in argument was that the judge cumulated too much of the individual sentences and thus produced a total effective sentence and a non-parole period that in all the circumstances offended the totality principle, or that was crushing, or that was, in any event, manifestly excessive.

Totality

116 Counsel's principal submission was that the judge gave insufficient weight to the fact that the three attacks occurred within a period of only 17 days, during September and October 2001, and to the probability that it was a period in which the applicant was consuming large quantities of crystal methylamphetamine. Reliance was placed on S's evidence that the applicant consumed two ecstasy tablets while in her presence and on the grotesque features of the offending demonstrated by the thirteen similar facts put forward by the Crown as corroboration of each complainant's testimony, as well as upon the absence of any prior sexual offending on the part of the applicant. In counsel's submission, those things provided support for views expressed by consulting psychologist, Mr Warren Simmons, in a report of 11 June 2002 (which the judge had before him, in support of the applicant's plea in mitigation), and particularly, Mr Simmons' opinion that the applicant's offending may have been the consequence of the psycho-stimulant properties of methylamphetamine and that there were numerous signs that the applicant had the ability to improve himself and his situation.

117 In our opinion, that submission faces difficulties at a number of levels. To begin with, the judge did not accept that the applicant's offending was the consequence of drug-taking. The judge noted the submission[74] that the applicant's consumption of methylamphetamine provided a possible explanation for the extreme features of the applicant's offending. His Honour also referred to Mr Simmons' opinion that heavy chronic use of crystal methylamphetamine for a period of about six months may have disposed the applicant to aggression and violence. But his Honour was unable to reach a conclusion concerning the effects of drug-taking on the applicant other than that "there appear[ed] to be some foundation for this rather tentative view expressed by Mr Simmons". We add that this was not a case in which it was suggested at trial or on the plea that the applicant's state of mind was so affected by methylamphetamine that he was unable to form the intent to commit the offences with which he was charged.

118 In the second place, both Mr Simmons' report and answers given by the applicant in his police record of interview suggest that, even if the applicant was taking methylamphetamine for some months before the commission of the offences, at the time of offending he still had the ability to take it or leave it and he had developed a sense of the effects that it was likely to have on him if he did take it. On the evidence, therefore, any psychosis or other disorder that resulted from consumption of the drug was likely to be self-induced and something over which the applicant had a degree of control. The judge, however, did not treat the consumption of methylamphetamine as an aggravating circumstance,[75] as his Honour might have done if satisfied of the facts beyond reasonable doubt.[76] In the circumstances, it is hardly open to complain that his Honour did not treat it as something which went in mitigation.

119 In the third place, where offences are very grave and denunciation and deterrence and the protection of the community are the principal sentencing considerations, as they are here, mitigating aspects of offending must play a lesser role in the formulation of the appropriate sentencing disposition. As the judge rightly said, it is difficult to overstate the seriousness of these offences given that the applicant behaved as a sexual predator towards the three young complainants and subjected two of them to an extended and terrifying ordeal.

120 Finally, and contrary to the thrust of the applicant's submissions, there is nothing substantial to suggest that the applicant's prospects of rehabilitation are other than conjectural. As Mr Simmons put it in his report, given the length of time which the applicant must spend in prison, and what Mr Simmonds described as "issues" as to whether the applicant undertakes the Sex Offenders Treatment Program: "it is not possible at this time to provide an assessment of the future risk that [the applicant] will pose to the community".

121 Counsel for the applicant next submitted that the judge had not given sufficient weight to what counsel described as the fact that the attacks upon the three complainants were all part of a single, continuing episode and that the judge had, therefore, cumulated the sentences imposed in respect of the three complainants in a way that offended the totality principle. That submission is equally unpersuasive. In our opinion, the three attacks were not part of the one continuing episode. They were discrete episodes of criminal conduct with no more connection than that they were all committed by the applicant.

122 Counsel referred in support of his submission to the decision of this court in R v. MDB[77] and argued by analogy that the reasoning which was applied in that case was applicable to this one. But the analogy is inapt. In MDB the attacker went on one occasion to the home of a sole female complainant and in the course of that one occasion committed a number of preparatory offences against her and her small children before committing the principal sexual offence against her. As Batt, J.A. explained[78]:

[44]

123 Contrastingly, in this case there were three separate attacks against three different and unrelated complainants on three discrete occasions, which were days apart. The idea that they should be viewed as part of a continuing single episode of criminality depends on acceptance of the argument assumes that the sentencing judge concluded that the applicant's offending was the consequence of consuming methylamphetamine in circumstances over which he had no control. But, for the reasons already given, we have rejected that proposition. We consider that these were separate criminal episodes that warranted a substantial degree of cumulation and, in our opinion, the judge's orders for cumulation were proportionate to total criminality.[79]

Sentence not crushing

124 Counsel submitted in the alternative that even if the three attacks were properly viewed as separate episodes of criminal conduct, the judge had not given sufficient weight to the need to avoid a total effective sentence and a non-parole period which, in all the circumstances, was crushing and that the orders for cumulation required modification to avoid that result. We disagree.

125 Views may differ as to whether any given sentence is crushing. The test most often applied is whether the sentence is of such a length that it would provoke a feeling of helplessness in the applicant when and if released [80] or whether it connotes the destruction of any reasonable expectation of useful life after release.[81] But length of sentence is not always determinative and there are cases in which the length of a sentence may almost certainly have those effects and yet still not be manifestly excessive.[82] In the end, as so often has been observed, it is a matter of impression and there is little that may usefully be said about it.

126 There is, however, not much doubt about the principles that govern the moderation and cumulation of individual sentences in order to avoid a crushing total effective sentence,[83] and in this case the judge expressly noted the importance of those principles and evidently paid close attention to their application, having regard to the mitigatory considerations urged on behalf of the applicant. Consistently with the weight his Honour accorded to those considerations, the learned judge imposed individual sentences (which, as we have said, are not criticised) and then made orders for partial cumulation of the individual sentences in respect of each complainant before partially cumulating the total sentences imposed in respect of each complainant. The judge's methodology followed closely the steps that Grabovac and Nikodjevic suggest should be taken in order to determine correct individual sentences and appropriate degrees of cumulation. In the course of the exercise, his Honour noted, correctly, that the prima facie position with sentences of this character is that they should be cumulated; but observed also that to do so in this case would result in a total effective sentence of more than 27 years. Consequently, his Honour moderated the order for cumulation, as it was said in Grabovac and Nikodjevic should be done in cases of this kind, to produce the total

effective sentence of 22 years and nine months' imprisonment. Given then the nature and gravity of the offences and the uncertainties that attended the applicant's prospects of rehabilitation, his Honour set a non-parole period of eighteen years, which, in our opinion, is unremarkable.

127 In the result we are unable to detect any error of principle in the judge's sentencing synthesis or any other indication of manifest excessiveness in the total effective sentence imposed or in the non-parole period that was set. The applications for leave to appeal against sentence should accordingly be dismissed.

[55]

132 I interpolate that it was not contended by the Crown at trial that the applicant had in fact killed three men, or any men, or that he had just been released from gaol upon completion of a sentence for homicide. The jury, however, was not told anything of the Crown's position in this regard. Nevertheless, the question of the accused man's criminal or gaol history was not thereafter entirely ignored.

133 It appears from the argument as to admissibility that the evidence of the complainant on this matter departed somewhat from her statement to the police. She there had said that it was four men that the applicant said he had killed. She records him as telling her about this matter: "I hunted them down, I killed them, I was caught for it and I went to gaol". None of this was before the jury.

134 In her statement and in her evidence at the committal proceeding, she had also described another conversation between herself and the applicant at the Gowrie Railway Station in which mention was made of his having been imprisoned. This conversation, she said, occurred soon after they met on the night before the offences were said to have been committed. She had said that she then remarked upon the skill of the applicant in rolling his own cigarette and that he responded that he had just come out of gaol. She did not, however, give this evidence at trial, a fact the significance of which the applicant did not appear to understand.

135 The applicant cross-examined S, apparently suggesting to her that she was very willing to accompany him to his home that where, according to him, consensual sexual acts occurred. He put to her the improbability that she would otherwise accompany a man who was not known to her into places of danger - a man who had said he dealt in drugs and had been in gaol. The prosecutor protested at this, saying that there was no evidence that, at this time before the incidents in question had occurred, the word goal had been mentioned between them. This observation was in fact correct.

136 The applicant responded in the presence of the jury by drawing attention to the cigarette rolling conversation which appeared in the witness's statement. The prosecutor then said this:

[64]

"As the accused has said to you only very recently, his background as a Lebanese Muslim man is capable, I suppose, in circumstances of creating a bias. He certainly put it to you that that was a factor that had entered into it and, I am sure, it will take no more than a moment's reflection to appreciate that that is irrelevant and can play no part in your deliberations and I am sure it will not, but there are many other matters. For example, the accused man emerges in the evidence as a person who on one view, in any event, was attempting to initiate a drug conversation, if not a drug transaction, with 15 year old girls and that is a matter and he being at that age, I think, 31 years is a matter which is quite capable of acting to his prejudice. You would be perfectly entitled to take a disapproving view of the admitted conduct on the part of the accused and, as I understood, what he was saying to you in the course of his address, he accepted that you would. What he was emphasising, of course, was that whatever view you took of his conduct that didn't amount to establishing that he had committed the offences with which he is charged, and that's true, of course. He is perfectly justified in saying that.

There are elements in this case that might well cause you to disapprove of the accused in the sense of what he has admitted he has done; not only the matter that I have just adverted to, but his frequent references to the fact that he has been in a lot of trouble with the law. He has been in prison, although, as he said, not for sexual offences, but he has been in prison, he said. He has made it clear that he is in custody now, and he has made it clear in the course of his address to you that he was, in effect, attempting to seduce a 15 year old girl by taking her to the park after midnight on a September evening. All those are matters which are not irrelevant to the case, particularly, the last matter that I have referred to. They are relevant, and they are the setting in which the issues before you arise, but my point is, you do not convict him because of those matters. You convict him because in the context of the issues that exist between the Crown and the accused you are satisfied that the offences are made out, as I say, the fact that that is the background to the issue in respect of [C], for example, is not irrelevant for your consideration of the factual issues. My point is that you do not convict him because that is the setting or because of a prejudicial response to something that might be legitimately considered, but does not amount to evidence of the offences that are before you."

[65]

140 Against this background, I turn to the grounds that concern this statement about the killing of the three men. Grounds 2(a), (b) and (c) complain about its admission into evidence. It is apparent from his Honour's ruling, which I have set out above, that the evidence was admitted to show intimidatory conduct on the part of the applicant. In his submission the prosecutor said that the evidence provided an explanation why S did not go immediately to the police. In fact, she did not report the incident to the police until 19 November, some five weeks after the incident. I have no doubt that his Honour was entitled to admit this statement into evidence. Moreover, it could not be said that it should have been excluded in the exercise of his Honour's discretion. I mention in this regard that, in agreement prior to the empanelment of the jury, counsel then appearing for the applicant made no submission that the evidence of this conversation be not led.

141 It was then contended in grounds 2(d) and (e) that the trial judge failed to direct the jury as to how they might and might not use this evidence. What is puzzling is that no-one, neither the prosecutor nor the judge, thought to tell the jury that the words put in the mouth of the applicant were untrue. Before us, it was put that this could not reasonably have been achieved for fear of putting the applicant's character in issue. I think not. There would be no difficulty with the prosecutor or the judge, with the concurrence of the applicant, or perhaps even without this concurrence, telling the jury that it was not contended by the prosecution that the applicant had killed any man or had been in gaol for this. And in any event , the control of the trial judge over the trial process, would have been available to ensure that the applicant was not put at a disadvantage as a consequence. It will be recalled that the words attributed to the applicant were evidence of admissions: they were evidence of the truth of the facts asserted. It cannot be consistent with a fair trial that there was before the jury prejudicial evidence of this kind whose impact was dependant upon the acceptance by the jury of the facts that the statement was made and that the complainant believed it to be true. And this was evidence of a fact which was known to be false.

142 It is regrettable that nothing was said to correct this false perception. If the true state of affairs had been brought to light it would not have been difficult to instruct the jury that there was no evidence that the applicant had killed three men. That, then, would have been the end of the matter. If, however, at the close of the evidence, there was any evidence upon which the jury might believe the applicant to be a killer, then it would have been necessary for the judge to instruct the jury as to how they might and, more importantly, how they might not use this evidence.

143 As I have mentioned, nothing was said to make it clear that the jury should not act on the basis that the applicant was a murderer or that he had been in gaol for homicide, as he had stated to the complainant, S. Given that the Crown accepted that the statement was untrue, it is not surprising that no direction was given as to the use the jury might or ought not to make of the stated fact if they accepted that the statement was made. What is a matter of concern is the risk that the jury, having accepted the evidence that the statement was made, might think it to be truthful. To my mind the trial will have miscarried for this reason, unless this Court can be satisfied that the jury did not retire to consider their verdict believing the applicant to be a killer. Such a piece of information is so prejudicial to the applicant that a miscarriage of justice would be inescapable unless the jury had had the benefit of the trial judge's direction upon it. What, then, is there to lead to a conclusion that the jury did not have such a belief. We were pressed with the submission that the evidence of S and the circumstances of the statement which she attributed to the applicant were such that the jury would think he was engaging in some false bravado or trying to bluff the young girl into silence by some extravagant fiction. It would seem, too, that both the trial judge and the prosecutor must have thought this was the case; otherwise, their silence is inexplicable. I am very conscious that they are in a far better position than I to gauge the atmosphere of the trial and the significance of the evidence in the context of the other boastful and false assertions which were attributed to the applicant. My brethren conclude that, in the circumstances, they were right in so thinking. It is at this point that I have the misfortune to disagree.

144 I find myself unable to sweep aside the prospect that the jury would have accepted as true the applicant's false statement that he had killed three men. I am mindful of the fact that the applicant, having had his protest rejected by the trial judge's ruling as to admissibility of his admission, may not himself have been able to bring its falsity to the attention of the jury and may not have thought he could have achieved this in some other way. His concern to avoid its adverse impact is apparent in the two passages which I have quoted where he sought to make it clear that his gaol experience was the consequence, not of sexual crimes of the kind he was then facing, but the consequence of crimes of violence. In my mind, this could well have reinforced in the minds of the jurors the fact of his statement that he had killed three men and provided a further basis for their believing that it had been made and that it was true.

145 I conclude, therefore, that Ground 2 has been made out, and would, on that basis, grant leave to appeal against conviction and allow the appeal.

[85]

[1] C ("the first complainant") - aged 15 years;

S ("the second complainant") - aged 15 years;

E ("the third complainant") - aged 16 years.

[2] Count 1 - threat to kill.

[3] Count 2 - digital rape.

[4] This conduct was the subject of count 3 (attempted rape) of which he was acquitted.

[5] Count 4 - assault.

[6] Count 6 - penile rape.

[7] The applicant did not give evidence and no record of interview setting out his version of this incident was tendered in evidence.

[8] Count 10 - unlawful imprisonment.

[9] Count 11 - oral rape.

[10] Count 12 - indecent act with a child under 16 years.

[11] Count 13 - vaginal rape.

[12] Count 14 - penile rape.

[13] Count 15 - indecent act with a child under 16 years.

[14] Count 16 - penile rape - in relation to which the jury did not reach a verdict as has been noted.

[15] Count 17 - oral rape - on which the jury returned a verdict of not guilty.

[16] Count 18 - penile rape - in relation to which the jury did not reach a verdict as has been noted.

[17] Count 19 - threat to kill.

[18] Count 21 - false imprisonment.

[19] Count 22 - assault with intent to rape - charged in the alternative to count 23.

[20] In his sentencing remarks the learned sentencing judge noted that, although no urine stains were found on that carpet after forensic examination, this was consistent with the tiled area outside the bathroom having been recently washed and concluded that the washing was required because E involuntarily urinated in that area as she had claimed.

[21] [2000] VSCA 169; (2000) 2 V.R. 287.

[22] At 294 (with whom Brooking and Chernov, JJ.A. agreed).

[23] [1992] HCA 57; (1992) 177 C.L.R. 292.

[24] At 362.

[25] See also Deane, J. at 326 to a like effect.

[26] Conway v. The Queen (2002) 209 C.L.R. 203 at 208 per Gaudron, A.C.J., McHugh, Hayne and Callinan, JJ.

[27] [1955] HCA 59; (1955) 93 C.L.R. 493 at 514.

[28] Unreported, 2 July 1998, New South Wales Court of Criminal Appeal, Spigelman, C.J., Powell, J.A. and Newman, J.

[29] Spigelman, C.J. and Powell, J.A. agreed with Newman, J.

[30] See also R. v. Ward (1993) 96 Cr.App.R.1 at 25 per Glidwell, L.J. with whom Nolan and Steyn, L.J.J. agreed; R. v. Mills [1997] UKHL 35; [1998] A.C. 382 at 399 per Lord Hutton with whom Lords Goff, Slynn, Hope, and Clyde LL. Agreed; and R. v. Brown [1997] UKHL 33; [1998] A.C. 367 at 374 per Lord Hope, with whom Lords Goff and Slynn agreed. See also, R. v. Irwin (1987) 85 Cr.App.R.294 and Regina v. Howes [1964] 2 Q.B. 459.

[31] At 311.

[32] [1987] VicRp 46; [1987] V.R. 503 at 506.

[33] [1998] 4 V.R. 44 at 47 with whom Winneke, P. and Buchanan, J.A. agreed.

[34] We put to one side for present purpose the fact that the applicant withdrew his instructions from his counsel who represented him at hearings in the County Court that preceded the trial.

[35] The Queen v. Glennon [1992] HCA 16; (1992) 173 C.L.R. 592.

[36] [1979] HCA 65; (1979) 143 C.L.R. 575 at 579.

[37] MacPherson v. The Queen [1981] HCA 46; (1981) 147 C.L.R. 512 at 544 to 546 per Brennan, J.

[38] See R. v. Rich [1998] 4 V.R. 44 at 47 per Brooking, J.A. See also Jago v. District Court (NSW) [1989] HCA 46; (1998) 168 C.L.R. 23 at 56 to 57 per Deane, J; Dietrich v. The Queen [1992] HCA 57; (1992) 177 C.L.R. 292 at 299 to 300 per Mason, C.J. and McHugh, J.; Azzopardi v. The Queen (2001) 205 C.L.R. 50 at 105 per McHugh, J.; Victorian Legal Aid v. Beljajev [1999] 3 V.R. 764 at 772 per Winneke, P.; A-G (NSW) v. X [2000] NSWCA 199; (2000) 49 N.S.W.L.R. 653 at 688 per Mason, P.; and Bayeh v. A-G (NSW) (1995) 82 A.Crim.R. 270 at 275 per Hunt, C.J. at C.L.

[39] [1981] HCA 46; (1981) 147 C.L.R. 512 at 546.

[40] [2003] VSCA 174; (2003) 7 V.R. 442.

[41] At 454 per Chernov, J.A. (Emphasis original).

[42] At 456 per Chernov, J.A., referring to R. v. Osborne [2002] VSCA 156; (2002) 133 A. Crim. R. 519 at 534.

[43] At 453 per Chernov J.A.

[44] MacPherson at 546.

[45] See, for example, R. v. Pirimona, Unreported, 6 November 1998, Tasmanian Court of Criminal Appeal, Cox C.J., Underwood and Crawford, JJ., where the actions of the trial judge gave rise to a spectre of perceived bias against the prosecution.

[46] [1990] HCA 51; (1990) 171 C.L.R. 207 at 214 per Deane, Dawson, Toohey, Gaudron and McHugh, JJ. See also Simpson v. The Queen (1998) 194 C.L.R. 228 at 244 per Kirby and Callinan, JJ.

[47] Unreported, 2 November 1995, Supreme Court of Victoria, Court of Appeal, Charles and Callaway, JJ.A. and Vincent, A.J.A.

[48] [1984] 3 N.S.W.L.R. 168.

[49] At 178.

[50] At 181.

[51] At 458.

[52] At 445.

[53] At 472.

[54] [2002] VSCA 164; (2002) 5 V.R. 517.

[55] [2005] VSCA 47.

[56] At [23].

[57] Who then represented the applicant.

[58] Director of Public Prosecutions v. Kilbourne [1973] A.C. 729 at 737; R v. Boardman [1975] A.C. 421 at 440_; BRS v. The Queen_ [1997] HCA 47; (1997) 191 C.L.R. 275 at 283 per Brennan, C.J., at 299 per Gaudron, J., at 304 per McHugh, J. and at 324 to 325 per Kirby J.; R v. Buckley [2004] VSCA 185; (2004) 149 A. Crim. R. 122 at 137 [44] to [49].

[59] [2004] VSCA 230.

[60] At [5]. Citations omitted.

[61] At [7]. Citations omitted.

[62] R. v. Best [1998] 4 V.R. 603 at 612; R. v. Tektonopoulos [1999] VSCA 93; [1999] 2 V.R. 412 at 416 [18] to [19].

[63] See BRS v. The Queen [1997] HCA 47; (1997) 191 C.L.R. 275 at 305 per McHugh, J.

[64] [2004] VSCA 230 at [14].

[65] R v. Glennon (No.2) [2001] VSCA 17; (2001) 7 V.R. 631 at 679.

[66] At [15]. Also see Eames, J.A. at [31].

[67] At 679.

[68] (1993) 30 N.S.W.L.R. 510.

[69] At 516; see also R v. DCC [2004] VSCA 230 at [12].

[70] R v. Best [1998] 4 V.R. 603 at 616.

[71] cf. R v. DCC [2004] VSCA 230 at [7].

[72] See and compare KRM v. The Queen [2001] HCA 11; (2001) 206 C.L.R. 221 at 246.

[73] R. v. Askew [1981] Crim. L.R. 398; Birch v. R. (1924) 18 Cr. App. R 26; Cross on Evidence, Aust Ed. at [17335] to [17545].

[74] Made in support of the plea in mitigation.

[75] cf. R v. Tucker and Lewis (1989) 43 A. Crim. R. 377 at 379; Jerrard v. R (1991) 56 A. Crim. R. 297 at 301; R v. Rosenberger [1995] 1 Qd R 677 at 678 to 9.

[76] Cheung v. The Queen [2001] HCA 67; (2001) 209 C.L.R. 1 at 13; R v. Storey [1998] 1 V.R. 359 at 366 to 369.

[77] [2003] VSCA 181.

[78] At [6].

[79] Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295 at 307 to 308.

[80] R. v. Cowie, Unreported, 2 February 1978, Court of Criminal Appeal, per Gillard, J.

[81] R. v. Yates [1985] VicRp 3; [1985] V.R. 41 at 48.

[82] R. v. Crowley and Garner (1991) 55 A.Crim.R. 201 at 206; Fox & Frieberg, Sentencing, 2nd Ed. at [9.620] to [9.621].

[83] Mill v. The Queen (1988) 166 C.L.R. 59 at 63 to 64; DPP v. Grabovac [1998] 1 V.R. 664 at 676 to 681; R v. Nikodjevic [2004] VSCA 222 at [36] to [39].

[84] We note that there is a discrepancy in relation to count 3 between, on the one hand, the notation of "not guilty" on the backsheet of the presentment and, on the other, his Honour's sentencing remarks and the Return of Prisoners in respect of that count. In his sentencing remarks, his Honour mistakenly refers to count 3 instead of count 4 when sentencing the applicant for the offence of common assault and this "slip" is reflected by the Return of Prisoners Record, which states that the applicant was sentenced to two years' imprisonment on count 3 and fails to record the applicant's conviction and sentence on count 4. It is plain, however, the his Honour intended to sentence the applicant to two years' imprisonment in respect of the offence of common assault and that he was aware that the applicant had been acquitted on count 3 for the offence of attempted rape.

[85] We note for completeness that the Return of Prisoners Record incorrectly states that the applicant was convicted on count 5 for the offence of rape rather than the statutory alternative of assault with intent to rape.