R v M N G [2002] VSCA 7

21. Omitting particulars, the grounds of appeal taken in the applicant's notice of application are as follows (save that I refer to the counts mentioned by their original numbering and continue to refer to the two sisters named in the presentment as the complainant and R):

1. The trial of the appellant miscarried because evidence of alibi and other evidence was not called on behalf of the appellant.

2. The trial of the appellant miscarried because the Crown were permitted to amend the date upon which the offences contained within counts 3 and 4 upon the presentment allegedly occurred, without any instructions being obtained from the appellant.

3. The learned trial judge erred in that having ordered severance of the counts involving the complainant from those counts involving R and having further ruled that the evidence of the complainant was inadmissible upon the trial of the appellant for offences against R, his Honour then ruled that the evidence of R was admissible in the trial of the appellant for offences against the complainant.

4. The learned trial judge erred in ruling that the evidence of R was admissible as similar fact evidence.

5. The learned trial judge erred in permitting the complainant and R to give their evidence by V.A.T.E.[1] pursuant to s.37B of the Evidence Act 1958.

6. By virtue of grounds 1 to 5 above the verdicts are unsafe and unsatisfactory.

31. Before turning to the grounds of appeal in any detail, something more must be said about the offences of which the applicant was found guilty. At the relevant time the complainant was living in a large provincial town with her mother, her three sisters and a younger brother. According to the complainant, she slept in a back room by herself, while her four siblings shared two other rooms. The applicant, with whom the mother was very friendly, was a regular babysitter: in his record of interview, he said that he had performed this function for some four years.

34. During her interview on 12 June 1998, the complainant described three separate occasions of sexual assault. The earliest was said to have occurred "in December last year", although it was this which in cross-examination she described as occurring in early 1998. The applicant was babysitting, while the complainant's mother was at bingo. The applicant and the complainant sat together in the lounge room and, according to the complainant, the applicant "just played with my tits and my fanny". After the other girls had gone to bed, the applicant got her out of bed and fondled her again, under her nightdress but over her underpants. These allegations gave rise to count 2.

37. Again according to the complainant in her interview, on the Saturday night before the interview (that is, on 6 June 1998) the complainant's mother had again gone out to bingo and again the applicant was babysitting the children. After tucking in the girls, he "came back" to the complainant's room, lay on the bed and pulled up her nightdress. What followed was the same sort of indecent fondling as before (count 3) and then, after the applicant pulled down the complainant's knickers, the penetration which founded count 4.

40. Then, on the night immediately preceding the interview with police on 12 June, the events allegedly occurred which gave rise to counts 7 and 8. According to the complainant, her mother was again out at bingo and the applicant was babysitting. Again he tucked the children in "like he does every other night", but subsequently, according to the complainant, he pulled down her doona, lifted up her nightdress and "started sucking my tits". When he asked her to take her knickers off, she did not comply and he did not press the matter: she was menstruating at the time. There was further indecent fondling and hence count 7. According to the complainant, the applicant then exposed himself to her and put her hand on his penis: this was count 8.

43. During cross-examination, the complainant recalled another incident in "about May" 1998, the details of which she could not specify, save this: she recalled the applicant then telling her not to tell her mother and threatening that if she did he would punish her. She said in cross-examination that up until this point she thought that "his behaviour was normal", notwithstanding that before 1997 her sister R had made a complaint about a sexual assault by another man. The complainant also said that by the time she made her statement to police (on 12 June 1998) she was aware that R had received some compensation payment for the assault of which she had earlier complained, but she denied that she was envious of R for having the money and claimed that she did not expect that she herself would be eligible for compensation.

46. Because complaint is now made about the evidence led from the complainant's sister R about assaults allegedly made by the applicant on her, it is necessary to say something of R's evidence too. In her interview with police on 12 June 1998, R claimed that the applicant was "like her adopted uncle" (presumably as the result of such regular babysitting). None the less she described two separate incidents of sexual assault by the applicant, and these too allegedly occurred while the applicant was babysitting the children at their home.

49. R spoke first of misconduct that commenced around "November or October" 1997. On that occasion, the applicant touched her "on the fanny" and she asked him to stop. He told her not to tell her mother (she said) as it would cause a big argument. He also touched her, she said, "on my boobs". The second occasion was on the night before her interview. R said that she was sitting on the couch in the family lounge room, watching television with the applicant and her sisters when she asked the applicant for a cuddle. He gave her one, but in doing so he touched her "on the fanny and on the boobs". Later, when tucking her in, he exposed himself to her and placed her hand on his penis.

52. In cross-examination, R said that between these episodes, nothing happened because she kept away from the applicant, although on the night of 11 June she had wanted a cuddle. She also said in cross-examination that she knew it was appropriate to report sexual abuse; in fact she was still receiving counselling for the previous incident (in which the offender was not the applicant) for which she had received some $15,000 in compensation.

55. The evidence of the mother was relevantly brief. She confirmed the compensation payment received by her daughter R. She spoke also of the family's move, in about 1995, to the house they were then living in and of the applicant's babysitting the five children while she was out at bingo. She said that the applicant had on more than one occasion told her that she should not leave the children with anyone but him and she had accepted this as a sign of his being over-protective, particularly in the context of her daughter's earlier experience of sexual abuse.

59. It is convenient to deal first with grounds 3 and 4 which make complaint about the admission of the evidence, given by R, of the applicant's misconduct with her. Applicant's counsel made application at the outset of the trial for severance of the counts on the presentment charging the applicant with offences involving the sister R. These were three counts of committing an indecent act with a child under the age of 16 and, as already described, severance was ordered. As the reasons given at the time disclose, severance was ordered because, in the trial judge's view, the prejudice to the applicant of evidence of his offending against the complainant would outweigh its probative value on the trial of the applicant for offences against R.

62. On this application, Mr. Tehan contended that the judge had therefore concluded that the evidence of the complainant was inadmissible on the trial of the applicant for offences against R and, if that was so, the argument ran, it must be equally true that the evidence of R should have been ruled inadmissible on the trial of the applicant for offences against the complainant. In my view, this argument is flawed at more than one point. First, it rests upon a false premise, for severance was ordered, not because of inadmissibility otherwise, but because of prejudice. His Honour regarded the alleged offending in respect of the complainant as more serious than that alleged in respect of R, and hence the prejudice if the complainant were allowed to speak of those offences on the trial of the applicant for offences against R. The reverse was not the case, simply because the offences charged in relation to R were either of the same type as or less serious than those charged in relation to the complainant.

65. Moreover, the argument that the evidence of R was otherwise inadmissible on the trial of the applicant for offending against the complainant cannot be sustained. Since Hoch v. The Queen[2], it has been established that in a case like this the evidence of one complainant may be given on the trial of the offender for offences against another complainant in like position: such evidence "serves two functions. Its first function is, as circumstantial evidence to corroborate or confirm the veracity of the evidence given by other complainants. Its second function is to serve as circumstantial evidence of the happening of the event or events in issue."[3] In that way the evidence of one girl may lend credibility to the evidence of the other and that was so here, given the similarities which obviously attended the evidence of the two sisters. The judge spent some time during his charge directing the jury about the use that might be made of the evidence of R, warning them at the same time against its misuse - and no complaint is now made about the charge in that respect, nor could it be. His Honour pointed to the similarities in the evidence of the two sisters and left to the jury the question of truth, concoction or coincidence: see Crimes Act 1958 s.398A, R. v. Best[4], R. v. T.J.B.[5], R. Tektonopoulos[6]; compare Pfennig v. The Queen[7]; but otherwise the evidence of R was plainly admissible: see also and compare Crimes Act s.372. In argument, Mr. Tehan submitted that there were significant dissimilarities in the two accounts of the applicant's misconducting himself, but the similarities were more important than the differences: compare R. v. K.R.A.[8], R. v. GAE[9]. There is nothing therefore in grounds 3 and 4.

69. As for ground 5, the complaint here is that the trial judge erred in permitting the two girls to give their evidence by V.A.T.E. under s.37B of the Evidence Act 1958. It was submitted that, on examination, the transcript did not disclose that the judge had turned his mind to the discretion conferred upon him by s.37B, but again there is nothing in the point. There was discussion between counsel and the Bench about the use of the video recordings and, at one stage, the judge made the observation that the two sisters did seem "fairly mature girls for their age". His Honour even said that he wondered why "in those circumstances a VATE tape was used", adding "but I understand that's for convenience". Thereupon the prosecutor said that the procedure was employed because of their respective ages at the time of the offences and the advantages inherent in having now, some two years later, a record of their evidence which was much closer in time to the alleged offences, and the matter was not further examined.

72. It is not in dispute that the statutory pre-conditions for the use of the procedure by V.A.T.E. were fulfilled: the complaint, as developed in argument, was only that the judge did not appear at any stage to have turned his mind to the exercise of the discretion he had under s.37B, but in the light of discussion that did occur there is nothing in that submission. No objection was raised by counsel for the applicant, the statutory conditions were fulfilled, and plainly his Honour was aware that the procedure was being allowed because of the circumstances. An experienced trial judge, his Honour must have been alive to the discretion he had in the matter, but the parties seemed content and he was not asked to intervene. In particular applicant's counsel sought no exercise of discretion by the judge in his favour. In those circumstances I see no merit in ground 5.

76. Grounds 1 and 2 were the principal source of argument before us. In the first the complaint of the applicant, who did not himself go into the witness box, is that evidence of alibi and the like was not led at trial, despite his instructions to his legal advisers that such evidence existed.

79. That such instructions were given seems clear enough. The committal was not contested; it proceeded by way of hand-up brief and, apparently immediately afterwards, on 3 December 1999, the applicant's solicitor filed formal notice of particulars of alibi. That notice, which was in Form 1 of the Crimes (Alibi Evidence) Regulations 1992, declared the applicant's intention to call at trial "evidence in support of an alibi", particulars of which were stated as follows: -

"On the sixth day of June 1999 [an obvious mistake for 1998] the defendant was at his sister's house [the address of which was then given]".

The obvious implication to be drawn is that, being at his sister's house on 6 June 1998, the applicant was not at the home of the complainant on that night as claimed by her in relation to counts 3 and 4. In the formal notice there followed after the particulars a list of seven persons who would be called "to give evidence in support" (and all seven have since sworn affidavits). This notice, dated 3 December 1999 (and which is conveniently described as "the notice of alibi"), was prepared (the applicant claims in an affidavit) on his instructions to his solicitor; yet no such evidence was led at the trial. Hence the present complaint.

84. By the time we heard argument in this matter, the applicant was relying upon 14 affidavits, to all of which we were referred without objection. These affidavits deal in the main with a children's costume party which was held at his sister's house on the afternoon of 6 June 1998 and the presence of the applicant at that party and afterwards. First, there were affidavits of the applicant himself, sworn on 7 June and 25 October 2001. Then there were the supporting affidavits of his sister, sworn on 7 June and 8 October 2001; of her husband (sworn on 7 September 2001 and 22 October 2001) and of their two teenage children (sworn on 7 September 2001 and 4 October 2001 respectively); of the applicant's mother and his father (both their affidavits being sworn on 7 September 2001) and of a family friend (an affidavit sworn on 4 October 2001). Thirdly, there was the affidavit of the clown at the children's party (an affidavit sworn on 8 October 2001) and most recently of the person who hired out the costumes on Friday 5 June 1998 for return on the following Monday (an affidavit sworn on 15 November 2001).

87. In summary, the substance of the affidavits is that in June 1998 the applicant was living at his sister's house and that on 6 June a children's birthday party was held there in the afternoon, for one of the sister's children. Among those who came to the party were the complainant, her four siblings and their mother. With varying emphasis, the affidavits attest to the presence of the applicant at the time of the party and as the guests were leaving, save only for his departure from the house on two occasions: the first to drive to the complainant's house to collect the children there (including the complainant and R) and bring them to the party, and the second, to drive them home again afterwards. Each of these absences, it is said, was in the order of 30 minutes only. Shortly after the second trip, the applicant claims (and in this he is supported by his sister), he went to bed because he was not feeling well.

90. In one of the affidavits (that of the family friend, sworn on 4 October 2001) the deponent, who was present at the party on 6 June 1998, recalls speaking with the applicant before he left to drive the complainant and her siblings home after the party. She says[10]:-

"I can recall that [the applicant] said to me before he left that as I would probably be gone by the time he got back that he would see me at the university lab that night and that he would help me with the assignment. He stated that he was going to go there to download some things".

But apparently the deponent changed her mind, for her affidavit proceeds[11]:-

"I don't know how long he [the applicant] was gone before he returned. After [he] returned I told him that I had decided not to go to the university lab and that I was going to work at home instead. I believe that [he] had gone to his room by the time I had left and that [his sister] escorted me to my car."

This last can mean only that the deponent did not see the applicant as she left the sister's home, but that the applicant did go to bed soon after his return is confirmed by his sister in her affidavit of 8 October. She swears that at the time the applicant was "was suffering from severe asthma and chronic stomach problems" and was, she believed, on medication. She says that in the course of that night she saw him more than once in bed, asleep, when she went to check on his breathing. One of the nieces, too, deposes to seeing the applicant in bed asleep when she tried to take him a cup of coffee, although (as in the sister's affidavit) the hour of day is unspecified.

97. The unstated conclusion of these affidavits is that the applicant was not babysitting at the complainant's home on the night of 6 June 1998. Some of the affidavits contain passing reference to evidence that another adult was present at the complainant's house on the night of 11 June, one who, the applicant claims, could have given evidence inconsistent with that of the complainant about the applicant's conduct on that night. It is by no means clear what this evidence was in detail and whether, and if so how far, it would have been inconsistent with what the complainant said happened. There is no affidavit from the adult witness herself, but the argument put to us focussed on the night of 6 June, and events of 11 June were referred to only incidentally.

100. It was conceded before us that the evidence the subject of all these affidavits could not be called fresh evidence in the technical sense. It was evidence which was available at the time of the trial and, with due diligence, could have been put before the jury. Indeed, that was the complaint of the applicant: that he having told his legal advisers, and in particular his solicitor, of the existence of the evidence, nothing was done to enquire further, let alone put the evidence before the jury.

103. Many of the affidavits I have mentioned contain assertions to this effect: that the deponent had been alerted to the possibility of giving evidence at the trial of the applicant, that he or she had been awaiting a call from the solicitor to provide details of the evidence that could be given but nothing at all had been heard in that regard, and that he or she had been available to give evidence at the trial had that been required. More than one of the deponents, it appears, was put off for the time being with a message (albeit conveyed through the applicant) that the solicitor would be wanting to see the witness "closer to the date of the trial".[12] Yet in the end no statements were taken, it appears, from any of them. Despite the notice of alibi given formally to the prosecution on 3 December 1999, nothing seems to have been done by the applicant's legal advisers - either the solicitor or the barrister - to follow up the evidence of the applicant's whereabouts on 6 June 1998, and in particular to proof the witnesses in question or otherwise to secure more details of the evidence available.

106. From the affidavits now before us it appears that the adult witness allegedly present at the complainant's home on the night of 11 June 1998 was the only one who was taken to the solicitor's office and who told her story directly to him: so much is deposed to by the applicant in his affidavit of 7 June 2001.[13] Her name, of course, was not on the notice given on 3 December 1999. But at or shortly before the trial the decision appears to have been taken that the alibi evidence concerning 6 June would not be called. Thus in her affidavit sworn on 8 October 2001[14], the applicant's sister says:

"I was present at the [relevant] Court Complex throughout [the applicant's] trial and I would have been available to give evidence at [his] trial if I had been required. Prior to the trial commencing I was advised by [the applicant's] barrister ... that he did not intend to call any witnesses and that I was free to sit in court during the evidence."

So too, in his affidavit of 7 June 2001[15] the applicant asseverates:-

"During the course of my trial, [the adult witness concerning events on 11 June 2001] was present in the precincts of the court at my request. I advised both [my solicitor] and [my barrister] of her availability and was advised that she was not required. Similarly, a number of the alibi witnesses listed in the Notice of Particulars of Alibi were present at court during the trial and their availability to give evidence was made known by myself to both [my solicitor] and [my barrister]. I was advised by [my barrister] prior to the commencement of the trial that he did not intend to call the alibi evidence on the basis that `nothing sinks faster than a cast-iron alibi'. The decision not to call the alibi evidence referred to above or [the adult witness concerned on 11 June] was a decision which was made deliberately by my legal representatives. I was advised of the decision by [my barrister] and I did not argue with his advice as I do not possess any legal qualifications and I had no reason to doubt the professional competence of [my barrister] or [my solicitor]. I now believe that I was incompetently advised in respect of the matters referred to above and that my conviction represents a miscarriage of justice."

Thus the applicant himself claims that the decision not to call the evidence, taken "prior to the commencement of the trial", was taken deliberately by his legal advisers. As I followed counsel's argument it is that, wanting any detail of the evidence available, the decision of trial counsel must have been uninformed and as such could not have been justified, with the result that the applicant was improperly denied the opportunity to call the evidence he wished to lead. Accordingly, it is contended, the applicant was denied a fair trial by the misconduct of his own counsel in the management of his case.

113. Where an applicant bases his complaint on appeal directly upon the alleged mismanagement of his case at trial by the legal practitioners engaged on his behalf, it is appropriate that the allegations be put squarely before the erstwhile advisers for their response. That was done in this case and we have now an affidavit, sworn on 11 December 2001 by Cameron Marshall, the applicant's present solicitor, recounting the steps taken and exhibiting the correspondence. That affidavit shows that the former solicitor for the applicant, and his barrister, were both asked in writing, and very specifically, about their instructions, the proofing of witnesses and the decision taken (as it seems to have been taken) not to call the evidence available about the whereabouts of the applicant on 6 June 1998.

116. From the solicitor, this response was forthcoming:-

"In response to your questions I advise that [the applicant] instructed me that he had an alibi and I prepared the necessary alibi notice. Counsel in the running of the trial made a decision not to use any alibi evidence."

That very limited response seems to me to confirm the conclusion that nothing was done by the solicitor to proof the witnesses named in the notice of alibi or indeed to follow up at all the possibility of their giving evidence at the trial along the lines indicated by that notice. As for counsel, despite a second letter of enquiry submitting for attention the affidavit of the applicant sworn on 7 June 2001, the notice of application for leave to appeal against conviction and the correspondence from the solicitor, he has made no response to Mr Marshall's inquiry. We therefore do not have any first-hand explanation of the decision taken by counsel at the time of the trial and we must do the best we can on the material that we do have. (A submission that in the absence of any response from counsel we should simply infer misconduct on his part was on reflection withdrawn.)

121. So far I have been dealing with ground 1, that the trial miscarried because of the failure to call the evidence I have been describing; but there is also ground 2, which, as argued, is that the trial miscarried because applicant's counsel did not oppose the amendment sought to the presentment, changing the allegation of misconduct on 6 June 1998 to one of misconduct on or about that date. Application for that amendment was made by the Crown at the outset of the trial; it was not opposed on behalf of the applicant and it was granted. I was curious why the Crown had applied to amend the presentment before any evidence was called; for as it stood before the amendment the presentment was in line with the complainant's evidence in her interview on 12 June 1998, the tape of which was to be (and indeed was) put before the jury. When asked, Mr. McArdle suggested (and he was speculating) that the amendment might have been prompted by the notice of alibi given on 3 December 1999. Thus, the prosecutor, confronted with that notice in respect of 6 June 1998, might have anticipated (he suggested) that when the complainant was cross-examined about the date as foreshadowed in that notice she would shift her evidence, claiming a lack of specificity in her recollection and asserting that the offence had in fact occurred on or about that date. Mr. McArdle then suggested that, as a matter of prudence only, the prosecutor might have seen fit to seek the amendment at the outset, rather than be forced to seek it only after the complainant had been cross-examined.

124. That suggestion was a helpful one, serving quite possibly to explain what occurred. As it happened, the complainant was not challenged during cross-examination over the date 6 June. Having stated, in answer to a specific question, that the applicant had interfered with her on four occasions, she was asked to "run through those one by one". She said the first was "in early 1998" and the second in "about May". She agreed that she had not mentioned the latter on the tape but she had recalled it more recently "since I read my statement". She could not recall precisely what he had done to her on that occasion, but could remember that it was in May, she said, "because it was a month before the 6th of June". She added that it was on that occasion that the applicant had said "don't tell your mum". This exchange then followed about the third occasion for complaint:-

"When was the third time he touched you? --- It was 6 June, Saturday. How are you able to pinpoint that date? --- Because it was five days after that he did it again, on 11 June."

Counsel then went over this again, but simply to confirm her evidence. Nothing was said to challenge the witness's recollection about the date 6 June, no doubt was cast upon its accuracy by either side, and so, in short, the amendment made to counts 3 and 4 was of no particular significance to the case being made by the Crown.

129. In contrast, the amendment appeared to reduce the significance of the whereabouts of the applicant after the birthday party on 6 June in particular and hence no doubt the applicant's present complaint that his counsel should have opposed the application to amend. I agree with Mr. Tehan this far: that counsel's conduct in not opposing that application was probably all of a piece with the decision, also taken at the outset it would appear, not to call the alibi evidence. Certainly it is difficult to see why counsel would have been content to allow the amendment if he had not also decided not to call the evidence of alibi (and correspondingly not to pursue the complainant in cross examination about the date 6 June): on the other hand, if that decision had been taken then his failure to object to the amendment is scarcely surprising. Both grounds 1 and 2 therefore come down to much the same thing: has the applicant established significant mismanagement of his case at trial by his counsel in that he decided before any evidence was led not to call the alibi evidence (and, as a corollary, not to cross examine the complainant over the date of 6 June), and in that he so decided before any proofs were obtained or other particulars secured of the evidence foreshadowed by the notice of alibi given on 3 December 1999?

132. Where on appeal an applicant puts forward additional evidence and does not rely upon error below by judge or jury, the applicant must establish a miscarriage of justice before this court can interfere under s.568(1) of the Crimes Act 1958. In this instance there was no objection to our having regard to the several affidavits which were put before us on behalf of the applicant and, although additional evidence which discloses merely a deliberate act or omission on the part of counsel for the accused in the course of the trial over the leading of evidence does not ordinarily bespeak a miscarriage of justice, it may in some cases bear upon that issue and in more ways than one: see for example R v. Sarek[16] per Brooking, J. That was explained by Smith, J. when delivering the judgment of the Full Court in Re Ratten[17], as follows:-

"Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence. Even the Crown has some degree of choice as to what witnesses it will call. And the accused is completely free to decide how he will conduct his defence. He has the right to choose what issues he will contest, what facts he will dispute, whether he will give evidence or not, whether he will call witnesses or not, and if he elects to call witnesses, which ones he will call. All these rights are fundamental to the conception of fair trial under our system of criminal justice. In conformity with this conception of fair trial, if an accused person can show that he has been prevented by surprise, fraud, malpractice or misfortune from presenting at his trial evidence of substantial importance which he desired to present, or which he would have desired to present had he not been prevented by such causes from being aware of its existence or its significance, then ordinarily the fact that he has been tried and convicted without such evidence having been called involves that he has been deprived of his right to a fair trial and that there has, in that respect, been a miscarriage of justice. But on the other hand, if the reason why the additional evidence was not called is merely that the accused and his advisers made a deliberate choice not to call particular witnesses or a particular class of evidence, then obviously the accused has not been denied, but has exercised, his right to a fair trial, and there has been no miscarriage of justice of the kind described above. This is made even more obvious where the choice was made to obtain, and has obtained, for the accused, substantial advantages such as the last address and the use of strong arguments based on Crown evidence which the additional evidence would have been contradicted. Nevertheless, even where there has been such a deliberate choice, there remains a possibility that the presentation of the additional evidence to the Full Court will show that there has been a miscarriage of justice, but one of quite a different kind. For it may appear to the Full Court that, though there has been no denial of the right to a fair trial, the additional evidence shows the accused to have been the victim of a miscarriage of justice in that it shows him to have been innocent or makes his guilt appear to the Full Court to be too doubtful for it to be just to allow the conviction to stand."

136. This is not the last type of case, for this is not a case in which it can be said that the alibi evidence was such as to demonstrate the accused's innocence or to raise such a doubt about his guilt as to make it unjust to allow the conviction to stand; if it were such, it could be said readily enough to be a miscarriage to allow the conviction to stand. In this instance the applicant will establish a miscarriage only if this court is satisfied, on the material available to it, that his counsel's decision not to call the alibi evidence was such as to deny the accused, in effect, his right to a fair trial. Here the applicant must confront the difficulty that the right to determine what evidence will or will not be called for the defence belongs to the accused so that the mere exercise of that right, whether by the accused himself or his legal advisers, will not per se be evidence that the accused was denied a fair trial. To adapt the words of Smith, J., in order to show a miscarriage the applicant must show that, despite the deliberate decision of his counsel not to call the evidence in question - or, as the applicant would have it, because of that deliberate decision at a time when there was no justification for that decision or no sufficient justification in the absence of any proofs from the witnesses involved - he was "prevented by ...[in effect] malpractice ... from presenting at his trial evidence of substantial importance which he desired to present" and thereby, by his own counsel's misconduct, was deprived of his right to a fair trial.

139. There can be no doubt that the courts approach such allegations with great caution; for obviously the applicant's legal advisers were better placed than the appellate tribunal to make the necessary decisions at trial. As Ashley, A.J.A., put it in R. v. Wakim[18]:-

"A court of criminal appeal is poorly equipped to review decisions made by counsel during the course of a criminal trial, many of which have to be made on the spur of the moment or in circumstances with which an appellate court cannot hope to be familiar."

Moreover, because the appellate tribunal comes into the picture only after the event it is in danger of acting, unjustifiably, "with the excellence of vision which hindsight gives" (to use again the words of Ashley, A.J.A.). In R. v. Birks[19] Gleeson, C.J. had described the position in general terms in this way: -

"It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious".

See also R. v. James McCall[20], R. v. Hadland[21], Ratten v. The Queen[22], R. v. Knowles[23], R. v. Ensor[24], R. v. Ignjatic[25] and R. v. Miletic[26]. In short, miscarriage is not demonstrated simply by counsel's acting incompetently or contrary to instructions; something more is needed to demonstrate the miscarriage upon which appellate intervention depends. In Miletic[27], the Court of Appeal said that usually there had to be "something akin to flagrant incompetence of counsel" before the court would be moved to intervene; in Wakim Ashley, A.J.A. spoke of the "shock factor", being "an instinctive recoiling from what was done".[28] And therein, I think, lies the difficulty for the applicant on this occasion.

146. First, Mr Tehan's point that counsel could not have made an informed decision not to call the alibi evidence because no steps had been taken to "proof" the witnesses or otherwise to secure details of the evidence available, though attractively argued, lacked substance. Certainly the affidavits we have are detailed, although perhaps they are not wholly consistent. For instance, while the parents of the applicant refer in their affidavits, as does his sister, to his having been somewhat ill on the day of the birthday party and retiring to bed early on that account, there is the affidavit from the family friend (sworn on 4 October 2001) which describes her discussion with the applicant after the party about his proposal to see her at the university later that day and work with her there (albeit that she herself cancelled such meeting before she left the sister's place to go home). Perhaps more importantly, in his first affidavit, that of 7 June 2001, the applicant describes his return journey to the complainant's home, after the birthday party, as occasioning his absence from his sister's place for a period of about 30 minutes "between approximately 6.00 pm and 6.30 pm"; whereas in his second affidavit, that of 25 October 2001, he says that he left his sister's premises "at about 4.30 pm" and was gone "for approximately 20-25 minutes". The period of his absence is about the same, but the time of his arrival at the complainant's home must have been very different.

149. Of course these are details that need not concern us now; for counsel had none of these details before him, it would seem, when he took the decision not to call the alibi evidence (and as well, I am supposing, the decision not to oppose the amendment sought by the prosecution to the presentment). What he did have, however, was the notice of alibi, given on 3 December 1999 by the solicitor for the applicant. Making the obvious correction in the year that I mentioned earlier, the particulars were that on 6 June 1998 "the defendant was at his sister's house", that importing the implication that, being at his sister's house, he was not elsewhere on the day mentioned. That was the detail that counsel had, and I simply assume (in favour of the argument espoused by Mr. Tehan) that the legal advisers had no reason to suppose that those named as witnesses to support that alibi could not give the evidence so described. The affidavits we now have show that the particulars given in the notice of alibi are at least an overstatement: for while the applicant was at his sister's house on 6 June, he was certainly not only at his sister's house on that day. He made two trips away and those trips were to the complainant's home, the first for the purpose of picking up his passengers for the children's birthday party and the second for returning them after it. I cannot see how knowledge of this variation in particular, or indeed any of the additional details now disclosed in the affidavits, could have assisted counsel. He was made aware that there was evidence that the applicant was at his sister's place (and by implication only at his sister's place) on 6 June and it was that evidence that he decided not to call. There is nothing to suggest that the decision not to call the alibi evidence depended upon its inherent unlikelihood or any weaknesses in the evidence to be led and there is then no reason to suppose that the decision should have been taken only after the further detail now available had been obtained. As I have said, I think that the decision was probably taken in conjunction with the decision not to challenge the complainant over the date 6 June and not to oppose the amendment to the presentment, which in itself rendered less relevant any specific evidence about the applicant's whereabouts on 6 June in particular.

152. Why, then, did the applicant's counsel decide not to challenge the complainant over the date 6 June and not to oppose the amendment to the presentment? Obviously he considered that there was no sufficient advantage to be gained by mounting such a challenge to this 15 year old's recollection (if such it was) that the relevant offending occurred "on 6 June 1998". At trial, the only defence run was that the complainant had concocted the story of these offences, perhaps with a view to her gaining some monetary compensation as had her sister R on some previous, unrelated occasion. This was put to the complainant in cross-examination and denied by her: but it was not suggested in cross-examination that the offending could not have occurred on 6 June because that was the day of the children's birthday party and the applicant had not been babysitting at the complainant's home on the day of that party. Had such been put, Mr Tehan argued, the complainant's credit must have been damaged and, given that the trial depended upon the oath of the complainant, the jury might well have not been satisfied of guilt beyond reasonable doubt. Indeed, this was so, it was argued, quite independently of the amendment to the presentment.

155. It is important, then, to be clear about just what was the complainant's evidence which, it was contended, would have suffered so grievously from such an attack in cross examination over the date 6 June. According to the record, which was put before the jury, of what was said by the complainant to police on the evening of Friday 12 June 1998, the complainant spoke then not of 6 June specifically, but only of "last Saturday" when, she claimed, the applicant was babysitting. It is plain enough from this record, taken as a whole, that the complainant was alleging sexual misconduct on the part of the applicant when he was tucking the complainant in for the night. There seems no doubt but that the complainant was speaking of an occasion when the applicant was babysitting and if he was not babysitting on 6 June then "last Saturday" was not correct. But this was a twelve year old girl giving her account to the police. In order, she spoke first of offending which, she claimed, occurred "last night" (and plainly that was 11 June). She then spoke of offending which occurred, she claimed, "last Saturday" and it was not put to her by the police (and I imply no criticism in this) that that was the day of the children's birthday party. Perhaps she was but one day out in her recollection; or perhaps she was one week out. In all, she described offending on three occasions, "last night", "last Saturday" and "last December". When in cross examination she put the earliest of these in January or February, not December, amendment was readily enough granted; and had she been challenged about the date 6 June, especially by reference to the children's birthday party which, presumedly, she would have remembered, it is not improbable that she would have shifted ground either to one or other of the days (Friday or Sunday) on either side of 6 June or (as will be seen was perhaps more likely) to the preceding Saturday, that being not "last Saturday" but "last Saturday week".

158. In relation to the amendment of the presentment from 6 June 1998 to "on or about 6 June", the applicant asseverates in his affidavit of 7 June 2001 that his instructions were not sought in relation to the amendment. He says that, had his instructions been sought, he would have told his legal representatives that he did not attend the complainant's home "on the days immediately preceding and immediately following 6 June 1998" and that his sister "would be able to give sworn testimony as to my movements during that period". (I simply note in passing that that would not have been enough if the complainant's reference to "last Saturday" was in truth a reference to the Saturday before that). It is not suggested in the affidavits that trial counsel had this further information about the days before and after 6 June but, be that as it may, it is interesting to observe that in his interview on the night of 12 June 1998, the applicant himself saw no special significance in the allegation, relayed to him, that he offended "last Saturday".

161. According to the record of that interview the applicant was asked first about the misconduct that allegedly occurred "last night" (that is, on 11 June) and then this exchange is recorded (save that in referring to persons I substitute descriptions for names):-

"Q139 [The complainant's] alleging that last Saturday night - did you look after them last Saturday night? Did ....... have to look after the girls last Saturday night? A I don't know, did I? Q140 Did [their mother] go to Bingo? A Is that last Saturday night or the one before? Q141 [The complainant's] saying last ---? A I have looked after her --- Q142 Saturday. A While she went out, yeah. Alright. If - whatever the time was before I go up and say the night before, the one before that. I'm not sure. I honestly couldn't tell you. I've been in a real rush for school and just anything that's not important just hasn't clicked. Q143 [The complainant] says that on that night - she says last Saturday night ---? A Prior to the .... one --- Q144 In her statement, and she says you tucked the girls in and to [two of her sisters] and that you were with - with her - that's [the complainant] in her bedroom, you pulled her nightie up and sucked her tits. What do you say to that? A I deny it."

(Further specific acts of misconduct alleged by the complainant were then put to the applicant and they too were denied by him.) It can be seen that in what I have quoted no mention is made of the birthday party on the preceding Saturday, and in particular there is no denial of babysitting "last Saturday night" because of the children's birthday party. It appears that the complainant's allegations were understood by the applicant as relating either to "last Saturday" or to the Saturday before that, "whatever the time was before".

168. Presumably counsel had this record of interview before him: what he did not have - and what we do not have - is any account of the applicant's movements on the Saturday night preceding 6 June. In all the circumstances it would not be surprising if counsel at trial saw no likely advantage in challenging the complainant about the date 6 June 1998. Had she been challenged about the date by reference to the children's birthday party which presumedly she would have remembered, it seems more than likely that she would have shifted ground to the preceding babysitting occasion, in much the way that the applicant appears in his own record of interview to have understood her accusations. In the end, then, the date 6 June would not have mattered (particularly if amendment followed as it did in relation to the earlier allegation in December). In the circumstances one could understand counsel's coming to the view that to cross-examine a young adolescent about the preciseness of her recollection about "last Saturday" might indeed be counter-productive with the jury. Moreover, to mount a challenge to the allegation of offending on 6 June might not have been any use without evidence of the whereabouts of the applicant, not simply on that Saturday, but also on the previous Saturday.

171. Thus far I have been dealing with the failure to call the witnesses concerning the movements of the applicant on 6 June - the alibi evidence. There is also, however, complaint about counsel's failure to call the adult witness who was said to have been present in the complainant's home on the evening of 11 June, the most recent date of the alleged offending, and who, according to the applicant, could have given evidence inconsistent with that of the complainant. Now, according to the affidavits, this witness was interviewed by the applicant's solicitor and, according to the applicant, she was present at court during the trial and her availability was drawn to the attention of counsel. The legal advisers cannot be supposed in this instance to have been unaware of the details of her evidence, or her availability at trial, and yet it was decided that she should not be called. But that does not demonstrate error on their part. Perhaps counsel considered that her evidence was too inconclusive to bother with, or perhaps he just thought it not credible: we have no way of knowing, especially as the applicant has not proffered any affidavit from that witness herself. For all we can tell, if the witness was at the complainant's house when the applicant was there on 11 June, she was none the less not able to exclude the possibility that the applicant did offend in the complainant's bedroom as alleged. A reasonable explanation for counsel's decision not to call her remains open on the material we have.

174. Finally, there is the fact that the applicant himself did not give evidence in the course of his trial, and in particular did not go into the box to deny the alleged offending. Nor, it must be said, does the applicant do more in the affidavits we now have than deal with his whereabouts on the evening of 6 June and deny that he attended at the complainant's home "on the days immediately preceding and immediately following 6 June" 1998. His complaint is that his evidence of alibi on 6 June was insufficiently explored, notwithstanding his instructions, and the failure to call such evidence led to a miscarriage of justice. Suffice it to say that for the reasons I have given this focus on 6 June is, in my view, not warranted, given all of the circumstances. I think that counsel's decisions, whether right or wrong in the light of hindsight, might well have been properly taken in the circumstances at the time. Certainly I do not accept the submission that counsel's decision not to call that evidence (or indeed the evidence concerning 11 June) or the decision, which was probably associated, not to oppose the amendment affecting counts 3 and 4, must have stemmed from "flagrant incompetence" or some serious dereliction of duty, or amounted to "egregious error", or was such as to lead one now instinctively to recoil from what happened.

177. In short, for these reasons I am far from persuaded that what happened led in this instance to any miscarriage of justice. In my opinion there is no more in grounds 1 and 2 than in any of the other grounds that were argued.

181. Ground 6 was not separately argued. Accordingly, for the reasons I have

given, I would dismiss this application for leave to appeal against conviction.

186. I have had the considerable benefit of reading the reasons for judgment of Phillips, J.A. I agree that grounds 2 to 6 of this application, together with what I might call the non-alibi aspect of ground 1, fail. A proposed additional ground was eventually not persisted in by Mr. Tehan.

189. I have, however, found the alibi aspect of ground 1 by no means easy of resolution. The onus is on the applicant to satisfy the Court that there has been a miscarriage of justice. Proof of negligence on the part of his legal representatives will not necessarily be enough. The principles applicable, particularly where the complaint is that available evidence was not called, are found in Ratten v. The Queen[29], affirming Re Ratten[30]; Re Knowles[31]; R. v. Hadland[32]; and, generally, R. v. Birks[33]; R. v. Miletic[34] and R. v. Wakim[35]. Compare also R. v. Martin (Anthony)[36]. The decision not to call the witnesses in support of the alibi was said by the applicant's former solicitor[37] to have been made "in the running", but, to judge from other, more specific, evidence, it seems to have been made at least before the empanelment of the second jury and thus to have been a considered one. Its somewhat unusual, if not peculiar, feature is that it was taken without any of the alibi witnesses having been "proofed" or even spoken to by a lawyer. But to show that a miscarriage occurred the applicant must exclude any reasonable possible explanation for the decision not

to call them without any statements from them or interview of them which is consistent with there not having been a miscarriage. The reasons of Phillips, J.A. satisfy me of the existence of such an explanation. On that explanation the failure to obtain statements from the witnesses or even to interview them is immaterial.

193. I therefore agree that the application should be dismissed.

198. I agree that the application should be dismissed for the reasons advanced by Phillips, J.A. in his judgment.

[2] [1988] HCA 50; (1988) 165 C.L.R. 292.

[3] Hoch 165 C.L.R. at 296 per Mason, C.J., Wilson and Gaudron, JJ.

[4] [1998] 4 V.R. 603.

[5] [1998] 4 V.R. 621.

[6] [1999] VSCA 93; [1999] 2 V.R. 412.

[7] [1995] HCA 7; (1995) 182 C.L.R. 461.

[8] [1999] VSCA 157; [1999] 2 V.R. 708.

[9] [2000] VSCA 18; (2000) 1 V.R. 198.

[12] See for example the affidavit of the applicant's father of 7 September 2001, paragraph 9, and the affidavit of the applicant's sister of 8 October 2001, paragraph 15, and see also the applicant's own affidavit sworn on 7 June 2001, paragraph 9.

[16] [1982] VicRp 99; [1982] V.R. 971 at 984.

[17] [1974] VicRp 26; [1974] V.R. 201 at 214.

[18] [1998] 2 V.R. 46 at 51.

[19] (1990) 19 N.S.W.L.R. 677 at 684.

[20] (1920) 20 S.R. (N.S.W.) 467 at 472-3.

[21] [1969] VicRp 93; [1969] V.R. 725 at 728-730.

[22] [1974] HCA 35; (1974) 131 C.L.R. 510 at 516-520 per Barwick, C.J.

[23] [1984] VicRp 67; [1984] V.R. 751.

[24] [1989] 1 W.L.R. 497.

[26] [1997] 1 V.R. 593.

[29] [1974] HCA 35; (1974) 131 C.L.R. 510 at 515-520 and 525-526.

[30] [1974] VicRp 26; [1974] V.R. 201 especially at 213-215.

[31] [1984] VicRp 67; [1984] V.R. 751 at 760-761 and 766-768.

[32] [1969] VicRp 93; [1969] V.R. 725.

[33] (1990) 19 N.S.W.L.R. 677 at 684-685.

[34] [1997] 1 V.R. 593 at 598.

[35] [1998] 2 V.R. 46 at 51 and 53.

[36] [2002] 2 W.L.R. 1 at 11-13.

[37] Although the solicitor's statements are not on oath, their reception was not objected to and some use of them can be made: Re Knowles [1984] VicRp 67; [1984] V.R. 751 at 767; R. v. Miletic [1997] 1 V.R. 593 at 596.