Stevens v R

Judgment 1HOEBEN CJ at CL: The applicant seeks leave to appeal against his conviction on five counts of sexual intercourse without consent, three counts of indecent assault and two counts of attempted sexual intercourse without consent. All ten charges related to the same complainant and arose from an incident on the morning of 17 January 2009. 2The applicant stood trial before Judge Berman and a jury of twelve and was convicted on 14 July 2011. The trial lasted eight days. The issue in the trial was consent. The applicant was sentenced to imprisonment for 9 years with a non-parole period of 6 years. There is no application for leave to appeal against sentence. 3The grounds of appeal relied upon by the applicant are: Ground 1: Counsel for the applicant erred in not cross-examining the complainant as to the extent to which the complainant's evidence had been compromised. Ground 2: Counsel for the applicant erred in not making an application for a mistrial. Crown case at trial 4The complainant was a 19 year old backpacker from Denmark. She went to a bar in George Street, Sydney, with a girlfriend at around midnight on 16 January 2009. She had consumed about four mugs of red wine earlier at her hostel before going out. She described herself as intoxicated, but in control. She remembered dancing with her friend at the bar and thinking about buying a cocktail. 5The complainant's next memory was waking up in an unfamiliar room, naked under a quilt, with a strange man (the applicant) in the bed. The complainant had no idea where she was or how she got there. She felt sick, dizzy and could not move. She described it as being just like waking up from surgery. The strange man was touching her breasts and genitalia. He then inserted his finger into her vagina before performing cunnilingus on her. The complainant described being unable to talk, or to do anything when this was happening. She said that she was so tired she simply could not move. She recalled the applicant putting his finger into her anus and then sticking the same finger in her mouth. 6The complainant at this point regained some strength, dressed herself in her clothes that she found at the end of the bed and went to the bathroom which was adjacent to the room. The complainant described feeling nauseous, dizzy, confused and very exhausted. She observed white liquid coming from her vagina. 7After going to the toilet, the complainant wanted to leave but could not see the door out of the bedroom given her state. Feeling sick, tired and unable to stand, she lay back down on the bed with her back to the man. After lying down the applicant started to take off her clothes. The complainant was unable to do anything to stop him because she was falling asleep. The man then tried unsuccessfully to put his penis into her vagina and anus. The complainant tried to push the man away and pull her dress down. She said "No" but it only came out as a whisper because she was dizzy, confused and exhausted. The applicant then tried to get her to masturbate him, spread her legs and digitally penetrated her vagina again. The complainant described the applicant as being rough and hurting her while he did this. 8By this stage, the complainant had regained some strength. She sat up and told the applicant that she wanted to go home. She managed, with some difficulty, to get dressed. Her jacket had vomit on it. She found her handbag lying on the floor. The applicant gave her mobile phone to her. It did not work. Later she discovered that the SIM card holder was broken. 9The applicant opened a door which led out into a corridor and downstairs to the street. It was daylight by this time. The applicant put the complainant into a taxi and gave her $20 to pay for it. 10When the complainant got back to the hostel, she immediately complained to her friend that she had been raped. The complainant rang her mother overseas and was persuaded to go to hospital. She did so and was examined by a doctor. The doctor observed an area of redness in her genital area which was swollen and inflamed with a 3-4 cm abrasion. The complainant then made a statement to the police and returned to Denmark. 11The DNA on vaginal swabs matched the applicant's DNA. Testing of a urine sample, taken from the complainant, detected morphine, Ibuprofen and alcohol. The complainant said that she had not taken any drugs that evening. The applicant's case 12The applicant, who was aged 50 at the time of the incident, gave evidence and was cross-examined. The effect of his evidence was as follows. He was drinking at home at Goodlet Lodge. Having drunk a 750 ml bottle of Bundaberg rum he went to a pub called "Scruffy Murphy's" at the corner of Goulburn and George Streets between 11.30pm and midnight. He consumed more alcohol there and left at 4am. His next recollection was of going up the stairs to Goodlet Lodge with "Ingy", the complainant. The applicant told the complainant that she should take her stilettos off because the staircase tiles were slippery. He could not recall anything else about the way the complainant was dressed. 13The applicant and the complainant entered the applicant's bedroom and danced for about 15-20 minutes. They then jumped on the bed before lying down clothed. They were talking at this point but the applicant could not recall what they talked about. 14The applicant decided to shower because he was sweaty and wanted to sober up. He undressed and went into the shower where the complainant joined him, naked. He proceeded to wash the complainant's stomach, breasts and vagina in the shower and the complainant washed the applicant's penis and back. The applicant could not recall whether the complainant's hair got wet but said that her hair was up, probably in a bun. The applicant and the complainant were in the shower for about 5 - 10 minutes before the complainant got out. 15When the applicant got out of the shower, the complainant was in bed under the sheet. The complainant then asked the applicant to "lick her out" and the applicant went down between the complainant's legs and ran his tongue around her vagina. He said that he may have placed a finger in her vagina, or just around the top of her vagina, but sensed that the complainant was about to climax so stopped because he did not want her to climax in his mouth. In cross-examination, the applicant estimated that he performed cunnilingus for about 10 minutes. The applicant then described in detail various sexual activities which he said were engaged in by the complainant and himself consensually. 16When the applicant asked the complainant if they could have sex again she said "No" because she had a headache. He then gave the complainant two "Panadol Forte" tablets. He did not give the complainant any other drugs. Ten minutes before the complainant left, she went to the bathroom on her own. The applicant asked the complainant if he could see her again, suggesting that they go out for dinner, to which the complainant replied that that would be nice. The applicant then took the complainant downstairs to get a taxi and waited with the complainant for about 10 to 15 minutes before a taxi came. At that point, the sun was up and people were about, but the shops were not open. The applicant estimated that it was between 8 and 8.30am. When the complainant got into the taxi, the applicant handed $20 to either the complainant or the driver. 17The applicant said that the complainant was awake and did not give the impression that she was unaware of what was going on while with him. He denied putting his finger into the complainant's anus and denied trying to make the complainant masturbate him. He denied taking the complainant's clothes off and denied being rough with her when he inserted his finger/s into her vagina. The applicant did not notice any vomit on the complainant's clothing. The only time he touched the complainant's breasts was in the shower. Factual background to the appeal 18The complainant gave evidence at the trial via closed circuit television on 5 and 6 July 2011. She had a support person, LB, from the Court Support Service at Mission Australia with her when she was giving evidence. During the course of cross-examination on 6 July, the complainant became distressed when asked about whether she wanted to get away from the applicant. The complainant said that she wanted to leave, but could not do anything because she did not know where the door was and she could not see it. The complainant was asked if she would like a break to which she responded "Yes". A five minute break was taken. 19Nothing was reported by the court officer after the break. Cross-examination of the complainant continued and was completed by the luncheon adjournment on 6 July. The following day the trial judge advised the parties that he had been told by the court officer the previous night that certain events had occurred during the five minute break referred to. The incident was described by his Honour as follows: "The support person said to the court officer "Can you leave us alone for five minutes?". The court officer said, "Okay but I will have to leave the door open". The court officer then stood next to the open door, out of sight of the witness, but in sight of the support person. The support person said to the witness "You're saying the right thing about not being able to see the door but you should say" at which point the court officer interrupted the support person and said "Excuse me" quite loudly. The support person replied "Chill out, you're not a police woman". The court officer remained in the witness room thereafter and no further discussions were had between the support person and witness." (T.138.44) 20It became apparent subsequently that his Honour was reading from handwritten notes made by the court officer soon after the alleged event. His Honour said: "Now my tentative view is that there is no harm in what actually occurred due to the intervention of the court officer but I, of course, was obliged to bring this to you attention, but perhaps more importantly it does call into question the whole issue of support people being provided by a party but that's a decision that was taken years ago ..." (T.139.6) 21His Honour gave the applicant's counsel an opportunity to obtain instructions. Before she had finished getting instructions, his Honour also advised the parties that the court officer had said that it was the second time that she had asked the support person not to talk to the witness about her evidence. The court officer could not remember the circumstances of the first occasion (T.141.15). 22After further time to speak with the applicant, counsel made an application to have some evidence called on a voir dire by the support person and complainant. His Honour asked if the court officer would be required. After the Crown suggested that perhaps that course would need to be taken so that the process was transparent, his Honour indicated that he should disclose that the court officer was his step-daughter (T.144.4). 23The support person, LB, gave evidence on a voir dire on 7 July. The effect of her evidence was as follows. She was a qualified solicitor and had only met the complainant on the first day that she gave evidence. She was present with the complainant while the complainant was giving evidence from the remote room. She recalled the particular break that occurred after the complainant became distressed about not being able to see the door out of the bedroom. 24LB described the complainant breaking down emotionally when the cameras were turned off. The complainant was sobbing, shaking and breathing very rapidly. She was on the point of hyperventilating. The complainant kept repeating "I just couldn't see the door". LB said to the complainant "I understand .... This thought is so distressing to you, you couldn't see the door. That makes sense to me. I understand." She may also have said "People will understand that". 25LB explained that she was reflecting the complainant's feelings back to her which was a strategy that assisted in containing the emotions of victims. She said that she saw it as her role to help contain the complainant's emotions and empathise with her so that the complainant felt calm enough to continue. LB was very aware that she was not to discuss evidence with the complainant. She said that during this very brief conversation the court officer said "You can't talk about the evidence", LB replied "Excuse me we are not talking about the evidence. I just need a couple of moments with my client would you mind." The court officer said "Okay that's fine". The court officer then stood outside the door. LB said that she continued the conversation with the complainant to calm her emotionally so she could continue. When the court officer again said "You can't talk about the evidence", LB said to her "Excuse me, you are not a police officer, I am talking with my client". The court officer then mouthed the words "stop it" (T.173-174). 26LB denied saying something like "You're saying the right thing about not being able to see the door but you should say" before being interrupted by the court officer. She said that this was the first time that the court officer had asked her not to talk to the witness about her evidence. The only other occasion was again during the same break, as she outlined in her evidence (T.177). LB said that during her dealings with the complainant, there may have only been a "few moments" when she was alone with her having a conversation that could not be heard by someone else. She said that she did not stay with the complainant during the lunch break. If there were other breaks, there was usually a court officer present. 27The next morning (8 July) the court officer gave evidence which confirmed what had been disclosed by his Honour as having been in her handwritten note. She said that she had interrupted the conversation before any prompting could occur. She said that the only additional thing that was not in her note was that after the support person said to her "Chill out you're not a police woman", she had mouthed at her "stop it". 28In relation to the question of there being any similar occasion the evidence of the court officer was: "Q. Ms M this occasion that you put some details down about the conversation that occurred. That was the second time was it that you had a particular concern, can you remember anything about the first occasion? A. Not really unfortunately. That's why I wrote down what happened the second time. Q. Would it be fair to say the first occasion you just had an impression that you were concerned about what was going on, but you did not make any sort of careful note of what was said? A. Yes, that's correct." 29The court officer agreed that she did hear the support person say something similar to "I understand L, this thought is so distressing to you. You couldn't see the door. That makes sense to me. I understand. People will understand that." She agreed that the complainant was sobbing after the camera was disconnected. 30The court officer was confident that because she had intervened, the support person had not proceeded to give advice to the complainant about what she might say and that from that time until the camera came back on, the support person did not tell the complainant what she should say about anything (T.234-235). 31After the court officer finished giving evidence, his Honour asked: "Q. Does anyone want to say anything else or should we resume the trial?" The applicant's counsel replied: "Formally I need to have a conference with my client at some point today but I'm not anticipating anything." His Honour then said: "Well, if you change your mind let me know." No application was made by the applicant's counsel to call the complainant to give evidence on a voir dire and the complainant did not give further evidence. Evidence taken on appeal 32The applicant swore an affidavit and gave evidence in the appeal. The effect of his affidavit was that he expected his counsel to cross-examine the complainant after the issue with the support officer had arisen and that he himself had questions which he wanted the complainant to answer. He said that he did not have any conference with his barrister, or solicitor, between when the court officer gave evidence on 8 July and when a piece of paper was placed before him in court by his barrister just before the judge came onto the bench on Monday, 11 July. The applicant said that the contents of that document were not explained to him. He signed the document as an acknowledgment of the advice given to him by his legal representatives, but did not provide any instructions as to how he wished to proceed with the issue. 33The applicant confirmed that on 11 July when another issue arose in relation to DNA evidence, he gave written instructions to his legal advisors not to seek a discharge of the jury in relation to that issue. He did not give any written instructions in relation to not calling the complainant, or not seeking a discharge of the jury in relation to the support person issue. He was still under the impression that the complainant was going to be cross-examined and was not aware that the legal discussion of the issue was over. When he raised the matter the next day, he was informed by his barrister that it was too late. 34The applicant confirmed those matters in his oral evidence. He said that he only had time to sign the paper on 11 July before the judge came on the bench. He said that he was confused and had spent the weekend wondering what was going on. He agreed that he had given written instructions on 11 July in relation to the DNA incident, that he did not want the trial aborted. The following day he changed those instructions and instructed his barrister to make an application for the discharge of the jury on the basis of the DNA evidence. The applicant said that the only conference he had in relation to the support person incident took place on the afternoon of 7 July. 35Ms Moen was the applicant's barrister at trial. She had been in practice as a barrister since August 1996. She swore an affidavit and gave evidence in the appeal. The effect of her affidavit was that she did have a conference with the applicant after court finished on 8 July, that the applicant did provide instructions in relation to the support person issue, and that he gave instructions that the complainant was not to be cross-examined and not to seek a discharge of the jury. In support of that evidence, Ms Moen had attached to her affidavit a file note which she made after evidence had finished on 7 July 2011; an email which she sent to her instructing solicitor on 9 July and a summary of the matters concerning which the applicant had been advised when giving his instructions not to make any applications arising from the support person issue. That summary was prepared on 10 July and was emailed by Ms Moen to her instructing solicitor early on the morning of 11 July 2011. 36In her affidavit Ms Moen summarised the advice which she gave to the applicant after court on 8 July. The following is an extract from this part of her affidavit: "8. ... b. this development may provide grounds to: i. apply to have the complainant recalled for further cross-examination to ascertain whether there were other occasions on which the support person may have contaminated the complainant's evidence or otherwise interfered with the usual approach to cross-examination; and/or ii. apply for a discharge of the jury due to the risk of contamination of the complainant's evidence; and/or iii. apply for the Trial Judge to disqualify himself on the grounds of apprehended bias, because the court officer was his step-daughter and had now become a contentious witness; c. he could not delay making any of those applications and needed to make them promptly, if he was to have the best chance of the application being successful, or alternatively being upheld on appeal if rejected by the Trial Judge; d. in my opinion the trial had thus far proceeded to his advantage more so than I had anticipated, and it was unlikely all those advantages would be repeated at a re-trial; e. Judge Berman's ruling on the tendency evidence would apply at a re-trial and thus was one advantage that would not be lost; f. in my opinion pursuing further cross-examination of the complainant might produce more incriminating evidence against him; g. it was difficult to predict whether the issue of possible contamination of the complainant's evidence by the support person would assist his case at a re-trial; h. it was likely the police and DPP would take advantage of a re-trial to search for evidence capable of undermining his version of events, to the extent that I had revealed it by my questioning of the complainant; i. it was likely the Crown in any re-trial would be better prepared for cross-examining him; j. he needed to make a decision on the following three issues: i. Did he wish me to apply to have the complainant recalled for further cross-examination on the support person issue? ii. Did he wish me to apply for a discharge of the jury due to the risk of contamination of the complainant's evidence? iii. Did he wish me to apply for the Trial Judge to disqualify himself on the grounds of apprehended bias? k. Mr Stevens needed to make these decisions and I would then act on his instructions; l. in my opinion the best course would be NOT to make any one of those three applications; and m. I could only make a recommendation as to what course to adopt, and ultimately the decision was for Mr Stevens to make. 9. During the 8 July conference I explained to Mr Stevens why I held the opinion that the best course would be NOT to make any one of the three applications referred to in paragraph 8(b) above. I cannot recall all of the detail about what I said to Mr Stevens in that regard. However, I do recall it took quite some time and it did include: a. advising him that I anticipated he was unlikely to be subjected to vigorous cross-examination if the present trial continued without delay; b. advising him that it was in my opinion extremely unlikely any jury would acquit him unless he gave evidence in his own defence; c. advising him that the complainant was a dangerous witness against him and the less time she spent in the witness box or in conference with the prosecuting lawyers the better; d. advising him that the Court Officer was now a contentious witness such that taking the issue further in front of the Trial Judge might prompt His Honour to disqualify himself of his own motion, thus depriving Mr Stevens of the forensic advantages of continuing with the present trial; and e. advising him that I saw minimal forensic advantage to be gained by making any of the three applications open to him. 10. during the 8 July conference Mr Stevens instructed me NOT to make any of the three applications referred to in paragraph 8(b) above. 11. The following matters influenced me in the advice I gave Mr Stevens during the 8 July conference in relation to the support person issue: a. The Crown in the present trial had adopted a very reasonable approach to my pre-trial objections to proposed prosecution evidence, which had avoided legal argument other than on the application to adduce tendency evidence. There was no guarantee a different Crown at a re-trial would adopt an identical approach. b. The complainant presented as a sympathetic and emotionally compelling witness. Any strategy ultimately aimed at challenging her credibility before a jury would carry a high risk of alienating the jury against Mr Stevens. I had a sound basis for challenging the credibility of the support person, but without more that bore no reflection on the credibility of the complainant. My strategy thus far in presenting Mr Stevens' defence did not require me to attack the complainant's credibility, only her reliability; c. The complainant was highly intelligent and capable of rapidly responding to cross-examination with answers that not only rejected propositions I put, but went further by demonstrating flaws in my propositions. My clear impression at the time I was cross-examining her was that she was a dangerous witness against Mr Stevens and the less time she spent giving evidence the better; d. The complainant did not impress me as a particularly suggestible witness, where contamination by recent witness coaching might likely be a fruitful line of inquiry; e. Recalling the complainant to give evidence on a voir dire would necessarily give the complainant the opportunity to have further conversation with the prosecuting lawyers. This carried the risk of the complainant conveying to the prosecution any further thoughts that had come to mind as to flaws in various propositions I had put to her during previous cross-examination. Even if the complainant gave no further sworn evidence, she could thus contribute to the prosecution case by providing grounds to attack Mr Stevens' own account in the witness box; f. I had no evidence that the support person had in fact coached the complainant. Rather, I could only hope I might obtain such evidence by the complainant volunteering it in answer to questions from either myself or the Crown. Even if such evidence were obtained, it would only assist Mr Stevens if there were a basis to infer such coaching had actually undermined the complainant's account in some relevant respect; g. The complainant's evidence before the jury was in almost all respects consistent with the accounts she had given to Dr Isaacs and in her police statement, both of which were provided long before the support person had any involvement. h. Pursuing any suggestion of recent invention or contamination could renew the prosecution's focus on prior consistent statements, such as those in the subpoenaed records from Sydney Hospital or any that may have been provided by the complainant to her mental health counsellor; i. The passage of cross-examination where the support person had clearly attempted to inappropriately coach the complainant provided useful material to use in my closing address, i.e. the complainant's evidence that she could not see the exit door. Providing the complainant with any further opportunity to elaborate on her responses on that issue carried a risk of reducing the use I could make of that passage of cross-examination. j. It would be a substantial forensic advantage to Mr Stevens to be able to give sworn evidence without being exposed to vigorous cross-examination, and that is what I anticipated if the present trial continued without delay. He could not expect that same advantage would present itself at a re-trial. There were features of Mr Stevens' account which struck me, as particularly vulnerable to attack under cross-examination. My impression of Mr Stevens in conference was that he responded poorly to being challenged on various aspects of his account and readily became argumentative and defensive. In my opinion he faced significant difficulties delivering his evidence in a manner likely to appear credible to a jury. He also faced a real risk, if placed under sustained pressure, of forgetting or disregarding my admonition to avoid saying something which would open the door for the Crown to re-apply to adduce tendency evidence; and k. There were avenues of further inquiry available to the police if the trial were aborted which might result in more incriminating evidence being available at a re-trial." 37Ms Moen agreed that she did not have a conference with the applicant in the basement of the Downing Centre on the morning of 11 July before trial. She could not recollect how that situation had come about. Her first contact with the applicant that day occurred when he was in the dock in the courtroom before the trial judge came onto the bench. Ms Moen gave to the applicant an unsigned copy of the document which she had prepared on 10 July. She asked him to read it and to write on the blank lines in his own words what his decision was about the three available applications arising from the support person issue. The applicant indicated that he had read and understood the document. When Ms Moen asked him to sign the document she had a vivid recollection of him becoming highly agitated and hostile towards her. Ms Moen asked the applicant whether he had changed his mind about his decision not to make any of the applications and he said that he had not. 38In her oral evidence, Ms Moen confirmed that she had written the document which became exhibit 1 (written instructions not to apply for a discharge of the jury as a result of the DNA issue). She agreed that those instructions changed on 12 July, as a result of which she did make a discharge application which was unsuccessful. 39Under cross-examination she said that in her opinion the Crown case was very strong. She agreed that the reliability of the complainant was an important part of the Crown case. She agreed that the complainant was being cross-examined as to why she got back into bed with the applicant, rather than leave the room, when she asked for a break. She thought that she probably spoke to the applicant after court on 7 July, but could not be certain. She had no notes to that effect. 40Ms Moen agreed that there was a difference in the evidence given by the support person and the court officer. She did not agree that this difference "heightened the need to cross-examine the complainant on the voir dire". She agreed that there were two conflicting versions from two people present in the remote room and that there was no version of events from the third person, i.e. the complainant. Ms Moen said that one of her concerns was that if she pursued the issue with the complainant, the trial judge might of his own motion have aborted the trial. This would have been beyond her control. 41Ms Moen said that another concern was the risk of the complainant discussing with the Crown legal advisors matters other than what happened in the remote room. Ms Moen said: "By cross-examining the complainant on a voir dire on this issue of attempted coaching I'd be going to that passage of the evidence and addressing a matter where I had some answers in cross-examination which had some use to be made in a closing address and there was the risk that the complainant may take the opportunity to provide some further explanation, which might then come before the jury depending upon what happened in the trial." (AT 19.21) 42Ms Moen agreed that the only way she could have obtained more information as to what had occurred in the remote room was to cross-examine the complainant. Ms Moen said that she had advised the applicant that the opportunity to cross-examine the complainant on the voir dire was there if he wished to take it but that he would have to consider the consequences that might flow from that. 43Ms Moen was asked why, notwithstanding the conference of 8 July and the instructions then received from the applicant, she thought it necessary to obtain further written instructions on 11 July. She responded: "I thought it necessary to have him sign a document which recorded his verbal instructions which I expected were documented by Ms Duchen. I wanted his signature on a document that reflected what his instructions were verbally in the cells on 8 July." (AT 24.3) 44Ms Duchen, the applicant's solicitor at trial, provided an affidavit and also gave oral evidence in the appeal. Her memory was not as good as that of Ms Moen. She was, however, definite in both her affidavit and oral evidence that a lengthy conference of up to an hour took place between Ms Moen, herself and the applicant after court concluded on 8 July. The transcript is consistent with the court adjourning on the morning of 8 July after the court officer gave evidence. Conclusion as to evidence 45I prefer the evidence of Ms Moen to that of the applicant. That would be my conclusion if it were necessary to make such an assessment based only on demeanour grounds. Ms Moen came across as someone who was meticulous in obtaining instructions from her clients before taking steps in a trial. This was confirmed by the evidence of Ms Duchen. 46There were, however, a number of pieces of evidence which corroborated the evidence of Ms Moen and placed doubt on the reliability of the evidence of the applicant. 47The note, which was Annexure "A" to her affidavit, is consistent with her evidence as to her discussion with the applicant on 8 July and with the document which she asked him to sign on 11 July. The email to Ms Duchen, sent at 9.38am on 9 July (Annexure "B" to her affidavit), refers to "the piece of paper handed to Mr Stevens at the end of our conference yesterday". This is consistent with her evidence that a conference took place after court on 8 July and inconsistent with the applicant's evidence to the contrary. 48Later in the email, Ms Moen says "As we discussed, I would like Mr Stevens to sign a document recording his decision not to make any applications arising from the support person issue, as well as a brief summary of the matters of which he has been advised in making that decision. I will draft that document and email the draft to you sometime tomorrow ...". That statement is fully consistent with the evidence of Ms Moen as to what she said to the applicant and his instructions to her on 8 July and inconsistent with the applicant's evidence on that issue. 49The draft document sent to Ms Duchen by Ms Moen at 6.06am on 11 July (Annexure "C" to her affidavit) is consistent with the evidence of Ms Moen and with the email of 9 July. Finally, the instructions signed by the applicant of 11 July to the effect that a discharge of the jury was not to be sought as a result of the DNA issue, is consistent with the applicant having given instructions to similar effect in relation to the support person issue. 50It follows that I approach the substantive issues in this appeal on the basis that the evidence of Ms Moen is to be accepted as to the discussions which she had with the applicant and the instructions given to her by him. Ground of Appeal 1: Counsel for the applicant erred in not cross-examining the complainant as to the extent to which the complainant's evidence had been compromised. Ground 2: Counsel for the applicant erred in not making an application for a mistrial. 51Counsel for the applicant clarified that the issue raised by Ground 1 related to cross-examination on a voir dire only. He did not rely on Ground 2 as a separate ground, but rather as one of the consequences of the failure identified in Ground 1. Counsel for the applicant accepted during submissions, that if the Court were to accept that the applicant was competently advised in relation to the support person issue and that he made a decision based upon that advice, the appeal should fail. 52The applicant submitted that the actions of the support person as described by the court officer, constituted a material irregularity in the trial, which impacted on the evidence of the Crown's primary witness. Despite this, the full extent of the irregularity remained unexplored because evidence on the issue was not taken from the complainant. The applicant submitted that given the court officer's lack of recollection in relation to an earlier incident, and the contradictory evidence between her and the support person, the true extent of any possible contamination of the complainant's evidence remained unknown. The applicant submitted that the only course available in that situation was to recall the complainant on a voir dire to determine all interaction between her and the support person during the trial. The applicant submitted that it was only after that process had occurred that an informed decision could be made by his counsel as to any application for a mistrial or to recall the complainant for further cross-examination in the trial. 53The applicant submitted that a miscarriage of justice had occurred, of the type to which Spigelman CJ made reference in MB v Regina [2009] NSWCCA 200 where his Honour said: "11 There are a number of equivalent formulations of what can constitute a miscarriage of justice: Whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open"': TKWJ supra at [26] (Gaudron J, citing Mraz v The Queen (1955) 93 CLR 493 at 514 per Fullagar J). Whether the accused received a fair trial: TKWJ supra at [17] (Gleeson CJ). Whether there is a "significant possibility that a material irregularity at the trial has resulted in the conviction": TKWJ supra at [77] (McHugh J). "[I]n the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material": TKWJ supra at [16] (Gleeson CJ). "Whether there has been a miscarriage of justice is the ultimate issue that the court must decide. Counsel's conduct is a sub-issue. Where counsel's conduct is in issue, the court must examine all the circumstances including the wide discretion that counsel, as an officer of the court, had to conduct the trial in the manner that he or she thought was in the best interests of the accused. If the court concludes that, despite that discretion, a material irregularity has occurred, it must determine whether there is a significant possibility that the irregularity affected the outcome. If it does, a miscarriage of justice will have occurred and the conviction must be quashed": TKWJ supra at [97] (McHugh J) 12 Furthermore, as Gummow J and Hayne J observed in Nudd supra at [27]: "[27] Ten acts and omissions were specified in the applicant's notice of appeal to the Court of Appeal. Several focused upon what was said to be the ignorance of counsel about the elements of the offence with which the appellant was charged and a consequent failure to give proper advice to the appellant. Others focused upon what were said to be other failures of trial counsel to give proper advice to the appellant, both for want of proper instructions and otherwise. But a failure to give proper advice to the appellant would be significant only if, as a result of that failure, something was done or not done at trial that was, or occasioned, a miscarriage of justice. For the reasons given in TKWJ, the inquiry about miscarriage must be an objective inquiry, not an examination of what trial counsel for an accused did or did not know or think about. The critical question is what did or did not happen at trial, not why that came about."" (The references to TKWJ are to TKWJ v The Queen [2002] HCA 46; 212 CLR 124.) (The reference to Nudd is to Nudd v R [2006] HCA 9; 80 ALJR 614.) 54The applicant submitted that had evidence been taken from the complainant on a voir dire, it may have indicated that her evidence at trial had been substantially contaminated by actions of the support person, not only at the time when the court officer intervened, but on earlier occasions. Since the evidence under consideration was that of the Crown's primary witness in a sexual assault case, such a circumstance would have to amount to a miscarriage of justice as variously described in the formulations to which Spigelman CJ referred in MB v Regina. This was particularly so when there was no good reason why such cross-examination could not have taken place, either on 8 July or on 11 July. 55The applicant submitted that before he was in a position to make an informed choice as to the options available to him, it was necessary to hear the evidence of the complainant on the support person issue. He submitted that it was only after that evidence was taken that a considered decision could be made. A failure by counsel at trial to provide him with that opportunity, constituted a relevant miscarriage of justice. 56I have concluded that the applicant's appeal fails on a number of bases. The first is that the asserted failure of counsel to cross-examine the complainant on a voir dire, assumes that evidence of significance would have emerged. That is by no means clear. While there was disagreement between the court officer and the support person as to precisely what words were used when the court officer intervened, there was no disagreement that the intervention prevented any actual contamination occurring. Accordingly, the only time when contamination of evidence could have occurred would have been on an earlier occasion. 57The unchallenged evidence of the support person was that she and the complainant had only been alone on earlier occasions for a "few moments" at most. She had not taken lunch with the complainant. That evidence was consistent with that of the court officer to the effect that she had intervened on a previous occasion, but could not remember the details. Since the complainant's evidence had been given over the previous two days, it is a reasonable inference that whatever had occurred cannot have been of significance, otherwise the court officer would have remembered the details. 58The strong likelihood is that any evidence adduced from the complainant on a voir dire would have been consistent with that already given by either the court officer or the support person and if so, would not have been such as to justify either a discharge of the jury, or any other action being taken in relation to it. It is but speculation to suggest that the evidence was likely to have been of a more substantial kind. 59The second basis is that the reasons offered by Ms Moen for her advice to the appellant were logical and compelling. If, as Ms Moen believed, the trial was proceeding as well as could be expected from the applicant's point of view, given the relationship between the trial judge and the court officer, if too much stress were placed on a discrepancy between the evidence of the court officer and the support person, by cross-examination of the complainant, there was a real risk that his Honour might discharge the jury of his own motion. As Ms Moen explained, there were good forensic reasons for not wishing that to occur. In a retrial the Crown would be better prepared and the advantages which had accrued for the applicant in this trial might not be repeated. 60The other reasons given by Ms Moen for her advice were equally compelling. Had she given notice of an intention to cross-examine the complainant on the voir dire, there would have been a conference between the complainant and the Crown's legal advisors. This may well have resulted in a more thorough cross-examination of the applicant, who was just about to give evidence. 61Ms Moen was clearly impressed with the complainant as a witness. She realised that there would be dangers in recalling the complainant to give evidence in the trial, even if some useful evidence were obtained as a result of the voir dire. In her considered opinion, the less time that the complainant spent giving evidence, the better. Inferentially, therefore, having heard from the court officer and the support person there was not a great deal to be gained from asking questions of the complainant on the voir dire. There remained a real issue as to how that evidence could usefully be used, if at all, in the trial. 62This was one of those cases which was envisaged by Gleeson CJ in TKWJ when his Honour said: "16 ... Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K. 17 Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice." 63McHugh J on the same issue said in TKWJ: "80 In what circumstances then, will the appellant be able to discharge the heavy burden of establishing that counsel's conduct constituted a material irregularity amounting to a miscarriage of justice? Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice. ... 81 But as R v Ignjatic shows, an accused will find it difficult to establish a miscarriage of justice when the alleged errors of counsel concerned forensic choices upon which competent counsel could have differing views as to their suitability. In Ignjatic, the accused alleged that counsel appearing for him at trial was incompetent in five respects. They were: failing to have him psychiatrically examined before the trial, failing to seek an order for separate trials, failing to object to the admission of his record of interview, calling him to give sworn evidence and failing to call his wife as a witness. Hunt CJ at CL, giving the leading judgment of the Court of Criminal Appeal of New South Wales, said that appellate intervention for the errors of counsel is not restricted to cases of "flagrant incompetence". The Court will intervene whenever any error by counsel has led to a miscarriage of justice. His Honour held, however, that neither individually nor in combination had the alleged errors given rise to a miscarriage of justice. In Ignjatic, the appellant's case was not made easier by reason of the defence having been conducted on the advice of senior counsel, experienced in the criminal law, after a "substantial" conference and on instructions from the accused. 82 It will be even harder for the appellant to succeed where counsel has made the choice because of a perceived "forensic advantage". In R v Harvey and R v Purton, the appeals failed because counsel had decided not to adduce character evidence because of the possibility that it might lead to the introduction of evidence of the accused's "bad character". In Purton, the Court of Criminal Appeal of New South Wales thought that this could be inferred because trial counsel knew that a school friend of the complainant had stated that the accused had also interfered with her." 64In this case, the reasons given by Ms Moen for advising not to cross-examine the complainant on a voir dire were reasonable and did not involve incompetence. On the contrary, as the documents she prepared illustrate, they were carefully considered and were designed to preserve a forensic advantage for the applicant. 65In the circumstances, I have concluded that no material irregularity occurred. If I am wrong in that conclusion, there was certainly no miscarriage of justice as that term is used in s6(1) of the Criminal Appeal Act 1912 (NSW) when it refers to "the judgment of the court of trial [being] set aside ... [if] on any other ground whatsoever there was a miscarriage of justice ..." 66I would grant leave to appeal, but dismiss the appeal. 67McCALLUM J: I agree with Hoeben CJ at CL 68R A HULME J: I agree with Hoeben CJ at CL.