Steve v Regina

Crimes Act 1900, s 61I LEGISLATION CITED: Criminal Appeal Act 1912, ss 5, 6. Evidence Act 1995, ss 32, 33, 55, 97, 100, 110 Evidence Regulations 2005, cl 5

Ali v R [2005] HCA 8; (2005) 214 ALR 1 Chisari v R (No 2) [2006] NSWCCA 325 Mouroufas v R [2007] NSWCCA 58 Nudd v R [2006] HCA 9; 80 ALJR 614; 162 A Crim R 301 CASES CITED : R v Birks (1990) 19 NSWLR 677 R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44 R v Stalder [1981] NSWLR 2 Rolfe v Regina [2007] NSWCCA 155; (2007) 173 A Crim R 168 Seymour v Regina [2006] NSWCCA 206; 162 A Crim R 576 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

PARTIES: Michael John STEVE (Appellant) Regina (Respondent)

COUNSEL: M Ramage QC (Appellant) P Calvert (Crown)

SOLICITORS: Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/2917

BEAZLEY JA HISLOP J PRICE J

8 October 2008 Michael John STEVE v Regina Headnote

The appellant was convicted by a jury of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (maximum penalty 14 years imprisonment). The appellant was sentenced to a total of 3 years imprisonment, comprising a non-parole period of 2 years.

The appellant alleged there had been a miscarriage of justice, based on the failure of his solicitor to object to irrelevant and prejudicial evidence, tendency or coincidence evidence, and evidence of bad character, or seek directions from the trial judge in respect of this evidence. Further, the appellant alleged that the trial judge had failed to apply the mandatory provisions of the Evidence Act, s 137. He also alleged that his conviction was unsafe and unsatisfactory.

The incompetence of counsel at trial, of itself, will not attract appellate intervention. The question is whether there has been a miscarriage of justice: [39]-[58]. R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Ali v R [2005] HCA 8; (2005) 214 ALR 1; Nudd v R [2006] HCA 9; 80 ALJR 614; 162 A Crim R 301 (all applied); Seymour v Regina [2006] NSWCCA 206; 162 A Crim R 576; Mouroufas v R [2007] NSWCCA 58; Rolfe v Regina [2007] NSWCCA 155; (2007) 173 A Crim R 168 (all referred to).

The failure of counsel to object to irrelevant and prejudicial evidence, leaving the jury with evidence before them that the appellant was violent, sexually predatory and a child molester, amounted to a miscarriage of justice: [60]-[62], [64]-[69], [81]-[83]. TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Ali v R [2005] HCA 8; (2005) 214 ALR 1; Nudd v R [2006] HCA 9; 80 ALJR 614 (all applied).

The provisions of the Evidence Act, s 137 are mandatory. The trial judge had an obligation not to admit the evidence in respect of which there was a danger of unfair prejudice to the to the appellant, which outweighed its probative value: [60]-[62], [66]-[69], [82].

R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44 (applied).

The trial judge's wrongful admission of irrelevant and prejudicial evidence, and the failure to give appropriate directions to the jury, constituted a miscarriage of justice: [60]-[62], [66]-[69], [82], [83]. TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Ali v R [2005] HCA 8; (2005) 214 ALR 1; Nudd v R [2006] HCA 9; 80 ALJR 614 (all applied).

Due to the admission of prejudicial evidence, the accused lost a reasonable chance of acquittal. The verdict was thus unsafe and unsatisfactory: [86], [87].

The conviction was quashed and a new trial ordered: [87].

In the Court of CRIMINAL APPEAL CCA 2007/2917

BEAZLEY JA HISLOP J PRICE J

8 October 2008 Michael John STEVE v Regina Judgment 1 BEAZLEY JA: The appellant was convicted by a jury of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment. The appellant was sentenced to a total of 3 years imprisonment, comprising a non-parole period of 2 years, commencing 5 February 2007, the date the jury returned its verdict of guilty, and expiring on 4 February 2009. 2 The appellant appeals against his conviction on the basis that the trial miscarried and that the verdict was unsafe and unsatisfactory. These grounds were complementary and raised the following essential issues:

(A) Whether the trial miscarried, due to: 1. the incompetence of the appellant's legal representative at trial, in regards to his failure (i) to object to evidence that was irrelevant to the charge and prejudicial to the accused; (ii) to pursue an objection to the evidence of Senior Constable Harper; and (iii) to seek directions from the trial judge in respect of parts of this evidence, or alternatively, a discharge of the jury; 2. the failure of the trial judge to direct the jury to ignore evidence that was irrelevant to the charge and prejudicial to the accused; 3. the failure of the trial judge to give the jury an appropriate direction as to the use to which it could put evidence that, shortly after the incident, the appellant said he was going to Western Australia; 4. the wrongful admission by the trial judge of the evidence of Senior Constable Harper; 5. the failure of the trial judge to give proper directions to the jury in respect of parts of the transcript of the ERISP that should not have been given to them; and

(B) whether the conviction was unsafe and unsatisfactory, because irrelevant and prejudicial material had been admitted into evidence in circumstances where this was not a strong Crown case.

Brief summary of the facts 3 The complainant alleged she was sexually assaulted by the appellant in an apartment to which she had gone with the appellant and the appellant's friend, Steve Pettiona. The apartment was Mr Pettiona's residence. The three persons had a drink together in the lounge room. The complainant's evidence was that at one stage, she excused herself to go to the bathroom, but as she went to do so, the appellant forced her into a small bedroom, pushed her onto the bed and sexually assaulted her. 4 The complainant said she was able to remove herself from the incident by telling the appellant that she needed to go to the toilet. She said she left the bedroom and immediately left the apartment. She said the appellant chased her and grabbed her. She then saw a car coming along the street, which was being driven by the appellant's wife, and in which the complainant's daughter was a passenger. They stopped and the complainant's daughter encouraged her to get into the car with them. The complainant said that in response to a suggestion by the appellant's wife that the appellant had "put the hard word on her", she complained that the appellant had "done more than that", but did not otherwise specify the details of what had happened. 5 The appellant's wife then drove the complainant and her daughter to the home of another friend, Darlene Robertson. Contact was made with the complainant's brother, who came to Ms Robertson's and telephoned the police. 6 The appellant and his wife were friends of the complainant, as was Ms Robertson. The complainant had not previously met Mr Pettiona. 7 The appellant complains that irrelevant and prejudicial evidence was admitted at the trial due to the incompetence of his solicitor in failing to object to the admission of the evidence. He further complains that the trial judge then failed to give directions to the jury to ignore that evidence. He contends that he was thereby denied a fair trial. It followed, on his submission that there was a miscarriage of justice and the verdict was unsafe and unsatisfactory: see Criminal Appeal Act 1912, s 6.

Irrelevant and prejudicial evidence 8 The appellant identified the following evidence (being the emphasised portions of the material below) as being irrelevant and prejudicial.

(a)(i) 9 The complainant said that after she had left Mr Pettiona's unit, she had run about half a block, when the appellant had caught up with her and started walking her back towards the unit. At this point, the complainant saw a car which she noticed was being driven by the appellant's wife, Gail, in which the complainant's daughter was a passenger. The complainant said that her daughter got out of the car and said, "Mum are you alright?", to which the complainant said, "No I'm not". Counsel for the Crown asked the complainant whether Gail said anything to her. The complainant replied: "Gail looked over the back to, to me, and goes, 'He's put the hard word on you, hasn't he? ' And I said, 'He's done more than that Gail'. And she - I started crying and she started crying. And she said, 'It's okay, he's done it before' ."

In cross-examination, the complainant said that the appellant's wife had stated, " Oh, he's done it before … he said he'll never do it again ". 10 (It should be noted that the Crown, in the opening address to the jury, referred to the appellant's wife's proposed evidence that the appellant had "put the hard word on" the complainant.) 11 The appellant's solicitor did not object to this evidence. 12 The appellant complains that this evidence was tendency or propensity evidence. No tendency notice was served on the accused as required by s 97 of the Evidence Act 1995. It was also submitted that this evidence raised bad character and that the appellant's solicitor should have sought that the trial judge direct the jury to ignore this evidence, or give an appropriate direction to prevent its misuse.

(a)(ii) 13 Having given the expanded evidence in cross-examination set out at [9] above, the complainant continued: " And with that [Gail's] out of the car and they're fighting. He's, she's hitting him and he's hitting her and he pushed her to the ground and then he's over the top of, he was actually on top of her --" 14 The appellant's solicitor intervened in the complainant's answer, saying, "I'll just stop you there", and moved to question the complainant as to whether she had given her daughter and the appellant's wife a detailed account of what had happened in the bedroom. 15 The appellant contends that the evidence of the fight between the appellant and his wife was irrelevant to the proof of the charge and had no probative value. It was submitted it had substantial prejudicial value, in that it portrayed the appellant as being a person of violent disposition and thus of bad character. 16 Apart from the intervention to which I have referred, the appellant's solicitor did not object to this evidence, or ask that it be struck from the record as being non-responsive to his question. Nor did he ask the trial judge for a direction to be given to the jury to ignore the evidence.

(b) 17 The complainant's daughter, in her examination in chief, also gave evidence of an altercation between the appellant and his wife. She said: "… Gail and [the appellant] ended up having, they were pushing each other around and saying, he, she was swearing at him. He was saying to her, 'I'm finished with you, you're nothing but' - I'm sorry about my language - 'a slut' ".

The daughter's evidence continued: "And [the appellant's wife] was saying, 'I don't have my grandkids anymore because you're a child molester' ." 18 The appellant complains this evidence was irrelevant and highly prejudicial; that it was evidence of tendency or propensity; that no notice had been given under s 97 of the Evidence Act; and that it was evidence of extreme bad character. He further contends that a direction should have been given by the trial judge to ignore the evidence.

(c) 19 A friend of the complainant, Ms Robertson, gave evidence that very late in the evening of 29 December 2003, the appellant's wife, Gail, and the complainant came to her door. She had been with each earlier in the evening. Ms Robertson said the complainant was crying and told her what had happened between her and the appellant, namely, that the appellant had pushed her into the bedroom and tried to get on top of her. The Crown Prosecutor then asked whether the appellant's wife had given Ms Robertson any more of an explanation as to what had been going on. Ms Robertson said "no", because Gail was "really angry and upset". Ms Robertson was asked what made her think that, to which she replied, "Well [the appellant's wife] was yelling and screaming and they'd just had a fight". (This was a reference to the fight between the appellant and his wife.) 20 The Crown Prosecutor asked, "What sort of things was she screaming, what was she saying?" to which Ms Robertson answered, "That he's nothing - dirty, you know, mongrel and all that". 21 Senior counsel for the appellant said that had complaint been in dispute in this matter, this evidence may have been admissible, as tending to support the evidence of complaint having been made to the appellant's wife. That is the way the trial judge referred to it in his summing up. In this regard, although complaint was not at issue, the appellant's solicitor had suggested to the jury that a complaint had not been made at the earliest opportunity, because the complainant had not given any detail to her daughter or to the appellant's wife when she had met them in the street within minutes of the incident. The trial judge dealt with this in his summing up by asking the jury, rhetorically, whether it would be expected that the complainant would have given full details to the appellant's wife. He then said: "In any case, things developed quickly. It appears Mrs Steve gained some understanding of an event that had happened because she immediately attacked her husband ." 22 The appellant contends, however, that the question of complaint was not in dispute. The matter in dispute was the extent of the complaint, which was a matter bearing upon the complainant's credibility. It was submitted that this aspect of Ms Robertson's evidence had little probative value, but was highly prejudicial, raised bad character and, therefore, should have been rejected by the trial judge. Alternatively, the appellant's solicitor should have sought that a direction be given to the jury to ignore the evidence.

(d)(i) 23 The next complaint relates to evidence given by the complainant's brother, David Garner. Mr Garner gave evidence that the complainant's daughter telephoned him and said something to the effect that the complainant wanted him to go and see her as, "someone tried to rape her and they grabbed her by the throat". After receiving this telephone call, Mr Garner went to Ms Robertson's place, where he understood the complainant, the appellant's wife and the complainant's daughter to be. He said that whilst he was there, the complainant told him that the appellant tried to rape her and that the other person present in the unit (Mr Pettiona) had a hammer beside the bed with which he threatened her. The complainant told him that when she attempted to leave, "two other blokes tried to chase her to help catch her". 24 The appellant submitted this evidence was both irrelevant and highly prejudicial. It should have been objected to. Alternatively, the appellant's solicitor should have sought that a direction be given to the jury to ignore the evidence.

(d)(ii) 25 Mr Garner also gave evidence that about an hour and a half after he had returned home, the appellant arrived and told him that he was going to "WA" (Western Australia) and said, "Thanks for being my friend, catch you later". 26 It was submitted that the comment by the appellant that he was going to Western Australia was irrelevant, as it was not relied upon by the Crown as evidence of flight or an intention to flee. It was submitted that in any event, that evidence would not have been properly admissible on that basis and the appellant's solicitor should have sought that the trial judge direct the jury either to ignore the evidence, or as to the use to which the evidence could be put.

(e) 27 The Crown Prosecutor, in his opening to the jury, stated the complainant had seen a claw hammer in the bedroom where the assault took place. In her evidence, the complainant said that when she was in the room she was scared, knowing there was another person in the lounge room and not knowing whether they had planned to assault her. The complainant said she was "thinking there's a hammer there sitting beside the bed". She said she did not know whether to scream and she did not know why the hammer was there. She said that "just heaps of stuff was going through my head". 28 Mr Pettiona gave evidence that the hammer was his and that it was either on the bedside table or on the bed. He said he had the hammer to do running repairs on the doors in the apartment. He explained that he used to have to tap all the "pins" down (by which I understand him to mean the pins within the hinges of the door), because they popped up frequently. He said he assumed the hammer was in the bedroom because that was the last room that he had used it in. 29 There was no evidence that the appellant was aware of the presence of the hammer. He contends this evidence was irrelevant and in any event, its prejudicial value exceeded any probative value, which, on the appellant's argument was nil. The appellant contended that his solicitor should have sought that the trial judge give a direction to the jury that this evidence be ignored, or at the least that there be a direction so as to ensure that this evidence not be misused.

Crown's response to the admission of the above evidence 30 Crown counsel on the appeal conceded that most of the above evidence was irrelevant. He also accepted that it was possibly prejudicial. He submitted, however, that it cannot be known what tactical decisions are ever taken at trial and it was possible that objection might not have been taken to the evidence for tactical reasons. He suggested the appellant's solicitor may have decided it was preferable for all of the evidence referred to above, which on its face was prejudicial, to go before the jury, so as to establish a case that the complainant's version of events that night was improbable. 31 It was submitted that this was the likely tactical approach that had been taken, when regard was had to the appellant's solicitor's final address to the jury. In that address, the appellant's solicitor had drawn the jury's attention to the significant differences between the evidence of the various witnesses. When Mr Garner, the complainant's brother, was told of the assault, his attitude was that the complainant should sort it out herself. 32 The appellant's solicitor stated to the jury that commonsense would dictate that if something of that nature had happened to one's sister, that would not be the attitude a brother would take. On the contrary, he would do something about it, whereas Mr Garner "did nothing". (That statement was not accurate, as Mr Garner rang the police). The appellant's solicitor then referred to the evidence set out at (d)(ii) above, where Mr Garner said the appellant had called to see him, to say he was going to Western Australia. The solicitor said to the jury (continuing the error he had already made as to the brother doing "nothing"): "So [the appellant] goes around and sees [Mr Garner] and once again what happens, nothing, doesn't do anything, doesn't ring the police, doesn't confront him, nothing. I mean that - if we accept his evidence you'd have to have some concerns. Obviously he wasn't there but the other important point is that if the [appellant's] guilty, and if the [appellant] has done it, why is he going to go around and say goodbye to the brother of the alleged victim about an hour-and-a-half after it's happened, very difficult to accept." 33 Crown counsel suggested that, overall, the appellant's solicitor might not have objected to the evidence of which complaint is made, because he was seeking to gain a sympathy vote from the jury in response to the somewhat vicious attacks on the appellant's character in the evidence. In this regard, the appellant was portrayed as a man who was unfaithful to his wife, had a history of "putting the hard word on" women, that is, that he was sexually predatory; that he was violent towards his wife; and was a paedophile. He submitted it was likely that the appellant's solicitor had made such a tactical decision, given the reliance upon the evidence of the complainant's brother that the appellant had told him he was going to Western Australia. 34 Crown counsel also pointed out that the only evidence of which complaint is now made, that was not contained in the brief of evidence, was the evidence of Ms Robertson that the appellant's wife had called the appellant a "dirty … mongrel". It was likely, therefore, that as the appellant's solicitor had advance notice of the remainder of the evidence, he was not taken by surprise. It could be inferred, therefore, that he had taken a decision not to object to it. In short, this could be seen as part of the appellant's solicitor's tactical approach to the conduct of the case.

Principles governing a fair trial in the context of the competency of an accused person's legal representation 35 Appeals against conviction are provided for by s 5 of the Criminal Appeal Act. Section 6(1) provides that on an appeal against conviction under s 5(1), the court shall allow the appeal "if it is of opinion that the verdict of the jury should be set aside … on any … ground whatsoever [where] there was a miscarriage of justice". Section 6(1) is subject to the proviso that even if the points raised by the appeal are decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. This is commonly referred to as 'the proviso'. 36 The precepts that only relevant evidence is admissible; that tendency evidence is inadmissible unless notice is given; that evidence of bad character is only admissible in well recognised circumstances; and that the court must refuse to admit evidence where the danger of unfair prejudice outweighs its probative value, are fundamental to a fair trial. The appellant's overall contention on the appeal is that he was deprived of that fundamental right. 37 This contention raised two principal challenges to the sustainability of the verdict against him. First, the appellant's complains that his legal representative at trial should have objected to the material set out in (a)-(e) above, or should have sought directions from the trial judge in respect of this evidence, that the jury ignore the evidence and/or seek directions to prevent the evidence being misused. It was submitted that his failure to do so demonstrated a high level of incompetence, such that the trial miscarried. 38 Secondly, the appellant contends that the trial judge failed to properly deal with the evidence in the trial, either by rejecting the evidence or, alternatively, by failing to give the jury appropriate directions to disregard the evidence of which complaint is made. 39 A cardinal principle of the adversary system of the legal process under which criminal trials are conducted is that, as a general rule, parties are bound by the manner in which they conduct those proceedings. This principle includes the manner in which the proceedings are conducted by a party's legal representative. In R v Birks (1990) 19 NSWLR 677, Gleeson CJ pointed out, at 683: "As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted … The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case." 40 Importantly for present purposes, his Honour observed, at 684, that it was well settled that the incompetence of counsel at trial, of itself, will not attract appellate intervention. Nonetheless, the courts had always acknowledged the existence of a power and duty to quash a conviction in some cases. His Honour stated, at 685, that the relevant principles that applied where it was established that the accused person's legal representation at trial was incompetent were: "1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 41 Senior counsel submitted that these principles have been consistently applied, save that, there is no necessity for an accused person to establish that his legal representative's incompetence was properly characterised as "flagrant". However, as will become apparent, the question is not whether conduct is '"flagrant". Rather, the question is whether there has been a miscarriage of justice. 42 In TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Gaudron J, at [31], stated that the question is whether some act or omission in the trial resulted in a miscarriage of justice. McHugh J, at [74] ff, examined the circumstances in which it could be said there was a miscarriage of justice by reason of counsel's conduct and, in particular, the standard for determining whether counsel's conduct constituted a material irregularity. His Honour stated that whatever description is given to counsel's conduct, the question was whether the act or omission of counsel has resulted in an unfair trial. 43 McHugh J stated, at [76], that if an accused person has been deprived of a fair trial according to law, that constitutes a miscarriage of justice. His Honour concluded in this regard that where a trial had been unfair, the accused should not have to show that counsel's conduct might have affected the result, because no matter how strong the prosecution case appears to be, "an accused person is entitled to the trial that the law requires". His Honour explained however, at [77], that in probably the majority of cases, even if the conduct of counsel is irregular, that will not necessarily deprive the accused person of a fair trial: "Not every error makes the trial unfair". However, he noted that: "… a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person: see Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 516." (Emphasis added) 44 In discussing what standard was to be applied in determining whether counsel's conduct was a material irregularity, McHugh J said, at [79]: "The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, 'whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue': R v Scott (1996) 137 ALR 347 at 362. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the trial? Second, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, 'it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence': R v Birks (1990) 19 NSWLR 677 at 685. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial." 45 At [80], his Honour posed the question as to the circumstances in which an appellant would be able to discharge what his Honour described as "the heavy burden of establishing that counsel's conduct constituted a material irregularity amounting to a miscarriage of justice". McHugh J considered that "flagrant incompetence" was a likely circumstance in establishing a material irregularity such as to provide the stepping stone to a finding of a miscarriage of justice. It will not be sufficient to show that forensic decisions were made in respect of which competent counsel would have differing views as to their suitability: see [81]. 46 In Ali v R [2005] HCA 8; (2005) 214 ALR 1 the appellant appealed against his conviction on the basis that there had been a miscarriage of justice in that he was not tried fairly because of the incompetence of trial counsel. Callinan and Heydon JJ (with whose reasons Gleeson CJ agreed in a separate judgment) noted, at [99], that many decisions made in the course of a trial, including tactical decisions, are often made hurriedly or intuitively. Other difficult decisions often needed to be made as a trial unfolded. Their Honours stated that it was in the light of such matters that an evaluation had to be made as to whether: "… the conduct [of trial counsel] produced a miscarriage of justice, that is, whether it deprived the accused of a chance of acquittal that was fairly open. As Gaudron J in TKWJ v The Queen said: '[W]hether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open. One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test.'" 47 Their Honours concluded, at [100], that it had not been demonstrated that any conduct on the part of counsel had deprived the accused of a fair chance of acquittal. 48 Hayne J (with whom McHugh J agreed) stated, at [23], that the fact that counsel could have taken an objection to evidence does not demonstrate either that counsel was incompetent or that there had been a miscarriage of justice. Rather, the question was whether counsel should have objected. His Honour adverted, at [110], to his conclusion in TKWJ that the question of miscarriage does not depend upon a factual inquiry as to why counsel acted in a particular way. He explained, at [25]: "Rather, the question is whether there could be a reasonable explanation for the course that was adopted at trial. If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred." (Citations omitted)

Then, importantly, his Honour stated, at [26]: "… when considering whether a failure to object to evidence has brought about a miscarriage, it is necessary to consider the effect of the evidence which it is said trial counsel could have had adduced in a different form or could have prevented being led." 49 In Nudd v R [2006] HCA 9; 80 ALJR 614; 162 A Crim R 301, Gleeson CJ, at [7], explained the concept of miscarriage of justice in these terms: "The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial." (Emphasis added) 50 His Honour observed, at [8], that where it is claimed that an appellant has not had a fair trial, then the court is primarily concerned with "what happened at, or in relation to, the trial", rather than why it happened. Thus: "… where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred."

In other words, it is the " fairness of the process that is in question, not the wisdom of counsel ": [9]. Gleeson CJ reiterated the general rule that counsel's decisions bind the client. His Honour stressed the nature of the adversarial system and observed that the fairness of the process was to be judged in that light. Accordingly, a complaint that counsel's conduct resulted in an unfair trial, is considered, at least in most cases, by reference to " an objective standard ". 51 In Nudd, it was accepted that there could be rare cases in which counsel's misbehaviour or ineptitude was so extreme as to constitute a denial of due process. Gleeson CJ adopted the two examples given by McHugh J in TKWJ, namely, where for no valid reason, counsel failed to cross-examine a material witness, or did not address the jury. Gleeson CJ noted that he understood McHugh J to be referring to cases where there was no rational explanation for counsel's decision, not merely to a case where an appellate court might consider it had been unwise for counsel to adopt a particular course. 52 Gleeson CJ considered the case against the appellant in Nudd to be so overwhelming, that there could not have been any real doubt as to the appellant's guilt. His Honour concluded, at [20], that there was no failure of process that departed from the essential requirements of a fair trial. 53 Gummow and Hayne JJ also emphasised that the question was whether or not there had been a miscarriage of justice and said that it was important for a court not to be distracted by questions of whether or not trial counsel's conduct was appropriately described as, for example, incompetent with or without some emphatic term such as "flagrantly". Their Honours stated, at [24]: Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at 134 [31] per Gaudron J, of whether there was a material irregularity in the trial: at 149-150 [79] per McHugh J, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial: at 135 [33] per Gaudron J, 149 [79] per McHugh J, 157 [101] per Gummow J, 157 [104] per Hayne J." 54 Kirby J considered there were cases where it was not necessary to prove that the outcome would have been different, but for the incompetence of counsel. His Honour concluded, at [100], that there were rare cases where legal representation may have been of such a quality, either because there may have been misbehaviour, errors or incompetence in the legal representation of an accused at trial that was so egregious, frequent or obvious as to amount to a miscarriage of justice. His Honour observed that "The 'proviso' postulates upholding the verdict at the conclusion of a trial that has met the minimum standards required for a fair trial. It does not envisage the affront to the appearance of justice of upholding orders that have followed a proceeding that did not amount, in law, to a proper trial at all …" 55 Callinan and Heydon JJ were of the opinion that on any assessment, whether subjective or objective, counsel's conduct in that case was incompetent to a serious degree. Nonetheless, their Honours concluded, at [162], that the appellant was not deprived of a chance of acquittal, because the Crown case against him was, effectively, unanswerable. 56 There are numerous other cases dealing with the incompetence of legal representation. I will refer only to Seymour v Regina [2006] NSWCCA 206; 162 A Crim R 576 where Hunt AJA (Simpson and Rothman JJ agreeing) said: "[20] It is, however, important to note that such a ground of appeal neither requires nor permits an inquiry into the competence of the counsel in question; what must be established is the objective fact that there was a miscarriage of justice as a result of counsel's conduct, in the sense that there has been a loss of a chance of acquittal which was fairly open to the accused: TKWJ v The Queen at [13], [16]-[17], [79], [83], [107]; Ali v The Queen at [7], [12], [18], [38], [100]; Nudd v The Queen at [2], [8]-[12], [24]-[25], [62], [64]-[68], [81], [151], [157]. An appellant carries a heavy burden: Regina v Miletic [1977] 1 VR 593 at 597 (cited by McHugh J in TKWJ v The Queen at [74]).

[21] Relevant to the existence of a miscarriage of justice in the particular trial are the issues of whether the conduct of counsel represented a legitimate choice a competent counsel could fairly make in the circumstances of that trial and whether, viewed objectively, it was a rational tactical decision in the particular forensic situation in which it was made. When that situation is examined, issues such as the forensic advantage which may have been sought and possible prejudice which may have been caused by counsel's conduct are relevant but not necessarily decisive considerations: TKWJ v The Queen at [16]-[17], [24]-[28], [31], [33], [81]-[85], [95], [97], [106]-[112]; Ali v The Queen at [9], [12], [24]-[25], [98]-[99]; Nudd v The Queen at [9]-[10], [55], [157]-[158]." 57 This summary was adopted by this Court in Mouroufas v R [2007] NSWCCA 58; Rolfe v Regina [2007] NSWCCA 155; (2007) 173 A Crim R 168.

Was the evidence admissible and/or prejudicial? 58 There will be no miscarriage of justice if evidence is properly admitted. In this case it was conceded that the evidence of which complaint is made was not relevant. Accordingly, it was not admissible. However, as is apparent from the foregoing that is not the test for determining whether there has been a miscarriage of justice. Rather, it is necessary to consider what effect the wrongly admitted evidence, (or other error at trial) had on the outcome of the trial. 59 In this case, the appellant contends that the evidence of which he complains falls into one or more of the following categories: evidence that was irrelevant; evidence that was prejudicial; tendency or coincidence evidence; and evidence of bad character. 60 As to (a)(i): The evidence that the appellant's wife, Gail, said to the complainant, "He's put the hard word on you, hasn't he?" and "It's okay, he's done it before" was prejudicial. Unless it was relied upon as tendency evidence, it was irrelevant and was therefore inadmissible: Evidence Act, s 55. Even if some basis of relevance could be found (other than as tendency or propensity evidence) the evidence was prejudicial. The trial judge was under an obligation to refuse to admit the evidence, if its probative value was outweighed by the danger of unfair prejudice to the defendant: Evidence Act, s 137. Section 137 is mandatory in its terms and is not dependant upon objection being taken to the admission of the evidence. As Heydon JA (as his Honour then was), stated in R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44, at 47: "… the terms of [s 137] are mandatory. They must be complied with whether or not a party who might gain from their invocation actually invokes them. It is notable that Pt 3.11 (in which s 137 appears) … [is] not listed as among the provisions which the court may, with the parties' consent, dispense with: s 190." 61 In my opinion, this evidence fell into that category of evidence that should have been excluded under s 137. It was evidence that characterised the appellant as a sexual predator. As such, it was evidence of bad character and was the type of evidence that could and most likely would have influenced the jury's determination in circumstances where the case depended upon the credibility of the complainant, to more readily accept her evidence. 62 The only possible relevance of this evidence was as tendency or propensity evidence. However, notice had not been served on the accused of the intention to use the evidence as tendency or propensity evidence: Evidence Act, s 97; Evidence Regulation 2005, cl 5. Section 97 provides that such evidence is not admissible in the absence of notice, unless the court dispenses with the notice requirements: Evidence Act, s 100. There was no such dispensation. 63 I deal separately with the admission of evidence of bad character below. 64 As to (a)(ii) and (c): The evidence of the fight between the appellant and his wife was not relevant. It was not argued that it was part of the res gestae. It was evidence of bad character because it indicated that the appellant was prepared to be violent towards women and was thus prejudicial. The prejudicial value of this evidence became more apparent during the trial, when the complainant expanded upon the details of the assault, stating that the appellant "was just like an animal"; he "was pulling my face, my hair"; he was "pulling me by the hair"; and that he "pulled me down by the hair". 65 No previous complaint had been made that the appellant had been pulling the complainant's hair and the description of him being "like an animal" had not been given before the trial. It was possible, indeed likely, that the jury would use this evidence of bad character as support for the complainant's evidence that the appellant had been violent towards her, which, on her account, occurred during the course of the sexual assault. The jury was likely, therefore, to have treated the evidence of bad character as directly supporting the complainant's evidence of the sexual assault. 66 As to (b): The evidence given by the claimant's daughter, in which she stated that the appellant's wife had said to the accused, "I don't have my grandkids anymore because you're a child molester", was highly prejudicial. It was not relevant. Even if arguably relevant, it had no or little probative value and the trial judge was required to reject it given its highly prejudicial nature: Evidence Act, s 137. 67 It was also evidence of extreme bad character. Stated in general terms, the evidence of the bad character of an accused person is not relevant to the guilt of the accused of the particular crime with which that person is charged. The prosecution may only raise the bad character of the accused to negate evidence that the accused person adduces of good character: Evidence Act, s 110. 68 In R v Stalder [1981] NSWLR 2, Street CJ (Begg and Yeldham JJ agreeing), considered the limitations on the admissibility of rebuttal evidence as to bad character by the Crown, in accordance with s 412 of the Crimes Act (see now s 110 of the Evidence Act). His Honour stated, at 15: "These prescriptions of the effect and scope of character evidence do not override the deeply rooted common law principle precluding the Crown from calling evidence of bad character solely for the purpose of seeking to establish affirmatively as part of its case in chief that the accused is a person of bad character and hence could be regarded as more likely to have committed the crime with which he is charged."

Later, at 18, his Honour stated: "The section has … been from the inception of its precursor in 1876 construed with due regard to the common law principle denying to the Crown freedom to call evidence of bad character to establish the likelihood of guilt … This basic principle of the common law is also to be found in the restriction placed upon the legitimate use of evidence of bad character called in rebuttal of evidence of good character … The Crown is entitled to take up this issue and to attempt to negate it by evidence of bad character. The Crown is not, however, entitled to assert a counter proposition of likelihood of guilt. These considerations underlie significantly both the desirability of juries being carefully instructed upon the legitimate use which can be made of the rebutting evidence of bad character and the approach to be taken by a trial judge in ruling upon the discretionary objection based upon unduly prejudicial significance of evidence of bad character." 69 As I have said, this was evidence of extreme bad character, the prejudicial value of which was immense. It had had no probative value. The trial judge was obliged to reject the evidence, regardless of the failure of the appellant's solicitor to object to it. 70 As to (d)(i): The evidence of the complainant's brother of the telephone call from the complainant's daughter was also evidence of violence, although it should be noted that the complainant did not give evidence of being "grabbed by the throat". Nor did the complainant's daughter give evidence that she had made any such statement. The brother's evidence was hearsay and was evidence of bad character. If it was intended to be relied upon as proof of complaint, then it was incumbent upon the trial judge to determine, pursuant to s 137, whether its probative value was outweighed by its prejudicial value. 71 It is possible that the appellant's solicitor did not object to this evidence, preferring to take a tactical stance that this was another aspect of the evidence that was inconsistent and embellished, so as to support a submission to the jury that the Crown witnesses should not be believed. However, the solicitor made no reference to this evidence in his address to the jury, notwithstanding that he emphasised the inconsistencies in other parts of the evidence. 72 Although this was evidence of bad character, it would not, in my opinion, have been sufficient to establish a miscarriage of justice. Further, I am of the opinion that the failure to object to this evidence is not the makeweight that establishes that there was, overall, a miscarriage of justice. Accordingly, I would leave this particular complaint to one side in determining whether there has been a miscarriage of justice. 73 As to (d)(ii): The evidence that the appellant went around to the complainant's brother's house some hours after the incident and said he was going to Western Australia was not relied upon by the Crown as evidence of flight or of an intention to flee. Rather, it was merely relied upon as evidence of what occurred later on some hours after the incident. In my opinion, unless it was relied upon as evidence of flight, it was irrelevant and inadmissible. 74 The Crown conceded as much in its submissions on the appeal. However, the appellant's solicitor, in his address to the jury, relied upon the evidence to portray the complainant's version of events as improbable. The Crown thus asserts that the appellant's solicitor's failure to object to this evidence should be seen as part of the tactical decisions made by him at trial. 75 In my opinion, this is not only a reasonable assumption, it is significantly supported by the manner in which the appellant's solicitor referred to this evidence in his address to the jury. In any event, I am of the opinion that this was evidence about which different trial advocates could take differing positions. Accordingly, there was no miscarriage of justice in the admission of this evidence. Rather, it is one matter in respect of which the appellant is bound by the conduct of his solicitor, in accordance with the principles discussed above. 76 As to (e): The other evidence of which complaint is made is the evidence of the hammer in the room. The complaint made by the appellant, that his Honour failed to deal with the innocent explanation as to why there was a hammer in the bedroom, is not made out. His Honour summarised Mr Pettiona's evidence on this matter. However, there is still a question whether the evidence should not have been admitted, pursuant to the operation of s 137. Given that Mr Pettiona's evidence was before the jury, I would not have necessarily concluded that this evidence needed to be excluded under s 137.

Was there a miscarriage of justice? 77 Nothing is known about the appellant's legal representative at trial other than that he was a country solicitor. Nor does the Court have any understanding as to why he did not object to the challenged evidence. There was no evidence before the Court from the solicitor or the appellant as to the running of the trial. 78 However, it is apparent from the solicitor's address to the jury that he had made tactical decisions both during the course of his trial and in his address to the jury. One tactical decision that he made, that is obvious from the transcript of his address to the jury, was a decision not to cross-examine the complainant's brother. The appellant's solicitor referred to this in his address to the jury when, having given an overview of the evidence to that point, he said: "Now so we're now back at [Ms Robertson's] and that I think of all the evidence that we've heard … and this was I think that some of you looked somewhat aghast when [Mr Garner] being the brother of [the complainant] gave evidence and he wasn't cross-examined by me because the other witnesses had been cross-examined, he gave very short evidence and he wasn't cross-examined by me at all." (Emphasis added) 79 The other tactical decision that is apparent from his address to the jury, was that the appellant's solicitor relied upon the fact the complainant's version of events had expanded, from the time the appellant's wife and her own daughter stopped the car in the street, to the version of the complaint that she gave to the police. The appellant's solicitor emphasised this to the jury, before dealing with the evidence of the complainant's brother. Overall, the picture that emerges from the address to the jury is that the solicitor was implying that there was some hysteria on the part of the female witnesses. 80 It is also apparent from the manner in which the solicitor dealt with the brother's evidence, that he relied on it to demonstrate that nothing criminal had happened between the appellant and the complainant. It is probable, therefore, as I have already indicated, that a tactical decision was made in relation to this evidence. The appellant should be bound by that decision because its admission did not result in any miscarriage of justice. 81 However, the same cannot be said in respect of the evidence in (a)(i); (a)(ii); (b); and (c). This evidence was prejudicial, as I have explained. The consequence of the admission of that evidence was that the jury was left with evidence that the appellant was a person of a violent disposition towards women, with a history (albeit non-specific) of "putting the hard word on" women, and who was a "paedophile", which meant his wife could not see her grandchildren. These aspects of the evidence should have been objected to by the appellant's solicitor. 82 Further, the trial judge had an obligation not to admit the evidence that I have identified in respect of which there was a danger of unfair prejudice to the appellant, which outweighed its probative value, if any. The trial judge failed to undertake the mandatory task required by s 137 not to admit this evidence. As a result of that failure in the trial process, prejudicial evidence was before the jury and was likely to be used by them in determining the guilt of the appellant. 83 Accordingly, I consider that there was a miscarriage of justice in that evidence being adduced.

Was the verdict unsafe and unsatisfactory? 84 The appellant contends that the case against him was not so strong that it was likely he would have been convicted in any event. He contends, therefore, that he lost a reasonable chance of acquittal. 85 The Crown case required the acceptance of the complainant's evidence. Her evidence was unsupported by the witness Steve Pettiona. Although there was evidence of immediate complaint, that complaint was responsive to a question asked by the appellant's wife and the complaint was not made in any detail. The detail did not emerge until the complainant spoke to the police. Even then, the complainant expanded upon the extent of the violence used in her evidence. 86 There were significant inconsistencies in the evidence of the other witnesses. Some of these have been adverted to above. It is, of course, usual for evidence to vary from witness to witness. People observe and remember events and conversations in differing degrees of detail. Part of the dynamics of a trial is the working out of whether evidence is so different as to not be credible. In this case, however, the effect of the inadmissible evidence was that the jury were left with the portrayal of a man who had violent and sexually predatory tendencies and was a child molester. It is highly likely that this evidence would have influenced the jury's determination as to whether they believed the complainant. It follows, in my opinion, there was a high likelihood that the inadmissible evidence affected the outcome of the trial. 87 Having regard to the prejudicial nature of the evidence that was admitted, the Court cannot be satisfied that no substantial miscarriage of justice has occurred. The appeal, therefore, should be allowed, the conviction quashed and a new trial ordered.

Other grounds of appeal 88 There were two other grounds of appeal with which I should deal briefly. The first was a complaint that Senior Constable Harper should not have been permitted to read from a statement that he had made on 7 January 2004. The Crown Prosecutor sought leave that Senior Constable Harper refresh his memory in accordance with s 32 of the Evidence Act in regards to what was in his statement. The statement had been prepared from the notes he had taken when he interviewed the complainant at Ms Robertson's home in the early hours of the morning of 30 December 2003. He said he did not take down the exact conversation he had with the complainant at that time: "It was just a rough version of the incident". His notebook was not available and the appellant's solicitor indicated that in that circumstance, "it was a bit difficult", as he could not compare the difference between what was in the notebook and what was in the statements. 89 The trial judge indicated that the statement was admissible under s 32 of the Evidence Act and granted leave pursuant to this section. This, in fact, was an error. The relevant section is s 33, which makes specific provision for evidence given by a police officer and provides that despite the constraints on a witness reviving a memory by the use of an earlier produced document pursuant to s 32, "a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer". The evidence may only be given if the statement was made "at the time of or soon after the occurrence of the events to which it refers": s 33(2)(a). 90 Senior counsel for the appellant did not contend that a statement made about eight days after the incident was not sufficiently contemporaneous so as to fall outside s 33(2)(a). The submission on this particular challenge was not clear. It seems that the way the matter was eventually put is that it was a hearsay statement. However, the evidence was admitted as evidence of complaint and no error has been demonstrated in allowing the police officer to read from the statement. It was within the trial judge's discretion to allow Senior Constable Harper to read from the statement: see Chisari v R (No 2) [2006] NSWCCA 325 per Grove J (with whom Kirby J and Hislop J agreed), at [28]-[30]. 91 The second complaint related to an irregularity at trial, when a portion of a transcript of the appellant's ERISP, which was irrelevant and in respect of which the taped version was not played to the jury, was provided to the jury. The jury had been given the transcript to enable them to follow the tape recording as it was being played, if they so wished. During the playing of the tape, a decision was made not to play it in its entirety. However, the jury already had the transcript of the whole tape. 92 The jury was asked to return the transcript so that the irrelevant material could be removed. The appellant submits that the appellant's solicitor failed to seek a discharge of the jury or directions from the trial judge to the jury regarding material not before them. The appellant further submits the trial judge should have directed the jury to put out of their minds anything they may have read in the material that was removed. His Honour did not do so, but simply told the jury that the end of the transcript was missing and a decision had been made not to play the balance of the tape to them because it contained material that was irrelevant and did not take the matter any further. 93 It was submitted that as a consequence of the above matters, the accused lost a chance which was fairly open to him of being acquitted. 94 In the portion of the ERISP that was not played to the jury, the appellant had been asked questions as to whether he had an argument with his wife and whether there had been a physical altercation; whether he had hit his wife the previous evening; whether he had ever hit his wife in the past; whether he had ever grabbed his wife in a physical manner during an argument; whether he had cheated on his wife over the past 13 years; and whether he had taken any illegal substance the previous evening. 95 In my opinion, some of this material was prejudicial and ought to have been the subject of a direction to the jury that should they have read further than the tape was played, it was not part of the evidence in the trial and they should ignore it. However, having regard to the conclusion I have reached as to the outcome of this appeal, it is not necessary to finally make a decision as to whether that failure of its own would have been sufficient to require a new trial. When it is added into the matters to which I have already referred, it is another aspect of the trial that was unfair and the appellant was deprived of a fair chance of an acquittal. 96 Accordingly, I propose the following orders:

2. Quash the jury's verdict of conviction given on 5 February 2007;

3. Order that there be a new trial. 97 HISLOP J: I agree with Beazley JA. 98 PRICE J: I agree with Beazley JA. **********

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