R v Mansoori [2019] QCA 250

SUPREME COURT OF QUEENSLAND

CITATION: R v Mansoori [2019] QCA 250

PARTIES: R v MANSOORI, Behzad (appellant)

FILE NO/S: CA No 184 of 2018 / DC No 276 of 2017

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Conviction)

ORIGINATING COURT: District Court at Rockhampton – Date of Conviction: 16 March 2018 (Burnett DCJ)

DELIVERED ON: 15 November 2019

DELIVERED AT: Brisbane

HEARING DATE: 30 July 2019

JUDGES: Philippides and McMurdo JJA and Henry J

ORDERS: Application for extension of time to appeal granted.Appeal allowed.The appellant’s conviction of rape be quashed.The appellant be retried upon the indictment.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted of rape – where the appeal was filed out of time – where the reasons for the delay were credibly explained and not challenged – where attempted rape and sexual assault were logically open as alternative verdicts – where the appellant submits the learned trial judge erred in failing to direct the jury of the availability of the alternative verdicts – where the appellant’s legal representative wrongly advised the jury there was no natural alternative charge for which the appellant could be convicted – whether the fair trial of the appellant required the alternative verdicts be left to the jury – whether the appellant was deprived of a real chance of acquittal of rape by reason of available lesser alternative verdicts not having been left to the jury / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant submits the learned trial judge erred in his directions to the jury by not giving an Edwards direction regarding the use to be made of lies – where the appellant submits the learned trial judge erred in his directions to the jury about the relevance of an inadequate police investigation – where the appellant submits the learned trial judge erred in his directions to the jury about the prosecution’s obligation to prove all elements of the offence beyond reasonable doubt by removing the element of consent from the jury’s consideration – whether the trial judge misdirected the jury as alleged / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant alleges his solicitor advocate put facts to the complainant in cross-examination that did not reflect the appellant’s instructions – where these facts represented a significant and unexplained departure from the appellant’s initial instructions, which the advocate had earlier rejected as implausible – where the advocate claimed to have acted according to the appellant’s instructions, but provided no contemporaneous record of said instructions – whether the appellant substantiated this ground on the balance of probabilities – whether the appellant was deprived of a trial according to law to which he was entitled – whether further submissions relating to police impropriety were of a character likely to distract the jury from its task of properly and dispassionately examining the issues in the case / Australian Solicitors Conduct Rules, r 5, r 8.1, r 21.2, r 24 / Criminal Code (Qld), s 140, s 583, s 578(1) / Browne v Dunn (1893) 6 R 67 (HL), cited / Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, considered / James v The Queen (2014) 253 CLR 475; [2014] HCA 6, applied / Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, cited / Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28, cited / Nudd v The Queen (2006) 80 ALJR 614; (2006) 225 ALR 161; [2006] HCA 9, applied / Quartermaine v The Queen (1980) 143 CLR 595; [1980] HCA 29, cited / R v Armstrong (1983) 35 SASR 356; (1983) 11 A Crim R 363, cited / R v Coutts [2006] 1 WLR 2154; [2006] UKHL 39, cited / R v Holzinger [2016] QCA 160, cited / R v Sheppard [2010] QCA 342, cited / R v Thomas [2019] QCA 37, applied / TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL: B J Power for the appellant / P J McCarthy for the respondent

SOLICITORS: Fisher Dore for the appellant / Director of Public Prosecutions (Queensland) for the respondent

PHILIPPIDES JA: I have had the advantage of reading the reasons of Henry J. I agree with those reasons and the orders proposed by his Honour.
McMURDO JA: I agree with Henry J.
HENRY J: The appellant was convicted by a jury of rape. He appeals his conviction on multiple grounds. Some grounds relate to the conduct of his defence. They include a complaint that his solicitor advocate put a defence case contrary to the appellant’s instructions about what the true facts were. The other grounds allege error in the learned trial judge’s directions and redirections to the jury.

Background

The complainant was a separated woman living with her young son. She and the defendant came into contact via a dating website and in due course she invited him to attend her home at a time after her son would be in bed.
He arrived at her home at about 9 pm on the night in question. They shared a soft-drink and sat in the lounge, with the television running, at opposite ends of a couch with inbuilt recliner seats. They conversed for a while. The appellant tried to hold the complainant’s hand but she pulled it away. She started talking with her hands, as she put it, to deter the appellant from trying to hold her hand. The appellant joined the complainant outside when she went for a cigarette. They then resumed their positions on the couch with the recliners raised.
The appellant tried to lean in and kiss her but she turned her head, with the result that the kiss was to her cheek. She told him she was not interested in sleeping with him or having a one-night stand. He commented he had not seen the bedroom and she said he would not be seeing the bedroom, occasioning some laughter.
The appellant then grabbed at Ms A’s breast, pulling the top of her strapless dress downwards. She tried to push him away but one of her arms was pinned against him and she was also trying to cover up her exposed breast. He ran his hand up her thigh. She tried to push it away but he was persistent. She said “no” on a number of occasions but he continued. He moved her so her legs were running partly along the couch. She tried to keep her legs closed. He reached up and moved her underwear to one side while she still tried to push his hand away. She was fearful her son would wake up and see what was occurring. She continued to try and push him away, but he had released his penis from his pants.
He thrust his penis a number of times at her vagina. The complainant testified the third thrust caused pain to the lips of her vagina and, on the fourth occasion, his penis penetrated her vagina. She gave evidence he moved his penis three or four times and then pulled it out, holding his hand cupped over the head of his penis.
He asked where the bathroom was and she gestured at its location. She sat up and tidied herself. She heard the tap run in the bathroom and a bin lid open and shut as he returned from the bathroom. He returned to the couch, checked his phone, told her to look after herself and left.
She then rang her estranged husband and told him, “I think I was raped”. She explained she used that terminology because she had let the appellant into her house and, looking back, could have fought harder but was scared about her child waking up and seeing what was occurring.
Her estranged husband testified the complainant had sounded very distressed. He went to her home. She was very upset and her hands were shaking. He testified she told him they had been sitting on the couch, watching television, and the appellant rolled on top of her and she kept trying to push him away. He recalled she said the next thing she really knew was that the appellant had his pants down, proceeded “to go” and got up and wiped himself off with tissues and left.

“17. I was at her residence for less than an hour.

We just had general discussions and she provided me with a can of soft drink.

She advised me that she was looking for a partner to have more children and she wanted someone to live with fulltime.

I said to her “I don’t know you yet. I can only be a friend to you at the moment”. She did not seem happy with my response.

I then told her I had work the next day and I had to go as it was late.

We shook hands and we hugged and then I left.

I have not met with her again.

There was no other physical contact between us on the night.

I deny any allegation of rape or any sexual assault of her.”¹

The appellant’s written statement was presumably written at a time when he was unaware of the DNA evidence. In light of that evidence it was clearly problematic for him that his statement downplayed the occurrence of physical activity, making no reference to any sexual event culminating in him ejaculating.
The appellant did not give or call evidence at trial. Nor, despite the seriousness of the charge, did a barrister appear for him. Rather, the appellant’s solicitor, Mr Winning, acted as his advocate.
In Mr Winning’s cross-examination of the complainant he did not dispute her description of the appellant’s earlier physical acts upon her or her indications of resistance to them. However, Mr Winning put to the complainant that the appellant’s penis did not enter under her panties or penetrate her and, rather, the appellant had stood up from her, cupping the end of his penis, catching ejaculate. The complainant rejected that suggestion.
Despite the fact of penetration being put in issue, lesser alternative verdicts, such as attempted rape and sexual assault, were not left to the jury. Neither the prosecution nor the defence requested such verdicts be left.
The jury retired to consider its verdict at 11.17 am 14 March 2018. At 3.34 pm that day they sent a note asking:

“We’ve not made a decision and we need advice on how to proceed.”²

A short redirection, not the Black direction,³ was given in response.

At 4.04 pm that day the jury sent a note asking:

“Can the jury please receive the following assistance from the judge: (1) clarification of “a reasonable doubt”, its meaning and its application to this case and (2) can the judge please read the testimony of [the complainant] to the jury again and what is evidence in regards to this.”⁴

A redirection, including the reading of passages of the complainant’s testimony, was given in response.

At 5.52 pm that day the jury sent a note asking:

“Can we please ask the judge to go over reasonable doubt again, what it means in relation to (1) carnal knowledge; (2) consent.”⁵

A redirection was given in response.

The jury ceased deliberating at 6.06 pm that day and resumed deliberating on 16 March 2018 (the court could not sit on the intervening day).
At 10.36 am on 16 March 2018 the jury sent a note asking:

“Could you please explain what “reasonable doubt” means and give an example of this, please. Could you please play all the evidence-in-chief and cross-examination, that is, the recording of her entire evidence, please.”⁶

A redirection, including the playing of the Auscript audio recording of the complainant’s testimony, was given in response.

The jury returned its verdict of guilty at 2.11 pm that day.

Grounds

The appeal was filed out of time. The reasons for the delay were credibly explained and not challenged. Some of the appeal grounds are meritorious. It is therefore uncontroversial that the application for extension of time within which to appeal should be granted.
The grounds of appeal are:

“1. A miscarriage of justice was occasioned by the way in which the solicitor advocate conducted the defence case, namely:

(a)the failure of the defence solicitor to put the appellant’s instructions to the complainant; and

(b)the defence solicitor suggesting to the complainant that certain events occurred when the appellant’s instructions from the appellant about those events were not in accordance with the facts suggested to the complainant, contrary to the obligations of a lawyer representing a defendant and asking questions of a witness; and

(c)the defence solicitor suggesting “some impropriety on the part of police” in his closing address to the jury without instructions or reasonable grounds for a belief in the truth of that allegation, contrary to Rule 21.4 of the Australian Solicitors Conduct Rules.

A miscarriage of justice was occasioned by the advice of the solicitor advocate to the appellant not to give evidence.

The learned trial judge erred in his directions to the jury by not directing the jury about the use to be made of lies in accordance with the decision of The Queen v Edwards (1993) 178 CLR 193.

The learned trial judge erred in his directions to the jury about the relevance of the inadequacy of the police investigation to their consideration of whether the Crown case had been proved beyond reasonable doubt.

The learned trial judge erred in his directions to the jury about the obligation on the prosecution to prove beyond reasonable doubt all elements of the offence of rape, including that the complainant did not consent to penetration, even where the defence had been run on the basis that the penetration did not occur.

The learned trial judge erred in failing to direct the jury of the availability of the alternative verdict of sexual assault under section 352 of the Code which was open on the indictment by virtue of section 578 of the Code.”

The defence case

It is helpful to analyse the nature of the case before turning to the grounds.
The defence case was only the “defence case” to the extent it was put and argued. No evidence was actually adduced from the appellant at trial. Questions were asked of the complainant in cross-examination to test the reliability and plausibility of her account. For instance, she was asked why she was not more robust in resisting, asked how the appellant could have effected penetration with her legs firmly closed and asked why she later only said she thought she had been raped.
However, the cross-examination went further than merely testing the complainant’s evidence. It suggested penetration did not occur and that, rather, the appellant “pre-ejaculated” because of “sexualised behaviour”. As much is illustrated by this exchange in cross-examination of the complainant (including surrounding questions and answers for context):

“So you later said, “I was concerned he may have cum inside me.” He may have?---I wasn’t sure at the time.

Okay. Okay?---How can you be sure of that, I’m sorry?

Well, I’m suggesting to you, you were totally sure that he hadn’t cum inside you because “he stood up and ejaculated into his hand”?⁷---No, I don’t know that he stood up - - -

Yeah?--- - - - and then ejaculated.

Well, that’s your evidence?---It is not. I said that he was holding his penis and cupping the end.

Yes?---I did not state that he stood up and ejaculated into his hand.

Okay. Yes, you may - - - ?---That is not what I said.

Okay. So - - - ?--- He could have started ejaculating inside of me, pulled out and then grabbed - - -

He could have. But you don’t know, do you?---No, I don’t know.

No, okay. I’m suggesting to you that his penis hadn’t entered under your panties at all when he stood up – as he stood up, cupping the end of his penis - - - ?---Sir, that is - - -

- - - catching ejaculate?--- - - - wrong. That is co – incorrect.

Well, what was he doing, then?---He penetrated me.

Yeah. Well, I’m suggesting to you that he didn’t penetrate you?---Well, he did.

And that’s why you said on two separate occasions with two witnesses, “I think he raped me”?⁸---He did put - - -

Yes?--- - - - his penis inside me.

So - - - ?---He did hurt me.

So I’m suggesting to you - - - ?---I know what you’re suggesting and it is wrong.

- - - that he pre-ejaculated because of the sexualised behaviour. He jumped up. He said, “Is that the toilet?” and you nodded. He went to the toilet. You heard the tap going. That’s - - - ?---That’s incorrect.”⁹ (emphasis added)

This went beyond merely putting the prosecution to the proof by questions testing plausibility and reliability. It also went beyond exploring inferences or hypotheses potentially arising from the facts as advanced by the prosecution. It was likely done, at least in part, to comply with the rule in Browne v Dunn,¹⁰ allowing the complainant (and prosecution) an opportunity to respond to a contrary factual scenario put to the witness, and intended to be put to the jury, as the true facts. In any event, it is clear the manner of suggestion of the defence case positively represented that the facts being suggested in contradiction of the complainant were the true facts.
The defence lawyer’s mission is to do the lawyer’s professional best in the client’s interests with the facts as the client says they truly are, not with what the lawyer might like them to be to have a better chance of winning. The putting of what are positively represented to be the true facts to a witness must not involve the putting of facts conjured up by a defendant’s lawyer. Such conduct would be unethical, a breach of the Solicitors Conduct Rules¹¹ and potentially illegal.¹²
The defence case as put here could only have been properly put if that is what the appellant said happened in his instructions to his solicitor. It cannot be doubted Mr Winning understood this. Indeed, in his closing address to the jury he made a virtue of it, saying:

“Now, even though he hasn’t given evidence, you’ve heard from him. As I said, he’s entered pleas not guilty. But you’ve heard from him in this sense: under our adversarial criminal trial process, just as I receive instructions from the defendant, my learned friend receives instructions from her instructors, who are the police, generally. Not always but generally. Now, we don’t operate in a vacuum. I don’t put certain things to the complainant … just by plucking them off a tree and cherry picking little thought bubbles here and there. You might think that I’m putting to [the complainant] my instructions that I’m told by the defendant.”¹³ (emphasis added)

The defence case that the appellant eventually stood up from the complainant cupping his penis catching ejaculate, without having penetrated her, provided a means of explaining the DNA evidence without contesting much more than penetration. It was also aligned much more closely with the prosecution case than the written statement, taking issue with little else other than penetration. The degree of alignment was convenient in confining the contest but it involved a curious lack of dispute of some material parts of the complainant’s testimony.
Mr Winning’s cross-examination of the complainant, and the above quoted passage of his address, leaves no doubt that Mr Winning disputed, and wanted the Court to understand he disputed, those material parts of the complainant’s testimony which his client instructed were wrong. It is implicit in that approach that he did not dispute those material parts of the complainant’s testimony which his client’s instructions agreed with. Even if he was ignorant of alternative verdict provisions it could hardly have been thought by Mr Winning that his client’s sexual advances and the complainant’s resistance to them were immaterial in a rape trial. Yet Mr Winning skirted around the complainant’s positive evidence of lack of consent, merely suggesting to the complainant that she could have been more assertive in rebuffing the appellant’s conduct. These exchanges were typical:

“So you’re saying no to intercourse, but you – by presence you then acquiesce in further sexualised activity?---No, no.

Why didn’t you say, “Get your hands off me. You leave”. You didn’t say that, did you?---No, I didn’t say that, but - - -

No?--- - - - I said no.

…

So then we have a continuum of this business where he’s gone in your breasts and you take your hand off your breasts and when your hands are on your breasts he’s rubbing you up inside your right leg?---That’s correct.

And vice versa as your hands went to protect the various areas?---One hand.

Yeah, one hand. Okay. And you’re still not saying to him, “Take your hands off me. Go home”?---I’m saying no.

Okay?---No means no.

Okay. Well, what you did say – and this is according to your statement – “No, I don’t want to sleep with you. I don’t know you”?---That’s correct.

But you’re not saying, “Stop doing what you’re doing to me now”. Would you agree?---No.

No, well, what did you say?---I may have sa – I did not say that, but a reasonable person would understand that I – I mean, I was saying no.”¹⁴

Mr Winning did not suggest to the complainant that her testimony was incorrect in describing her outward indications to the appellant that she was not consenting. These included her saying “no”, pulling her top back up, pushing his roving hands away and repeatedly pushing the appellant away. These facts were clearly material to the element of consent. That Mr Winning did not dispute those facts in cross-examination suggests the appellant’s instructions agreed with them. If so, the surprising effect of those instructions would have been that the complainant was telling the truth about those outward indications that she was not consenting but that the appellant continued.
Further, of the various acts of physical molestation attributed to the appellant by the complainant’s testimony, none were suggested to be incorrect, save for the passage of the appellant’s penis past the complainant’s pants and into her vagina. That lack of challenge suggests the appellant’s agreement in his instructions that the undisputed acts occurred. If so, the surprising effect of those instructions would have been that, despite the complainant’s ongoing resistance, the appellant groped at her breasts, pulled down her top, felt up her legs, pressed his body onto hers, grappled at her panties, had his penis emerging or nearly emerging from his pants when his groin was near hers and only then did he stand up away from the complainant cupping ejaculate coming from his penis.
Looked at from the perspective of what was not contested, the defence case involved no material contest of facts which, seemingly, at least constituted sexual assault. Unless the specific object of the defence case was for the appellant to secure an acquittal of rape but be convicted of a lesser offence, this was a high risk defence case. That is because the absence of challenge to the earlier alleged touching and the complainant’s outward indications that she was not consenting heightened the prospect the jury would conclude that, if penetration did not occur, this was nonetheless a case of attempted rape or at least sexual assault.
This point is the focus of ground 6 of the appeal. It is conveniently dealt with forthwith.

Ground 6 – Failure to direct on alternative verdict of sexual assault

Ground 6 is that the learned trial judge erred in failing to direct the jury of the availability of the alternative verdict of sexual assault. In the course of argument, it was correctly pointed out an alternative verdict of attempted rape would also have been open. This does not alter the appellant’s fundamental complaint that he was deprived of a chance of acquittal of rape by reason of available lesser alternative verdicts not having been left to the jury.
There was no discussion at all before the court below of the availability, or putting, of alternative verdicts.
Pursuant to ss 583 and 578(1) Criminal Code (Qld) verdicts of guilt of attempted rape or of sexual assault may be returned as inherent alternative verdicts to a charge of rape. Each were logically open as alternatives here because of potential arguable doubt on the element of penetration in the charge of rape arising from the content of the complainant’s fresh complaint to her estranged husband. It will be recalled on his account she said the next thing she really knew after the appellant rolled on her was that he had his pants down, proceeded “to go” and got up and wiped himself off with tissues and left. Further, she told her estranged husband “I think I was raped”. Of course that evidence does not compel the inference the complainant then had a doubt about penetration not later expressed by her in her testimony at trial, but it is sufficient to raise that inference as an arguable possibility. Further, while the other aspects of the complainant’s description of the words and actions preceding penetration were not formally admitted, they were not materially disputed either. The real issues in the trial, as they emerged in cross-examination, did not suggest this was an “all or nothing” case. A reasonable doubt on the complainant’s reliability about penetration was not inevitably fatal to her reliability about the rest of the event.
Attempted rape was open because the jury might potentially have accepted the complainant’s account of the appellant non-consensually moving his penis near her vagina and accepted he intended to effect penetration but harboured a reasonable doubt as to whether he succeeded. Sexual assault was open because the jury might potentially have accepted the complainant’s account of the appellant moving his penis non-consensually near her vagina but harboured a reasonable doubt as to whether he was intending to or did effect penetration.
In James v The Queen¹⁵ the High Court rejected the adoption of a rule requiring that every viable alternative verdict be left in every case. The plurality there observed:

“The trial judge’s duty with respect to instruction on alternative verdicts is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court’s assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel. As earlier noted, not infrequently defence counsel will decide not to sully the defence case (that the only proper verdict is one of outright acquittal) by invitation to the jury to consider the accused’s guilt of a lesser offence. Such a forensic choice does not prevent counsel from submitting that the alternative verdict should nonetheless be left. Much less does it prevent counsel from making that submission where, as here, he or she is asked about the matter. It remains that the forensic choices of counsel are not determinative. The duty to secure a fair trial rests with the trial judge and on occasions its discharge will require that an alternative verdict is left despite defence counsel’s objection.”¹⁶ (emphasis added)

It is clear the object of the defence case as conducted by Mr Winning was to secure an outright acquittal, as distinct from securing an acquittal of rape but a conviction of a lesser offence. In light of the way the case was run it is difficult to see how that object could have been the product of a choice that can sensibly be described as “forensic”.
Indeed, it may not even have been a “choice”, inasmuch as Mr Winning was seemingly unaware of the potential availability of alternative verdicts. In his closing address to the jury he submitted:

“Just say for example you exact the defendant’s behaviour to close scrutiny and you say well, I don’t like some aspects of his conduct. I have a doubt about whether he has had penile intercourse of her. It does seem to me, though, he went a bit too far in a moral sense. He could have pulled up. And you think, well, he mightn’t be right for rape but there’s no lesser charge to convict him of to signal our disapproval of his behaviour, so we’ll convict him of rape, even though we have a doubt about whether he penetrated her vagina. No. No, members of the jury.

See, the Crown brings the charge, they have to prove the charge. They’ve chosen the high threshold charge of rape. So they’re – they carry the burden of proving beyond reasonable doubt the charge of rape. They’re not alleging sexual assault. They’re not alleging anything lesser than rape. They are alleging rape. So it’s all or nothing. There’s no natural alternative to the charge as it appears on this indictment.”¹⁷ (emphasis added)

Mr Winning testified before this Court that at the time he made the erroneous submission highlighted above he probably believed it was correct and did not turn his mind to an alternative charge at that time.¹⁸ Presumably Mr Winning did not realise there were alternative verdicts available at any earlier stage of his role in the case either. If he had, he would hardly have forgotten such important legal information by the time of addresses. If he had, he would inevitably have discussed its significant impact on his client’s prospects of an outright acquittal with his client. Indeed, he would likely have discussed the advantage to his client of offering to plead guilty to a lesser charge like sexual assault. There is no evidence he had any such discussions with his client.
Even if the defence had made a forensic choice in not inviting the putting of the alternative verdicts such a choice was not determinative and, as was explained in James v The Queen, “the real issues in the trial” are also relevant to an assessment of what justice required. The conduct of the defence case did not involve an outright denial of sexual activity. It made penetration the real issue, while avoiding material challenge to other components of the complainant’s account. This meant the appellant’s guilt of an alternative, less serious sex offence became a real legal issue in the trial as litigated, even if no one seems to have realised it.
The conduct of the defence case made it easier, by reason of what was not disputed, for the jury to reason the appellant was at least guilty of some non-penetrative sexual offending and thus harder for the jury to accept the appellant should escape punishment. It was a dynamic which made acquittal of rape a less attractive option for the jury than it would have been had the lesser alternative verdicts also been put. This jeopardised one objective of the interests of justice, identified as follows by Lord Bingham in R v Coutts:¹⁹

“The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged.”

The appellant’s best chance of acquittal of rape on the case as litigated was that the jury would be satisfied he should be convicted for sexual offending not involving penetration. The failure to leave the alternative lesser verdicts to the jury deprived the appellant of what was, on the case as litigated, his most obvious potential pathway to a chance of acquittal of rape.
The fair trial of the appellant required that the alternative verdicts be left to the jury. The learned trial judge erred in not leaving them, thus depriving the appellant of a chance of acquittal which was reasonably open. It is not submitted that such an error can be cured by the proviso. The success of this ground means the conviction should be quashed and a re-trial ordered.
It would be convenient in light of that outcome to avoid determination of the other grounds, particularly a ground as troubling as ground 1(a) and (b). However, this is an intermediate Court of Appeal and it cannot be assumed the determination of ground 6 is inviolate.

Ground 1(a) and (b) – Defence case contrary to instructions

Ground 1(a) and (b) can be considered as one. It complains the facts as put to the complainant by Mr Winning were not the facts as instructed by the appellant, thus occasioning a miscarriage of justice.

Onus and standard of proof

The appellant carries the onus of establishing his ground and thus the onus of proving the allegation of fact upon which it relies.
As to the standard of proof, it is to be appreciated the Court is not here concerned with a complaint of miscarriage of justice by reason of counsel’s forensic decision-making in the conduct of the trial. An appellant advancing that form of complaint is said to carry a heavy burden by reason of the wide control conferred on counsel in acting as a party’s agent.²⁰ The present complaint does not go to a matter of forensic judgment. As earlier explained, Mr Winning went beyond testing scenarios with the complainant. He put facts to the complainant in a way which represented them as true facts. He could only have done so if he held instructions from the appellant that they were the true facts. The appellant alleges Mr Winning did not hold such instructions. In such circumstances it should be for the appellant to prove that allegation on the balance of probabilities.²¹

Summary

The appellant alleged he told Mr Winning in their initial conference(s) that little of physical significance occurred between the appellant and the complainant. He explained to Mr Winning that his spermatozoa was detected because he went alone to the complainant’s toilet where he masturbated and ejaculated onto a tissue he put in a bin before departing. He alleged Mr Winning rejected this as unbelievable and that the defence case as later put at trial was a scenario Mr Winning came up with to defend him. Mr Winning agreed the appellant’s instructions in their initial conferencing was as alleged by the appellant and that he was critical of them. He claimed he invited the appellant to reflect on that account and had secured different factual instructions by the time of trial. The key issue is whether he really did secure different instructions.
The Court granted leave for the adducing of evidence. The appellant and Mr Winning each provided affidavits and were cross-examined.

Appellant’s evidence

Dealing firstly with the evidence of the appellant, he deposed to having had a couple of brief meetings with Mr Winning, culminating in Mr Winning being retained. Those meetings included some explanation of the trial process but no discussion of the details of the case, with Mr Winning indicating he needed more time to read the brief of evidence. The appellant deposed they had a more substantive conference a few weeks after Christmas 2017. He deposed of that conference and subsequent events:

“14. Mr Winning took me through the complainant’s statement and the messages between myself and the complainant. He asked me questions about the messages. He asked me why I said sorry before saying that I did nothing.

Mr Winning advised me that an issue for trial was my signed statement prepared by Mr Grant. He asked me why I said there was no physical contact. I told Mr Winning that I answered Mr Grant’s questions, that there was no physical contact, no sex and no rape. Mr Grant then said sign here. He then sent the statement to police. I answered all of the questions as Mr Grant asked them. I told Mr Winning that I signed the statement because Mr Grant was a lawyer and advised me to. I told Mr Winning that I was referred to him by a friend and I did not know whether to give a statement or not, because I have no experience with court matters.

When I spoke with Mr Winning in this conference, I denied the allegations of rape in the complainant’s statement. I never told Mr Winning that I was trying to have sex with her or that I had touched her in any sexual way. Mr Winning then asked me how my semen got there, he remarked that there must have been something. I said that I could explain everything. Mr Winning asked “Can you tell me what happened.”

I told Mr Winning in that conference that:

I went to the complainant’s house. ...

I told him that we sat next to each other on the couch. I told Mr Winning that the only contact was that I put my arm around her shoulders (across the back of the couch) and I gave her a kiss on the cheek. I was only trying to kiss her on the cheek, not on the lips. She was resting her head on my shoulder at the time and she seemed happy.

We spoke about the father of her child … She went outside and had a smoke. I followed her outside. We talked … We then went back inside and talked …

She kept getting messages on her iPad and I thought that she was chatting with people on her iPad.

I went to the toilet about just before the end of the night. While I was in the toilet, I masturbated into a tissue. It only took a very short time. I ejaculated into a tissue but there was no bin in the bathroom. I came out and asked her where is the bin.

She laughed at me and pointed me to the bin. I think she worked out what I had done.

I said I had to go because I have work in the morning … we discussed possibly meeting for dinner.

I hugged her and left. I tried to kiss her on the cheek but she did not seem interested. …

I told Mr Winning that I never tried to grab her hand.

At no time did I ever tell Mr Winning that I tried to have sex with the complainant.

When I told Mr Winning about the bathroom, he said “Don’t tell me bullshit.” …

Mr Winning calmed down and said that I had a good case because the DNA evidence indicated that there was only one contributor.

Mr Winning said to me words to the effect of: “Give me a couple of days. Let me think about it. I have to find a good argument for when we go to trial with a Judge and Jury.” …

… He told me that I could not give evidence because I get too excited. That I would be too excited in front of the jury. He said not to worry, that he would talk on my behalf. …

Mr Winning said that he needed to think about it and that after 30 years’ experience, he knows what he is doing. …

Mr Winning then contacted me about two (2) months later and told me that my trial was starting in two weeks. He also requested that I pay the rest of my fees.

We had a conference a couple of days before the trial. Mr Winning asked me for more money. At the end of this conference, Mr Winning held up my statement taken by Grant and Simpson Lawyers and said that I shouldn’t have signed this stupid statement. …

…I told Mr Winning that I had told Mr Grant everything, even about the masturbation in the bathroom. Mr Grant said that he was not going to include that in the statement because they would use it against me. …

… I told Mr Winning that I explained everything to Mr Grant about the bathroom. Mr Winning asked me, but why sign the statement? I told him because I never had anything to do with court. …

On the first day of trial, we met at Mr Winning’s office. He told me to forget about the masturbation, no one can believe that. He advised me that he knew how to run the case. That he knew what he was doing. He told me that I didn’t have to worry about anything.

I did not sign any instructions for Mr Winning. …

Mr Winning never told me what he was going to say to the complainant in the trial. …

I never confronted Mr Winning about what he said to the complainant in cross-examination. During the cross-examination, I thought I would get in trouble if I said anything. I trusted him because he said he had 30 years experience.

I did not have any other conferences with Mr Winning during the trial. …

I never gave Mr Winning oral or written permission to put a false account to the complainant, that I had taken part in some sexual conduct with the complainant. …”

In his testimony before this Court the appellant remained emphatic he had not instructed Mr Winning that events occurred as Mr Winning had put to the complainant.
There was particular focus in cross-examination on inconsistencies as between the appellant’s written statement taken by his first solicitor Mr Grant and the appellant’s subsequent accounts. Neither party in this appeal adduced evidence from Mr Grant.
In the appellant’s written statement there was no reference at all to the appellant attending the toilet, masturbating and ejaculating, as he later deposed to telling Mr Winning. The appellant deposed he had in fact mentioned that event to Mr Grant but Mr Grant said he was not going to include it in the statement because of the risk it would be used against the appellant. In the face of such information it would have been obvious to any solicitor that much greater risk lay in the omission of the information and the omission later being used against the appellant. The uneventful evening described in the written statement is not an easy fit with the appellant ejaculating at the premises. If the appellant had mentioned that he ejaculated anywhere at a unit where it was alleged he committed rape, that would have given any solicitor serious cause to pause. It would likely have prompted advice against providing any statement to police, at least until more was known of the facts complained of. The inherently more likely reality is that the appellant did not disclose his account of masturbating and ejaculating at the toilet until a later stage, after the DNA evidence emerged.
The apparent implausibility of the appellant’s claim about Mr Grant is relevant to an assessment of the appellant’s general credibility, particularly given the present dispute turns on his claims about another solicitor. However, it is not quite as significant in the present context as may at first blush appear. That is because on Mr Winning’s own account, discussed below, the appellant claimed to Mr Winning well prior to trial that Mr Grant deliberately omitted reference in the written statement to the appellant masturbating and ejaculating in the toilet. This is a point of some subtlety. It means the claim about that omission was not a recent invention come up with to improve the appellant’s chances on appeal.
The appellant claimed in cross-examination that the only information left out of his written statement taken by Mr Grant was the fact he had gone to the toilet and masturbated.²² However, that statement only mentioned one occasion of contact, which was that he and the complainant hugged and shook hands immediately before he left. There was no mention of that departure contact also involving an attempted kiss as he deposed telling Mr Winning. Nor was there any mention of the earlier contact on the couch, which he deposed to telling Mr Winning, namely that he put his arm around her shoulders around the back of the couch and kissed her on the cheek. Given the appellant’s general theme of denial of sexually intimate contact with the complainant, these were hardly seismic inconsistencies, particularly from a witness whose first language is not English. When the appellant was pressed about these inconsistencies in cross-examination, he claimed he had told Mr Grant about the earlier contact on the couch and about the attempted kiss on departure. That claim, about a level of conversational detail it would be difficult to clearly recall, seemed more likely to be supposition than clear recollection.

“1. I am responding to an allegation of rape raised by the Police.”²⁴

Despite this, the appellant responded evasively when asked if he had known it was an important document, and unconvincingly in claiming he did not realise it would be given to the police.²⁵

The appellant’s credibility was least compelling when pressed about his failure to include the full facts in the written statement to Mr Grant. On the other hand, the appellant’s responses to questioning going to whether he eventually changed his instructions to Mr Winning were credible and exposed no concerning inconsistency or implausibility.
As cross-examination progressed it became obvious the appellant, who testified he had never been charged or in court before,²⁶ had been ignorant of legal process and genuinely trusted in Mr Winning’s expertise. His evidence on this aspect was also credible. These passages are illustrative:

“Mr Mansoori, do you accept at the trial, Mr Winning spoke for you?---Yes, he said - - -

He said you’re not going to give or call evidence?---He said, “No, don’t say anything. You don’t need to say anything at all. I will talk on behalf of you. Because, Mr Mansoori, you are too excited, and you don’t know how to explain the things to the jury. And - - -” …

And you took that advice and allowed Mr Winning to answer for you?---Yes, your Honour. I trusted him. Your Honour I trusted him the first day when – when I – when I contact him, and I said, “I need to see you.” When – when I – when Mr Grant, with brief of evidence, he send me to Mr Winning, because Mr Grant said, “I can take you to trial and represent you, but my barrister is expensive. …” He said, “Okay. If you’re looking for a cheap lawyer, he’s a good lawyer, and he can represent you as a barrister. Go to see Mr Winning.” Mr Grant give me the brief of evidence. He said, “He sees all you need … Go to see him, and I’m sure he will represent you. They call him Mr Winning all the time. And he’s a winner. That’s why they call him winning.” …”²⁷

“Mr Mansoori, you thought Mr Winning was doing a good job at your trial?---Your Honour, when he said, “After 30 years’ experience, he knows what he’s doing and he knows how to run the case”. I said, “Yes. Okay, Mr Winning.” That’s why I signed the contract for him – for him to go in and represent me. Because the first place, Mr Grant sent me to see him. I - - -

I understand that. Mr Mansoori, if you can focus on my question. When he was conducting the trial on your behalf, during the trial, you thought Mr Winning was doing a good job?---Yes. I trusted him, your Honour. I was thinking, he doing a good job, your Honour.”²⁸

Mr Winning’s conduct of the case as described by the appellant was, if it occurred, highly irregular by the standards of a lawyer. However, it is quite plausible the appellant did not realise that and simply acquiesced deferentially to Mr Winning’s conduct of the case.

Mr Winning’s evidence

Turning next to the evidence of Mr Winning, he deposed to having consulted with the appellant and the appellant subsequently furnishing him with the disclosed brief of evidence. This included the written statement by the appellant to his former solicitor, Mr Grant. Mr Winning deposed:

“6. The statement referred to … was exculpatory to the appellant in respect of the charge. However, the statement did not explain the presence of the appellant’s DNA on tissues found by police in a kitchen bin at the complainant’s residence. Nor did it provide a consistent context to the SMS exchange had between the appellant and the complainant the day after the alleged offence. Unfortunately, the statement did provide a sounding board to identify lies told by the appellant.

In taking instructions for trial, I pressed the appellant about police finding the tissue material in the kitchen bin. He responded by saying that he instructed Mr Grant that prior to leaving the complainant’s residence he went to the toilet and masturbated. He said he didn’t flush the tissues down the toilet bowl but said he walked to the kitchen and deposited them in the bin. He said that Mr Grant did not include these instructions in his statement of 21 January 2016.

I later pressed the appellant about the SMS exchange he had with the complainant on 28 October 2015 (the day after the alleged offence). I asked him what he was saying “sorry” for, bearing in mind the substance of his statement and his assertion that he went to the bathroom to masturbate. He provided me with no meaningful instructions on this matter.

I told the appellant that he needed to reflect on the matters raised in paragraph [6] [7] [8] herein. I advised him that we would discuss those matters in a later conference.”

The common ground between the appellant and Mr Winning as to what the appellant’s instructions were in their early conference(s) (“the initial instructions to Mr Winning”) is an important consideration in the present analysis. The initial instructions to Mr Winning were very different from the defence case at trial. They described ejaculation at the toilet, whereas it was put to the complainant the appellant ejaculated when near her at the couch in the lounge room. According to the initial instructions to Mr Winning the appellant’s only touching of the complainant on the couch was to put his arm around her shoulders and kiss her on the cheek. Yet, in cross-examination of the complainant, Mr Winning did not dispute her allegations of the appellant’s physical sexual advances upon her on the couch. Since it is not in dispute the initial instructions to Mr Winning were given, there would have to have been an extreme turnaround in the appellant’s instructions as to what the true facts were, in order for the defence case to be put as it was. It represented a far greater departure from the written statement to Mr Grant than the appellant’s initial instructions to Mr Winning did.
This is not to say such an extreme turnaround could not have occurred, but it informs an assessment of the plausibility of Mr Winning’s account of how very easily it supposedly came to pass.
Mr Winning’s affidavit continued:

“10. At a pretrial conference with the appellant I took a different tack. I asked the appellant if his penis penetrated the complainant’s vagina. He said it did not. I asked him what caused him to be sexually aroused to the point of ejaculation. He made no mention of ejaculation by masturbation but responded by saying what happened on the lounge chair caused him to be sexually aroused. He spoke of having his arm around the complainant’s shoulders and trying to kiss her. He said he kissed her on the cheek. He agreed that there was a bit of banter about going to her bedroom. He agreed however, that the complainant made it clear that no sexual intercourse would take place between them on that evening. The appellant instructed that whilst the complainant seemed to be unwilling to have sexual intercourse with him, she offered no resistance to his sexual advances made to her on the lounge chair. He pointed out that she was laughing as he was trying to fondle her breasts. He was unsure whether his penis was inside or outside his pants prior to ejaculation. He agreed that he caught his ejaculate in his cupped hand prior to going to the bathroom. He said he used the tap and tissues to clean his hands. He said he couldn’t see a bin in the bathroom so he walked to the kitchen to deposit the tissues in the bin. He further instructed that the complainant remained seated on the couch when he was moving between the bathroom and the kitchen. The appellant did not identify the precise sexual acts that took place on the lounge but offered general agreement to what was claimed by the complainant in her statement.

It was on the basis of the instructions adverted to in paragraph [10] that I conducted the appellant’s trial.”

That account is surprising for what is left unsaid. Why, for instance, would the conference not have begun with Mr Winning asking whether the appellant had reflected on the issues Mr Winning had, on his account, asked the appellant to reflect on at the end of their last conference? Why did Mr Winning not ask whether that reflection had caused the appellant to recall any events differently? Why would he lurch directly to taking a “different tack” without such inquiry of his client?
It is implausible that such a fundamental shift in instructions happened without more being asked and said about the detail of this very different new account. Where, for instance, was the ascertaining of the detail of what the appellant asserted was physically occurring between the appellant and complainant immediately before he ejaculated? Mr Winning could hardly have thought the appellant, a mature man, was a spontaneous ejaculator. How was the appellant’s penis positioned and moving vis-a-vis the complainant to have caused the physical stimulation prompting ejaculation? In what ways was his description of that consistent or inconsistent with the complainant’s description?
Even Mr Winning’s recounting of the appellant allegedly instructing he ejaculated near the complainant is obscure. Of that revelatory development Mr Winning deposed of the appellant, “He agreed that he caught his ejaculate in his cupped hand prior to going to the bathroom”. What was said to prompt the appellant to have “agreed” to this occurrence rather than himself announcing that it occurred? It is not suggested on the material before this Court that the complainant said it happened that way in her statement. Indeed, her testimony at trial emphasised she had not said such a thing.²⁹
These oddities are all the more concerning in the extraordinary absence of any contemporaneous record of the appellant’s instructions.
Mr Winning’s affidavit did not annex, and was silent as to whether he took, signed instructions or indeed any form of written record of the appellant’s instructions. It did not help his credibility that he avoided addressing the topic in his affidavit. He would have well known the importance this Court gives to such records in an appeal like this.
The appellant’s present solicitors provided a disclosure request and authority to Mr Winning, requesting his instructions and conference notes. In response, Mr Winning provided six pages of loose-leaf, unpaginated and undated handwritten notes by him. The notes recorded information that had obviously been recounted to Mr Winning by the appellant at an early stage. That information included the appellant’s antecedents. It included some information about the appellant’s interaction with the complainant on the night in question but most of that related to the conversation between them. The only noted reference to the physical aspects of what did or did not occur was that the appellant and complainant sat in a three-seater lounge, one seat apart, and that there was a TV show on. The notes recorded a need to obtain the file from the appellant’s former solicitor Mr Grant. They recorded nothing of the appellant’s instructions as to the alleged offence.

“Now, is it correct that you did take notes during the trial but the notes that were sent to the instructing solicitors are the only instruction from the client? Is that correct?---No. Not really. I – I use a trial book and I had some notes recorded in that book. That’s – it’s a Spirax book. I use it for court work. And what I usually do is tear out the notes which are relative to a particular file and deposit those on the file at the completion of the matter. For some reason I haven’t done so in this instance. …

[T]he Spirax notebook, that – the notes contained in that were from day 1 of the trial onwards?---Yes. Jury details, times, things of that nature. Mechanical matters relating to the trial, plus brief – brief notations of the instructions. But I do point out the instructions were in very short compass. We’re talking about a very brief incident on a couch. A contentious incident. And the notes were quite brief in compass.

Okay. So the notes that you’re referring to, the only other notes that exist – or did exist were made - - -?---Yes.

- - - from day 1 of trial onwards?---Yes. That’s correct. Yes.”³¹

A number of points follow from the above exchange. Firstly, apart from the above discussed notes, the only other notes that were made were notes made in a Spirax book, which notes have not been located by Mr Winning for production in this appeal. Secondly, those notes would only have included brief notations of the instructions of the appellant. Thirdly, those brief notations were only recorded from day 1 of the trial.
It is surprising those notes of the appellant’s instructions cannot be found by Mr Winning. Moreover, it is difficult to believe there would not have been some other written record of the appellant’s instructions taken before day 1 of the trial, particularly bearing in mind the seriousness of the proceeding.
It is also difficult to believe the notes of the appellant’s instructions would only have been brief. It would not simply have been a matter of noting that the appellant ejaculated prematurely and did not effect penetration. The appellant’s instructions about what occurred between him and the complainant up to the point of ejaculation and the precise detail of their respective physical movements shortly preceding ejaculation plainly mattered. So too did the detail of why the appellant had lied in his written statement to the police, including about the absence of any sexual intimacy. It is unlikely such instructions and detail would have been brief.
It is also difficult to believe it was thought adequate to merely make brief notations of instructions rather than taking a set of signed instructions from the client. Taking signed instructions from a client, preferably in the form of a signed statement, is prudent in most litigation and notoriously so in serious cases in the criminal jurisdiction. Such a course is integral to the professional preparation of the case (a case in which the client is a potential witness) and carries the advantage, very well known to lawyers, of protecting themselves against false allegations by disgruntled clients. It was an especially obvious course to take here in light of the background that the instructions for trial were so different from the appellant’s initial instructions to Mr Winning, as well as from the appellant’s earlier signed written statement to Mr Grant.
Mr Winning was unconvincing in his downplaying of his omission to have the appellant sign some form of trial instructions, testifying:

“That was probably an omission on my part. I considered that his instructions were very uncomplicated and very brief, and I didn’t have him sign off on them.”³²

The absence of signed instructions is extraordinary if Mr Winning is telling the truth but unremarkable, indeed to be expected, if the appellant is telling the truth.

It emerged in cross-examination that, according to Mr Winning, the pretrial conference to which he referred in paragraph 10 of his affidavit occurred “a day or so prior to … the commencement of the trial”.³³ According to his earlier testimony, the only notes he made other than the abovementioned handwritten notes were notes made “from day 1 of the trial” onwards. If he did make notes of the conference a day or so before trial then his earlier testimony, on a subject of obvious importance, was wrong. If he did not, then such an omission was extraordinary given the central importance of those instructions to the conduct of a trial of his client on a charge as serious as rape. When asked later in cross-examination whether he took any notes of the conference referred to in paragraph 10 of his affidavit, his response included:

“Well, I took him through the complainant’s statement, and as I say there, he accepted those propositions. Though in very short compass, I would have made a note in my trial book … but very brief instructions.”³⁴

Mr Winning went on to suggest the cross-examiner was being too technical in pointing out that response contradicted his earlier evidence that he did not make notes in his trial book until from day 1 of the trial. He asserted, “I may well have made some notations in there prior to the trial”.³⁵ The inconsistency between the earlier and latter phases of his cross-examination before this Court, on an issue of such importance, further dented Mr Winning’s credibility.
Towards the end of cross-examination of Mr Winning this exchanged occurred:

“When you gave your affidavit, I take it that you gave careful thought to this affidavit and included everything in it that was relevant to this matter?---Mr Power, I didn’t allocate a day to be – I did the affidavit in about 10 minutes.

All right. You didn’t think it was worth more than 10 minutes of your time to prepare this affidavit?---Well, I think it’s a very concise affidavit, Mr Power.

Do you agree that - - -?--- Where do you think it’s deficient?

Well, you did not mention the Spirax notebook in this affidavit, did you?---I think that level of detail is quite minute, Mr Power.”³⁶

It appeared Mr Winning was deflecting rather than providing a positive answer when challenged as to whether he thought it was worth more than 10 minutes of his time to prepare an affidavit of this kind. The notion that he would think the detail of him making notes in his notebook was a “quite minute” matter is unbelievable. Mr Winning would well have appreciated his inability in this appeal to produce any record at all of his instructions on substantive issues in the case would be a major concern, needing explanation.
It is instructive to pull back a moment and recall what can be deduced from Mr Winning’s cross-examination of the complainant. As earlier explained, if Mr Winning did actually hold instructions consistent with the material parts of the complainant’s testimony which were not disputed, the effect of those instructions would have to have been:

(a)the complainant gave a variety of outward indications she was not consenting, saying “no”, pulling her top back up, pushing the appellant’s roving hands away and repeatedly pushing the appellant away; and

(b)despite the complainant’s ongoing resistance, the appellant groped at her breasts, pulled down her top, felt up her legs, pressed his body onto hers, grappled at her panties, had his penis emerging from his pants when his groin was near hers and only then did he stand up away from the complainant, cupping ejaculate coming from his penis.

Having heard the appellant’s evidence it is difficult to believe he would ever have been able to bring himself to admit to so much of what was alleged against him. Ironically the alignment of the defence case with so much of the complainant’s evidence would usually be a feature telling against its concoction by a lawyer, for a lawyer would realise the risk of it resulting in conviction for at least sexual assault. However, Mr Winning was unaware of that legal risk. In his ignorance he was unlikely to have been as concerned as his client would have been by the opprobrium associated with conceding apparent acts of sexual assault.
The implausibility of the appellant ever instructing he would have continued his sexual advance in the face of the complainant’s resistance appears to have infected Mr Winning’s own recollection. In paragraph 10 of Mr Winning’s affidavit, quoted above, he deposed:

“The appellant instructed that whilst the complainant seemed to be unwilling to have sexual intercourse with him, she offered no resistance to his sexual advances made to her on the lounge chair.” (emphasis added)

This is at odds with Mr Winning’s absence of challenge at trial to the complainant’s specific evidence of her resistance. Such a mistake is difficult to fathom. In cross-examination Mr Winning explained of the above quoted sentence from paragraph 10 of his affidavit:

“[T]hat’s not entirely correct. What he seemed to be saying was she offered minor or token resistance … [T]hose weren’t his words, but that’s my understanding of what he was telling me.”³⁷

The problem with that evidence is that, in its attempt to explain away a glaring inconsistency on an important issue, it throws up more implausibility. If the appellant “seemed to be saying” the complainant “offered token or minor resistance” it is difficult to believe Mr Winning would not have proceeded to clarify that with the appellant. What were these acts of “minor or token resistance”? This was very important factual detail in a rape case. It was plainly relevant to consent and, quite possibly, a potential defence of mistake of fact. If Mr Winning was not running his own idea of a convenient defence case and was wanting to act on his client’s actual instructions, it is inconceivable that he would not have ascertained from the appellant the detail of what it was that the appellant “seemed” to be saying? This is another feature of the case demonstrating how unlikely it is that there really was a change of instructions of the kind asserted by Mr Winning.

Conclusion

There is no satisfactory innocuous explanation for the coincidence of the significant problems and implausibility plaguing Mr Winning’s evidence. Considered in isolation some of it might be symptomatic of laxity and ignorance of proper professional standards. However, it is telling that Mr Winning’s evidence involved a coalescence of problems and implausibility of the very kind likely to be present if the appellant’s complaint is true. He was not a credible witness. His account of the appellant’s significant shift in instructions does not withstand scrutiny and should be rejected.
Having regard to the whole of the evidence, and even allowing for credibility concerns about some aspects of the appellant’s evidence, the appellant’s evidence that he did not change his initial instructions to Mr Winning should be accepted. The appellant has proved on the balance of probabilities that the facts of the defence case as put to the complainant by Mr Winning were not the facts as the appellant instructed them to be.
It is not to the point that the appellant did not speak out once that became apparent to the appellant. The appellant’s deferential acquiescence to his lawyer’s conduct and control of the case cannot logically serve as a substitute for the existence of client instruction about the facts.
It was a qualifying ingredient of Mr Winning’s role as the appellant’s agent and his entitlement as a legal practitioner to appear in court for the appellant, that any assertion by him about the true facts was consistent with his client’s instructions about the facts. That ingredient was missing. Its absence inevitably meant the appellant’s true position was misrepresented, depriving both him and the prosecution of the trial according to law to which they were entitled. It was properly conceded that, if established, such a fundamental defect left no room for the application of the proviso.
The success of ground 1(a) and (b) thus provides a further reason why the conviction must be quashed and a re-trial ordered.
Before leaving this ground it is appropriate to acknowledge there are well recognised difficulties inherent in using a criminal appeal to assess the performance of trial counsel and Courts of Appeal seek to avoid such assessments unless it is unavoidable.³⁸ The allegation of fact here complained of made it necessary for this Court to make a finding on the evidence before it. While that required consideration of evidence about Mr Winning’s conduct it did not make this proceeding an inquiry. The proceeding has been an appeal in an adversarial setting to which Mr Winning was not a party. He was only a witness. Consequently, he had no right to make submissions, nor did he have a say in whether evidence from other sources which may have been relevant could or should be led.

Ground 1(c) – Alleging police impropriety without reasonable grounds

Ground 1(c) complains Mr Winning alleged “some impropriety on the part of police” in his closing address to the jury without instructions or reasonable grounds.
This ground was sourced from the learned trial judge’s choice of words in referring to the allegation when summing up. What matters is what Mr Winning said in his closing address.
The transcript of Mr Winning’s address reveals he described the police as having been incompetent³⁹ and asserted it was “inherently improbable and idiotic that a trained police officer cannot get on the phone and muster up a doctor in the early hours of the morning to see a rape victim, in a city of 70,000 people – a major provincial city like Rockhampton”.⁴⁰ He also posited the rhetorical question, “Who’s lying?”, in reference to the police and the inference that a police officer must have given the direction to destroy the clothing yet none of the police witnesses admitted having given such a direction.⁴¹ It is these submissions the learned trial judge must have been referring to as alleging police impropriety.
It is difficult to understand how a competent investigation could not have pressed for and ensured the prompt examination and testing of the complainant in a city the size of Rockhampton. It is also difficult to understand how a competent investigation could have failed to arrange for the examination of the complainant’s clothes and instead destroyed them. It was a sustainable inference that these shortcomings involved incompetence and that there may have been a lack of candour about how the clothing came to be destroyed. The latter inference ranged unnecessarily beyond the inference of incompetence to an inference of dishonesty but only in the sense there may have been a lack of honesty in admitting responsibility for incompetence. The raising of such inferences was obviously a rhetorical device, calculated at highlighting the shortcomings in the police investigations. As much would have been plain to the jury. Applying the test applied in another of Mr Winning’s former cases, R v Thomas,⁴² the submissions were not of a character likely to distract the jury from its task of properly and dispassionately examining the issues in the case.
The appellant deposed he did not authorise Mr Winning to allege the police acted wrongly. No such authority was needed. Deciding whether to invite inferences, including non-essential inferences, as a persuasive device is a matter of forensic judgment. It falls well within what Gleeson CJ described in as counsel’s “wide discretion in deciding … what lines of argument to pursue”.

Ground 2 – Miscarriage because of advice not to give evidence

Ground 2 alleges a miscarriage of justice was occasioned by the advice of the solicitor advocate to the appellant not to give evidence.
Mr Winning advised the appellant against giving evidence. The appellant conceded he trusted in Mr Winning’s advice not to give evidence. That does not suggest a miscarriage of justice.
The real complaint is that the advice was erroneously premised on the facts of the defence case as put by Mr Winning, facts which the appellant complains were contrary to his instructions. This ground therefore complains of an incidental consequence of the appellant having been deprived of a trial according to law in the manner found above in respect of ground 1(a) and (b). It requires no further consideration as a separate ground.

Ground 3 – Lies direction

Ground 3 complains the learned trial judge erred in his directions to the jury by not directing the jury about the use to be made of lies in accordance with the decision of Edwards v The Queen.⁴⁵
The prosecution did not seek an Edwards direction, contending only that the appellant’s failure to mention the circumstances under which he must have ejaculated was a lie by omission going to the credibility of his account. The appellant’s solicitor advocate sought no more than the standard direction about lies going to credit.⁴⁶
The direction in due course given to the jury was as follows:

“You have heard submission[s] from the Prosecution which attributes lies to the defendant, and you will make up your own mind about whether he was telling lies and, if so, whether he was doing that deliberately. If you conclude that the defendant deliberately told lies – and we are now referring to the observations in the statement which I will expand upon when I refresh your memory on the submissions made by the Crown. If you conclude that the defendant deliberately told lies in his statement, well, that is relevant only to his credibility. It is for you to decide whether those suggested lies affect his credibility. However, you should bear in mind this warning: do not follow a process of reasoning to the effect that just because a person is shown to have lied about something, that is evidence of guilt.

The mere fact that the defendant tells a lie is not of itself evidence of guilt. A defendant may lie for many reasons. For example, either to bolster a true defence, to conceal disgraceful conduct short of his commission of the offence, or perhaps out of panic or confusion. If you think there is some innocent explanation for his lies, then of course you should take no notice of them.”⁴⁷ (emphasis added)

The absence of mention in the appellant’s written statement of the fact of his ejaculation was arguably a lie by omission. It is difficult to see how it harmed the defendant’s position that it was left only as going to credit.
The appellant’s argument is that, as occurred in R v Sheppard,⁴⁸ the trial judge’s direction left open the possibility the jury could use the lie as evidence of consciousness of guilt without the accompanying protection of an Edwards direction.
That was not a sensible possibility here. It is true it was unnecessary for the prosecution to rely on the lie by omission to discredit the only account given by the appellant, namely his written statement. It was conceded at trial by Mr Winning that the written statement was not credible. Indeed, in his closing address, Mr Winning went so far as to acknowledge the assertion in the written statement that there had been no physical contact between the appellant and complainant other than that specified in the statement, was a lie.⁴⁹ However, allowing that the lack of credibility of the appellant’s written statement was obvious only serves to underscore the innocuous nature of the trial judge’s direction.
The appellant sought to enhance his argument by reference to the learned trial judge’s repetition, when summarising the parties’ arguments, of an erroneous submission by the Crown Prosecutor in closing addresses. His Honour said:

“The Crown also, coming back to the manner in which the case was run, submitted that you would of course find that the defence case has substantially changed, having regard to those other matters. They are all matters that the Crown says you can benchmark by reference to the statement and you can use to assess the credit of the things that have been put on the defence’s behalf.

The Crown says that if you accept the statement, then of course – as a lie that is – then you can use that to assess the credibility of the defence. Although, importantly, that does not permit you to jump to a conclusion of guilt. So it is important to emphasise that the Crown does not say just because the defendant has lied, that thereby lends you the capacity to jump to a conclusion of guilt. As I instructed you before, you cannot draw that conclusion.”⁵⁰ (emphasis added)

The prosecutor’s submission was misconceived. It wrongly urged an understanding that the lie or lies in the appellant’s written statement was relevant to the credibility of the defence case as put. Speaking of the credibility of the defence case as put incorrectly elevated it to a status undeservedly akin to evidence. It is unlikely the jury would have understood it had such status, for they were instructed elsewhere in the summing up that the mere putting of allegations did not constitute evidence. While it would have been preferable that the learned trial judge corrected rather than repeated the prosecutor’s misconceived submission, it only had the harmless tendency of allowing the jury to not accord credibility to non-existent evidence. It may arguably also have been seen as endorsing reasoning that the defence arguments in favour of acquittal lacked force by reason of the falsity of the written statement. However, the present ground is not directed at that potential forensic mischief. It goes to the risk the falsity of the written statement could have been erroneously used as evidence of guilt.
The repetition of the prosecutor’s erroneous submission was not susceptible to the interpretation that, in light of the defence case as put, the lie or lies in the written statement supported a conclusion of guilt. Indeed, the primary direction, as the jury were reminded in the direction summarising the prosecutor’s submission, emphasised the fact the appellant had lied could not be used as evidence of guilt.
Ground 3 is without substance.

Ground 4 – Error in direction re relevance of inadequacy of police investigation

In the course of part of the summing-up summarising the Crown’s submissions, the learned trial judge said:

“Now, the Crown also reminded you of the poor investigation and there was no question in this case that the police force let the defendant – the complainant down. The defendant also makes complaints about the police force from its perspective but the complainant in particular relies upon the police to do its job properly and in this instance objectively, only it has fallen below standard.

There is complaint about the failure to analyse the clothes which we heard were destroyed by police. There was the failure by the … police … to make arrangements for the complainant to be examined. They simply appear to have taken “no” from the medical examiner on the night in question as a sufficient answer without perhaps making proper arrangements to have the complainant examined somewhere else if the local medical examiner was not available.

But the bottom line is this: all those matters cannot now invite you to engage in speculation about what any of that analysis may have demonstrated, but can I make this one observation in passing: ultimately, things like DNA analysis and other sorts of analysis are just investigative tools and no doubt they would be helpful to corroborate other evidence that may have been placed before you, but it is not essential that that evidence come before you.

… At the end of the day, even the evidence – even the presence of DNA material does not address the ultimate question. That is, whether or not there was penetration and whether or not there was consent. They are the questions that have to be resolved.

DNA might help prove that there was presence of the defendant at the scene, but it does not prove of itself anything beyond that and for that reason you should be cautious, in my instruction to you, on visiting too much blame on the complainant because of the manner in which the police failed in the performance of their duties.”⁵¹ (emphasis added)

Later in the summing-up the learned trial judge said:

“Now, complaints were also made by the defence of the police investigation and unquestionably, as I’ve already said, objectively the police investigation fell well below par. It was quite substandard and as the Crown has contended, you ought not take that matter against the complainant. The defence contends that by reason of this the prosecution case and the defendant suffers a gravity of unfairness. He submitted that the incompetence would affect your evaluation of the evidence and no doubt it will affect your evaluation of matters relevant to what was not done, but avoiding again the case of speculation.”⁵² (emphasis added)

The appellant complains the learned trial judge’s directions implicitly sanctioned the notion the complainant should not be blamed for the faults of the police, thus introducing an irrelevant and emotive consideration into the jury’s considerations. The learned trial judge’s use of language speaking of being cautious not to visit “too much blame on the complainant” because of the police failings was, in hindsight, infelicitous. No one had suggested any notion that blame ought be visited on the complainant for police failings. The notion was irrelevant. However, it was also inconsequential when considered in the broader context of what was said. The direction of concern immediately followed his Honour’s correct analysis of the reality that the jury could only act on such of the forensic evidence as was gathered. That analysis emphasised such evidence did not assist in the prosecution’s proof of the ultimate issues of penetration or consent.
The appellant also complains the learned trial judge’s directions should have explained the investigative deficiency was relevant for the jury to consider the hypothesis that ejaculate was deposited other than in consequence of sexual intercourse having occurred. No such direction or redirection was sought.
The reality in play here was that while each legal representative evidently tried in their addresses to deal with the forensic evidence and lack of forensic evidence in a way favourable to their cause, the lack of forensic evidence (as a result of the so-called investigative deficiency) was an intractably neutral feature of the case. There was no obligation on the learned trial judge to suggest otherwise.
Ground 4 is without substance.

Ground 5 – Non-consideration of the element of lack of consent

Ground 5 relies upon what was said in the course of the learned trial judge’s response to the following jury request for redirection:

“Can we please ask the judge to go over reasonable doubt again, what it means in relation to (1) carnal knowledge; (2) consent?”⁵³

In the course of that redirection the learned trial judge said:

“So carnal knowledge is, as you know, sexual intercourse. The question is whether or not you have a doubt about whether sexual intercourse occurred. If you have no doubt that sexual – if you come to the basis you have no reasonable doubt about whether or not sexual intercourse occurred – that is, you have no reasonable doubt that sexual intercourse occurred – well, the next matter of consent won’t trouble you because the defence case has never been an absence of consent to sexual intercourse. The defence case has been there was no sexual intercourse or that the Crown hasn’t satisfied you that sexual intercourse took place. So that might help you in relation to that.

Obviously, if you come to the view that you cannot be satisfied beyond reasonable doubt that there was sexual intercourse, well, then you don’t need to go on and consider the issue of consent because you won’t be satisfied about the first element – that is, that sexual intercourse took place – because you must be satisfied that sexual – beyond reasonable doubt that sexual intercourse took place before you go on to consider the question of consent.

So, to a large extent, your deliberations should revolve very much around the question of whether or not you can be satisfied beyond a reasonable doubt that sexual intercourse took place. As I say, if you’re satisfied of that matter beyond reasonable doubt, the defence can’t cavil with the issue of consent because they haven’t run their case on that basis. They acknowledge that if you accept or if you find beyond reasonable doubt sexual intercourse occurred, well, then it’s accepted by the defence that there was no consent to that.”⁵⁴ (emphasis added)

The appellant submits such a direction had the effect of removing an element of the offence – absence of consent – from the jury’s consideration. The appellant contends it would automatically follow that a miscarriage of justice occurred.⁵⁵
There will often be cases in which the defence are in no position to either dispute or admit an element of the alleged offence. A quintessential example of such a case is a prosecution for rape where the defence case is that sexual intercourse did not occur at all. As a matter of logic, a denial of sexual intercourse precludes an admission that sexual intercourse occurred without consent. It may be that defence counsel briefed in such a case will submit little, if anything, to the jury about the element of consent, lest it undermine the force of a defence argument that sexual intercourse did not occur at all. It may even be that defence counsel acknowledges if the complainant’s account is accepted it is an account indicative of absence of consent. But such a forensic choice does not support an instruction to the jury that the conduct of the defence case should be construed as an admission the element of absence of consent has been proved. Nor does it remove the trial judge’s obligation to correctly instruct the jury of the need for the prosecution to prove that element beyond reasonable doubt.
In here directing the jury they did not need to be troubled in relation to consent his Honour was evidently trying to focus the jury upon the real issues as they had emerged by the end of closing addresses. During Mr Winning’s address, when urging that the complainant could have been more emphatic in demonstrating her lack of consent to the sexual touching of her, he submitted:

“I’m not talking about consent to sexual intercourse here, I’ve already conceded that there’s no consent to sexual intercourse. I’m talking about consent as to the making out, if you’d like, or the sexualised activity.”⁵⁶

That reference to his concession was seemingly a reference to an earlier submission in Mr Winning’s address that the jury would convict if they accepted “the complainant’s evidence beyond reasonable doubt that there was that there was penile intercourse”.⁵⁷ This was not an admission of fact. It was a submission made in the context of urging the possibility of ejaculation occurring without penetration as “a simple panacea for this case”,⁵⁸ as Mr Winning put it. It was part of an argument clearly calculated at urging a simple pathway to acquittal. Mr Winning’s submissions certainly made it easy for the jury to perform its task of deciding whether, if penetration occurred, it occurred without consent. But they did not have the effect of removing the need for the jury to perform that task.
The appellant contends the allegedly concerning components of the redirection had that erroneous effect. Those components are the parts highlighted above, in which the learned trial judge told the jury they would be untroubled by consent in light of the conduct and concessions of the defence case. A potential ambiguity in those parts, when they are considered in isolation, is whether they meant the jury did not need to decide the element of consent at all or merely meant the jury would find the task of making that decision an easy one.
There is no problem associated with the latter meaning. In light of the facts and issues which emerged in the trial, the jury’s acceptance that penetration occurred inevitably carried with it an acceptance of the part of the complainant’s testimony which was the core focus of the dispute at trial. No reason had emerged or been contended for at trial as to why, if the jury accepted the complainant’s testimony as to penetration beyond reasonable doubt, they would doubt her testimony that it occurred without consent. As much was pragmatically acknowledged by Mr Winning’s approach to his closing address. If the jury accepted the complainant’s testimony as to penetration beyond reasonable doubt, then of course the jury’s task of deciding the element of absence of consent became an undemanding one.
The contextual and temporal isolation of a redirection from the summing up requires that special care be exercised in answering a request for a redirection. In Quartermaine v The Queen⁵⁹ Mason and Wilson JJ explained:

“A misdirection at a stage when a jury has returned to seek an answer to a specific question will generally be a matter of grave import, requiring serious consideration in any appellate review, for the reason that being isolated from the charge itself it is likely to carry great weight with the jury.”⁶⁰

In his original charge to the jury the learned trial judge specifically explained the prosecution’s obligation to prove the elements of the offence beyond reasonable doubt and explained that one of the elements of the offence was that carnal knowledge occurred without the consent of the complainant. The allegedly concerning components of the redirection were certainly isolated from those original directions, but they were not isolated from a repetition of the above explanation. That is because his Honour effectively repeated his earlier explanation near the outset of the redirection, saying:

“It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence. And if you are left with any such reasonable doubt, then it is your duty to acquit …”⁶¹ (emphasis added)

After giving that direction his Honour’s redirection progressed to the topics of carnal knowledge and consent, including the allegedly concerning components dealing with consent.

That context is important. It demonstrates his Honour’s express injunction to the jury given in his summing-up, of the need for them to be satisfied that all the elements of the offence had been proved beyond reasonable doubt, was reiterated in the course of the redirection in question. The temporal and contextual proximity of that reiteration of the jury’s task to the allegedly concerning components of the redirection is determinative. It removes the potential for ambiguity alluded to above. It means the jury would have understood that, if satisfied beyond reasonable doubt of the element of penetration, the conduct and concessions of the defence case made it easier to decide – but did not remove their obligation to decide – whether the element of absence of consent had been proved beyond reasonable doubt.
There was no error. This ground must fail. The appeal must nonetheless be allowed in light of the appellant’s success on other grounds.

Orders

The orders should be:

Application for extension of time to appeal granted.

Appeal allowed.

The appellant’s conviction of rape be quashed.

The appellant be retried upon the indictment.

Footnotes

AR Vol 2 p 298. ↩
AR Vol 1 p 81 L35. ↩
See Black v The Queen (1993) 179 CLR 44. ↩
AR Vol 1 p 84 L1. ↩
AR Vol 1 p 100 L35. ↩
AR Vol 1 p 108 L5. ↩
It is unclear that inverted commas were appropriate in transcribing those words. There is no evidence, and it was not in terms suggested, they were words appearing in the complainant’s witness statement. Her subsequent rejection of the notion she used such words was not contradicted. ↩
This was apparently a reference to her firstly using those words when she spoke to her estranged husband and secondly telling police she had said that to her estranged husband – see AR Vol 2 p 155 L36, p 156 L12. ↩
AR Vol 2 p 174 L23 – p 175 L22. ↩
(1893) 6 R 67 (HL). ↩
See Australian Solicitors Conduct Rules rr 5, 8.1, 21.2, 24. ↩
See Criminal Code (Qld) s 140 Attempting to pervert justice. ↩

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