White v R

Court of Criminal Appeal (NSW)|2017-09-01|Before: Hoeben CJ, Davies J, Bellew J

Solicitors: SJT Law (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/387951 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 13 December 2016 Before: Lerve DCJ File Number(s): 2013/387951

The facts

The applicant mostly lived by himself at a property "Lanihuli" near Barringun, which is to the north west of Bourke in far north-western New South Wales. For many years he engaged backpackers to work on his farm. The complainant is a German national, and she was a backpacker engaged to work on the farm. She was born in January 1995 and was almost 19 years of age at the time of the offences. The complainant had communicated with Amanda Walmsley, the applicant's granddaughter, by way of email and telephone. She also spoke to the applicant on the telephone before travelling to Lanihuli.
The complainant went to Lanihuli about a month before Christmas 2013. She travelled by train from Sydney to Dubbo and then by bus to Bourke where the applicant met her. When they met she held out her hand to shake hands but the applicant wanted to hug her.
The complainant stayed in her own room in the homestead. The applicant was the only other person living at the farm. The applicant would hug the complainant from time to time.
On 27 December 2013 the applicant and the complainant were at the homestead. They had lunch together. After the meal and while they were still both at the table the complainant asked the applicant what he was thinking. He replied with words to the effect of, "You don't want to know it, I love you". The applicant asked the complainant for a hug. She turned to hug him.
While the complainant was hugging the applicant he placed his hand on her buttocks. That is the conduct to which count 2 in the indictment related. Immediately thereafter the applicant touched the complainant in the region of her genitals on the outside of the shorts she was wearing. That was the conduct to which count 3 on the indictment related. The applicant then pulled down the complainant's shorts and underpants and engaged in an act of digital penetration of the complainant's vagina, which is the conduct to which count 1 on the indictment relates. It is accepted that the digital penetration was fleeting. The applicant then took the complainant's hand and placed it on his erect penis on the outside of the applicant's clothing. That was the conduct to which count 4 of the indictment related.
The complainant said that she fled from the kitchen. She managed to get the telephone from the lounge room, and she tried as quietly as possible to phone the applicant's granddaughter Amanda or his son Danny. She tried to call 20 or 30 times but they did not answer.
She then left the house. She removed the keys from the ignition of the vehicle used by the applicant and rode a quad bike, which she had previously ridden while working on the farm, to Tattersalls Hotel at Barringun where she knew there was a person named Dorothee Crawley who was fluent in German. Ms Crawley observed that the complainant was distressed. She accompanied the complainant to the police station where the complainant made a statement. Detective Tancred observed that the complainant was sobbing between words as her statement was being taken.

The course of the trial

After the Crown opened the case to the jury Mr Thompson, counsel for the applicant, made a short address. He told the jury that it was denied that digital penetration took place, it was denied that there was an assault with an act of indecency by the applicant forcibly placing the complainant's hand on his penis, and it was denied that the penis was erect.
Mr Thompson drew attention to the disparity in ages between the complainant and the applicant, and asked the jury to treat the evidence very carefully because of that. He also said that the defence case was that "some of these things did happen but that it was done at all times with the consent" of the complainant.
The complainant thereafter gave evidence consistent with what has been set out above but in greater detail.
The complainant was cross-examined. What were said to be inconsistencies in her evidence and what she had earlier said by way of complaint were put to her including that she initially said that the applicant touched or grabbed her breasts. It was put to her that at no stage did any of the applicant's fingers go into her vagina. She said that they did. It was put to her that she did not express any objection to what the applicant was doing up to that point. She agreed and said it was because she was powerless and shocked. Other matters were asked of her which appeared to be addressed to her credit generally.
The Crown called Mr and Mrs Crawley to give evidence of the complaint. Neither of them was cross-examined.
The Crown next called the officer in charge of the investigation. The officer gave evidence about a number of aspects of the investigation including evidence about the arrest of the applicant and the fact that he did not say anything after he was cautioned.
Finally, there was evidence from a senior forensic biologist who gave evidence concerning DNA. The evidence was that a tape lift had been taken from white underpants belonging to the complainant. The DNA found from the tape lift could not be excluded as coming from the complainant and the applicant. The complainant was the major contributor and the applicant was the minor contributor. The forensic biologist gave evidence about DNA transfer. She was asked to assume certain facts about the living arrangements of the complainant and the applicant, and asked to express an opinion about whether DNA transference was likely.
The biologist said that it was possible that DNA transfer may have occurred and secondary transfer may have occurred. That could happen if people were in close contact or proximity to each other and were sharing in a similar area or living together. The biologist was cross-examined by Mr Thompson suggesting ways that transfer could have taken place by touching door handles or as a result of hugging. The biologist agreed that transfer could have taken place in those circumstances.
The Crown then closed its case. The defence called the applicant's granddaughter Amanda Walmsley. Her evidence was led principally to meet the evidence of the complainant about the calls she made to Ms Walmsley's phone which were not answered. Ms Walmsley said that she did not receive any missed calls from the property on that day.
The defence also called the applicant's son Daniel White in relation to the phone calls said to have been made to him by the complainant. His evidence was to similar effect as that of Ms Walmsley.
When Mr Thompson addressed the jury at the end of the trial he first spoke about diary entries the complainant had made, about which he had cross-examined her, to suggest that what she was now alleging against the applicant was some sort of fulfilment of her concerns in her diary of being alone on a farm with a man. He also highlighted the inconsistencies in her evidence including an initial allegation made to Mrs Crawley that the applicant had groped her breast, something which she never thereafter asserted. In highlighting the inconsistencies he stressed the improbability of what the complainant had suggested took place. He said she should not be accepted as a witness of truth. He explained her appearance when she made the complaint to Mr and Mrs Crawley as someone who realised the enormity of what she had agreed to with the applicant. He stressed the applicant's prior good character.

The hearing of the appeal

At the hearing of the appeal the applicant sought to rely on three affidavits. The first was by the applicant himself sworn 20 March 2017. The applicant said that he did not participate in an interview with the police when he was charged. He recalled having a conference in Bourke with the barrister Mr Thompson early in the piece and he recalled being advised to the effect that he did not have to make a statement to the police.
The applicant referred to the fact that the Mr Thompson alone represented him for about the first 12 months and at some point he met a solicitor Mr Terry Duff. Subsequently he was told by Mr Thompson that Mr Duff was no longer to be his solicitor and that the new solicitor was Stephanie Hughes from Parkes.
In paragraph 9 of his affidavit the applicant said this: I do recall there being a conference with Mr Thompson and Ms Hughes before the trial. I cannot recall a conversation about me giving evidence at trial. I understood from Mr Thompson that he did not consider that I was a suitable person to give evidence. I assume that decision had been made for me between my son Danny White and Mr Thompson. I did think that there was a possibility I would give evidence, however I thought that it would be for Danny and Mr Thompson to decide.
Paragraphs 13 to 15 of the affidavit, to which objection was taken by the Crown, dealt with the applicant's asserted impotency as follows: 13. I deny sexually assaulting [the complainant]. What was alleged about me putting her hand onto my erect penis was impossible. I have been impotent for many years. I had not sought treatment as my marriage had broken down, I had retired to my farm, and I didn't see the point in trying to keep some sexual function when I did not have anyone to be in a relationship with. It was not something that I wanted to discuss with anyone. 14. Not long after I was charged I told Mr Thompson that I was impotent. I raised this a number of times in conference. It was never suggested that we get a report from someone about this. 15. On 9 March 2017 Dr Chris McMahon visited me at Longbay (sic) Correctional Centre. He spoke with me about my personal history, my impotence, and he conducted a physical examination. I was truthful when answering Dr McMahon's questions. I have since that visit had his report read to me. It appears to be an accurate reflection of what I told Dr McMahon. I personally consider myself to be in the high percentage of men my age who suffer from impotence and do not get any treatment for it.
Finally, the applicant returned to the issue of his giving evidence in paragraph 16 of his affidavit as follows: I have no recollection of ever saying to Mr Thompson that I did not want to give evidence. I do not recall him ever asking me if I wanted to give evidence or discussing that not giving evidence might be damaging to my case. I didn't think about the situation that if I did not give evidence the jury would not know about my side of the story and also that I was impotent. I believed I should just let my barrister run the trial.
The second affidavit was that of the applicant's son, Daniel White sworn 21 March 2017. Mr White provided some background about his father and the property where the offences took place. Mr White gave evidence of being telephoned to be told of his father's arrest and his subsequent engagement of Mr Thompson.
In relation to the applicant giving evidence, Mr Daniel White said this: 15. I did not have any idea about what the strategy was for Dad's trial. I knew that there would be people for the prosecution giving evidence, and I was aware that myself and my daughter might be called to give evidence. I did not know whether or not Dad was going to give evidence. I do not have a recollection of the topic being raised, however that is not to say that it wasn't. I just cannot recall any discussion in relation to that topic. 16. I recall being concerned for Dad. I was worried that he would not be able to hear questions properly, understand them fully and think clearly. I recall expressing to Mr Thompson my concern that Dad was half deaf, and that I was worried for how he would cope with the trial. I do not believe that I discussed with Mr Thompson the issue about whether or not Dad would give evidence. I thought that that would have been a decision for Mr Thompson.
Mr Daniel White said that having read the complainant's police statement he made notes about matters that he thought were incorrect or untrue including her claim that she had been very uncomfortable with the applicant for some weeks leading up to 27 December, the physical layout in the kitchen in relation to the opening of the fridge door, the inability of the complainant to get away from the applicant if he was holding her because of his frailty, and her assertion that she called Mr Daniel White after the incident. Mr Daniel White gave notes of those matters to Mr Thompson and said that he expected to be called to give evidence about them at the hearing.
The third affidavit was from the applicant's solicitor at the trial, Stephanie Hughes, sworn 16 March 2017.
Ms Hughes dealt at various places in her affidavit with the issue of the alleged impotency of the applicant. She also annexed to her affidavit a report from Dr Chris McMahon, a genito-urinary physician, dated 9 March 2017 dealing with the applicant's impotency problem. All of these paragraphs were objected to by the Crown. The paragraphs read as follows: 8. I understood from his instructions that sexual intercourse by way of digital penetration was denied. He also denied being capable of being sexually aroused. His instructions were to the effect that he was incapable of having any sexual arousal, and that he had suffered that condition for a number of years. … 12. On 11 September 2015, the Friday before the trial was supposed to begin, I spoke with Mr Thompson by telephone. The topic of Mr White's impotence was raised. I then spoke with Mr White by telephone. I was instructed that Mr White had not sought treatment for his impotency before the alleged offence. I discussed this again with Mr Thompson. His advice was to the effect that as no medical practitioner had consulted Mr White for his impotence before the alleged offence, there was little point in pursuing the matter further. … 24. [The complainant] did not seem to be challenged in any way about Mr White not having an erection when she claimed to be touching his penis. I was worried what might happen to the trial if Mr White were to tell the jury that what [the complainant] described was impossible because he was impotent. … 27. On reflection I felt that I was assisting a barrister in a trial on late notice, rather than instructing counsel in the best interests of my client at the time. Had I been given time to properly prepare the trial and instruct counsel of my choice I believe I would have settled the medical evidence in relation to Mr White's impotence, and, I would have prepared Mr White as a witness to be called to give evidence in his own trial.
The report of Dr McMahon relevantly says this: The information contained in this report is based primarily on information given to me by Mr. White and to a lesser extent by information contained within your letter of instruction to me, a Dubbo Hospital discharge summary dated 31 October 2014 and a patient health summary from the Dubbo Medical & Allied Health Group dated 29 January 2016. … Mr. White told me that his last attempt at sexual intercourse was a solitary encounter with a casual partner in 1991 at the age of 55. On this occasion he achieved an incomplete but sufficient erection for penetration and completion of intercourse. Prior to 1991 and in the closing years of his marriage to Rosemary, he attempted intercourse infrequently and would on each of these occasions achieve an erection of sufficient rigidity for penetration and completion of intercourse. Since his last intercourse attempt in 1991 he has not been in a sexual relationship with either a regular or casual partner, has not achieved an erection in response to sexual fantasy or during solitary pleasuring and has not experienced nocturnal or waking erections. As such he reports complete ED. He had not consulted a doctor for treatment of his ED. … Examination of his external genitals was normal in all respects. There were no overt features of a testosterone deficiency or of any neurological impairment to his penis or any other abnormality. He had a large reducible left inguinal hernia on the left side. COMMENTS ED is defined as the inability of a man to obtain and maintain an adequate erection for satisfactory sexual intercourse. Erectile dysfunction (ED) is one of the most common chronic disease affecting men and its prevalence increases with aging. It is the most frequently diagnosed sexual dysfunction in the older male population. … His description of his level of sexual function at the time of these offences is consistent with the majority of men of the same age. On the basis of the information supplied to me and of the available data on the prevalence of ED at his age at the time of the alleged offences, I am of the opinion that it was likely that he had significant ED at the time of the offence/s. This opinion is however, largely speculative and based upon the information supplied to me by Mr. White. It is however supported by the available epidemiological data.
Ms Hughes' affidavit dealt also with the issue of the applicant's giving evidence at the trial. She relevantly said this: 10. On 7 September 2015 there was a conference with Mr White, Mr Thompson and myself in Bourke. Mr White's son Danny White also attended the conference. After Mr White gave some instructions on some of the detail about what [the complainant] alleged, the trial procedure was discussed fairly briefly. Mr Thompson advised who he expected the Crown Prosecutor to be. The topic of Mr White giving evidence was then raised. Mr Thompson said something to the effect that the general rule was to not call a defendant, however sometimes it was the only way that a defendant could get some evidence before a court. It was not discussed any further than words to that effect being said. The discussion then moved to the expectation that [the complainant] would give evidence remotely, and that Danny could not be in the Court room until he gave evidence. … 16. After the trial was adjourned for the day there was a conference with Mr Thompson, Mr White and myself at the Courthouse. I recall Mr Thompson telling Mr White that the evidence in the trial had finished, and that Mr White had not been called to give evidence as his recollection was too uncertain. The burden of proof was mentioned. I made a note to the effect that Mr White was happy with not having being called to give evidence. 17. I did not know at any time whether or not Mr White would be giving evidence. The topic had been raised in my presence twice as deposed to above. … 19. There was no conference, while I was instructed, in which Mr White was taken through what might have been his evidence in chief, or, in which he was taken through what a cross-examination might be like. There was no conference in relation to the experience of giving evidence at Court. … 23. By the second day of the trial, although I was feeling embarrassed and helpless, I did not want to confide in Mr White my concern about the way that the trial was being run as I knew that this would undermine Mr Thompson, who had many years more experience than me and was a Barrister in any event. I also could not see what raising my concerns with Mr White could do to assist mid-trial. I was not comfortable to address my concerns directly with Mr Thompson as he was a Barrister of many years' experience. No formal oral and/or written instructions were taken from Mr White in my presence as to whether or not he wished to give evidence and the possible ramifications in this regard.
The Crown relied on three affidavits. The first was from the solicitor at the DPP having the carriage of the appeal brought by the applicant. She annexed copies of all file notes, letters and other documents recording instructions from the applicant that Ms Stephanie Hughes had in her possession.
One of those diary notes referred to the conference on 7 September 2015 which is dealt with in paragraph 10 of Ms Hughes' affidavit (at [34] above). That file note referred to a discussion at the conference about whether the applicant would be called to give evidence.
A further diary note on 11 September 2015, three days before the trial commenced, read as follows: Spoke to JT. He has been talking to LW + LW's versions vary substantially + and there is a lot he doesn't remember. LW impotent since 1978. I spoke to LW + he confirmed he never saw anyone about impotence in all the yrs never really told anyone until last 12 mths mentioned to a Dr in DBO. Discussed LW getting medical evidence of impotence = wouldn't be any. Only Val could give evidence to say. Been w Val 12 mths. I teleph. JT + advised. Val's evidence only goes to now, post incident = unhelpful.
The same solicitor swore a second affidavit to annex a further diary note that she had received from Ms Hughes. The diary note was dated 16 September 2015 and read: Explained evidence finished. haven't called Les to give evidence because recollection too uncertain + stressful time for Les. Pros. responsibility is to prove b.r.d our case just to raise doubt. Les happy w not being called to give evidence.
The third affidavit was from the barrister Mr Thompson.
Mr Thompson said that he forwarded an email to the then instructing solicitor, Mr Duff, on 6 July 2014 saying: Having discussed the issue with Mr White's son, Daniel White, I am of the opinion that it might be the case that Mr White is suffering from a degree of dementia such that he might not be fit to plead. Daniel White considers his father's condition to be "getting that way".
Mr Thompson advised Mr Duff to arrange for the applicant to see a forensic psycho-geriatrician and obtain a report.
Mr Thompson's affidavit discloses that the applicant underwent an MRI of the brain on 4 September 2014. The MRI report expressed this conclusion: 6mm acute lacunar infarct right centrum semiovale white matter. Mild chronic small-vessel white matter ischaemia.
Mr Thompson annexed a report obtained from Dr Rebekah Ahmed, a neurologist. That report relevantly said: At that consultation [28 February 2015] he mentioned that he had been feeling increasingly fuzzy in the head and noticed increasing memory problems over the last five years. … Over the last six months Leslie feels that his memory has deteriorated slightly and he has recently forgot (sic) one appointment and has difficulty in recalling conversations. … I repeated in-depth cognitive testing on Leslie today and on the Addenbrooke's cognitive examination he scored 82/100 (normal greater than 88) which is an improvement from his previous score of September which as 77. He was orientated to time, place and person and had good attention and language function. His visual spatial function was also reasonable however he had some difficulty in copying a cube. He lost the majority of points on verbal fluency and memory but this improves somewhat with prompting. … I think it is likely that he is suffering from sub-cortical slowing which may be secondary to small-vessel ischaemia which is present on his MRI scan, and also depression.
Mr Thompson also annexed a report from Dr Sharon Reutens, a psychiatrist. Although the report is said to be dated 30 March 2014, the report discloses that the interview for the report was 28 July 2014, and Mr Thompson said that he received the report on or about 30 March 2015.
The principal purpose of the report appears to have been to assess the applicant's fitness to stand trial. The psychiatrist concluded that he was fit to stand trial. However, she reported the following matters.
When the applicant was asked about his memory he said it was "bloody awful", but then Dr Reutens said he told her "I don't think my memory is too bad". He told her that he did not get lost, never forgot appointments and took a shopping list for groceries. He did forget people's names but thought that was a lifelong problem. He told her that he did not take any regular medications, although that is to be contrasted with the report from the neurologist which said that his medications were Citalopram (an antidepressant), Aspirin and Atorvastatin. In contrast to what the applicant told Dr Reutens about his memory, Dr Reutens interviewed Mr Daniel White who said that he believed his father had developed depression, and that in the last two years, his father made basic mistakes, for instance he had left 6 cows in a paddock. Mr White had other memory lapses, for instance he called Danny by Danny's brothers' names or Mr White's brother's names.
Dr Reutens conducted the Addenbrooke's examination (ACE-R). She reported that he scored 74 out of 100. She said that a score of less than 82 has a likely ratio of dementia of 100:1. She said the score on the ACE-R was suggestive of cognitive impairment.
Mr Thompson said this in relation to the applicant giving evidence at his trial: 16. Based on the expert evidence, what Mr White's son Daniel had told me and my own assessments during conferences with Mr White, I formed the opinion that whilst Mr White was fit to stand trial, any evidence he might give would be likely to be vague, inconsistent and/or confused. By the time of the trial I was of the opinion that I would need some persuading that Mr White should give evidence. I did not become so persuaded.
Mr Thompson said that he saw the diary entries made by the complainant as important in the defence case. His intention was that the jury would see that what she claimed had happened involved self-fulfilling conduct based on the diary entries. Mr Thompson said that the evidence of Amanda Walmsley and Daniel White would refute the evidence of the complainant that she had tried to telephone them after the incidents. He then said: [22] As described above, I had turned my mind to whether or not Mr White should be called to give evidence in his defence. From conferences with Mr White I had formed the opinion that Mr White's recollection was unreliable as to detail such that he would perform poorly under cross-examination. … [26] The defence case was that Mr White did not force the hand of [the complainant] onto his penis, whatever state his penis was in. I was of the opinion that to be able to prove that Mr White was incapable of having an erect penis would go to the credit of [the complainant] but that evidence alone would not deter the jury from reaching a Guilty verdict. I decided that Mr White's giving the necessary evidence-in-chief would place him at too much risk in cross-examination, given his cognitive frailty. [27] Ms Hughes and I had discussed Mr White's mental acuity. Ms Hughes' opinion that Mr White "was forgetful and often vague in conversation", an opinion I agreed with, was one of the reasons why I determined not to call him. … [32] It is true that I "did not consider that [Mr White] was a suitable person to give evidence". The decision was not made by me and Daniel for Mr White. As to who was to give evidence in the case I saw as a matter for me, after taking into account the expert and lay opinions available to me and Ms Hughes' views. The "possibility" as to Mr White's giving evidence was an assessment to be made at the close of the Crown case. I was almost certain that I would not call Mr White but did not want to close off the option. At the conclusion of the Crown case I assessed the evidence and decided not to call Mr White. … [50] At the close of the Crown case, for the reasons canvassed above I made a considered decision not to call Mr White. I would have judged myself as incompetent if I had called him. [51] As is evident from par. [9] of his affidavit, Mr White was aware of my concerns about his giving evidence. He "understood from Mr Thompson". We did have a conversation regarding the issue. Albeit informal, that conversation with Mr White gave him the opportunity to protest against my expressed intention not to call him. Not arguing with me I took as constituting his instructions. [52] My view is that any failure by me to advise Mr White of the ramifications of his failure to give evidence would have been relevant to me, and him, only if I wanted him to give evidence and he wished not do so. In any event, failure to advise in itself could not impact on the outcome of the trial. It is true that I did not invite him to give evidence. He was informed of the decision I had come to.
Finally, Mr Thompson set out the issues upon which he thought the jury could rely to acquit the applicant. They were the matters which he had dealt with in cross-examination, particularly of the complainant, and the matters that he addressed the jury on in his closing address.
None of the deponents of the affidavits read was required for cross-examination.

Ground 1: There has been a miscarriage of justice by reason of the incompetence of the applicant's counsel at trial failing to call the applicant at trial, failing to take the applicant's instructions as to whether he wished to give evidence and/or failing to advise the applicant of the ramifications of his failing to give evidence.

Submissions

The applicant submitted that a miscarriage of justice by reference to s 6(1) of the Criminal Appeal Act 1912 (NSW) resulted from the incompetence of his defence counsel at trial. He identified several actions, or inactions, of defence counsel which were said to have been incompetent.
The first instance of incompetence was said to be defence counsel's failure to call the applicant to give evidence. The applicant's case at trial was that the complainant had initiated or was, at least, a consenting and willing participant in the applicant's touching of her buttocks (count two) and her genital area on the outside of her shorts (count three). The applicant's case at trial was that the conduct forming the subject of counts one and four on the indictment was a complete fabrication by the complainant and did not occur.
Before this Court the applicant submitted that defence counsel put these propositions to the complainant in cross-examination but did not lead any further evidence in support of them. In this regard, it was submitted that the matters put and denied in cross-examination did not constitute evidence. The complainant, in cross-examination, did not retract or significantly alter her account. She consistently denied the propositions put to her by defence counsel that the conduct was initiated by her or otherwise did not happen.
Further, there was no independent evidence, such as CCTV footage, which might contradict her account. In those circumstances, Senior Counsel for the applicant submitted that in a direct evidence case, unless a complainant was inherently unreliable and/or implausible, to have any prospects of success an accused must call evidence challenging the account. If he did not do so the applicant's conviction was almost inevitable. There was, it was put, nothing to be lost by calling him as a witness notwithstanding the unpredictability of the evidence he would give by reason of his age, infirmity and mental condition. It was submitted that it was incompetent for trial counsel not to have done so.
The applicant submitted further that when part of the case being run on his behalf was consent for some of the acts, it was necessary for there to be evidence of his state of knowledge for the purposes of s 61HA(3)(c) of the Crimes Act 1900 (NSW).
The second way in which the applicant's counsel was said to have been incompetent was by failing to take the applicant's instructions on whether he wished to give evidence. Senior Counsel for the applicant submitted that the applicant was, in this respect, not properly advised and not given the opportunity by defence counsel. It was submitted that the matter should have been the subject of careful written instructions.
A third, and related, instance of incompetence at trial was said to be defence counsel's failure to advise the applicant on the ramifications of not giving evidence to counteract the complainant's account. The result was said to be that, without giving evidence, he would almost inevitably be convicted and that the jury would be able to reach no logical conclusion other than to accept the complainant's account.
It was submitted that counsel's incompetence was compounded by his failing to investigate further the applicant's instructions with respect to impotency and that he had suffered from erectile dysfunction for some years. It was submitted that it was incompetent for defence counsel not to have sought to call evidence in respect of the matter.
In supplementary submissions lodged, with leave, after the Court had reserved its decision, the applicant submitted that the authorities made clear that the decision whether or not an accused gives evidence is one vested in the accused and not counsel appearing for the accused. Reference was made to MB v R [2009] NSWCCA 200 at [35]-[39]; R v Smith [1999] NSWCCA 126 at [47]-[55]; and Azzopardi v R (2001) 205 CLR 50; [2001] HCA 25 at [5]-[6] and [43]. The applicant submitted that counsel did not appropriately advise the applicant concerning his right in this regard. In that way the trial miscarried.
The applicant submitted that his counsel at the trial made admissions in relation to counts two and three, and that this was done without complying with s 184 of the Evidence Act 1995 (NSW) in that the applicant was not involved in the decision to make the admissions.
The Crown submitted that the applicant's grounds of appeal involved hindsight reasoning. Whether or not they disclosed professional incompetence, relevantly they did not give rise to any miscarriage of justice. Defence counsel's decision not to call the applicant to give evidence was, objectively, rationally explicable given that his evidence might have been unreliable due to his age and the deterioration in his memory.
The Crown submitted that, in accordance with fundamental principles of criminal law, there was no obligation on defence counsel to call the applicant as a witness. As the trial judge noted in his summing up, the burden of proof rested on the Crown from first to last and he directed the jury appropriately in this regard.
The Crown submitted that defence counsel's purported failure to advise the applicant in relation to giving evidence did not give rise to a miscarriage of justice. In any event, it was clear from the affidavits of Ms Hughes and Mr Thompson that the matter was raised with the applicant. The instructing solicitor Ms Hughes made a contemporaneous file note on 16 September 2015 that "Les [is] happy w[ith] not being called to give evidence".

Consideration

In Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Gleeson CJ said at [8]-[9]: [8] …[W]here 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. [9] Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v The Queen, the applicant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.
In commenting on this passage McClellan CJ at CL (with whom Johnson J and Grove AJ agreed) said in Kho v R [2012] NSWCCA 71: [20] The Chief Justice emphasised that when the competence of counsel is raised as a ground of appeal the relevant inquiry will be as to whether the trial and its process was fair. Because the trial is adversarial litigation considerations of fairness often turn upon the choices made by counsel at a trial. As happened in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, a failure by trial counsel to call evidence, which it was later submitted would have been of assistance to the applicant, may not occasion a miscarriage of justice because, when viewed objectively, counsel's decision was rational. As Gleeson CJ said: "It is the fairness of the process that is in question; not the wisdom of counsel. ... The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct." [21] Gleeson CJ emphasised that it is not necessary that every tactical decision of counsel be carefully considered or appropriate before a trial is fair. Furthermore, in Nudd Gummow and Hayne JJ emphasised that although the conduct of trial counsel may be described as incompetent that will not of itself be sufficient to ground a successful appeal. Their Honours said 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, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial."
In R v McLean [2001] NSWCCA 58; (2001) 121 A Crim R 484 Wood CJ at CL (with whom Beazley JA and Greg James J agreed) said: [54] In these circumstances, I have come to the conclusion that this is a case where the principles discussed in Birks (1990) 19 NSWLR 677 at 685 apply. There Gleeson CJ said: "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. 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 are made without, or contrary to, instructions, or involve errors of judgment or even negligence. 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 carrying, 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". [55] In reaching this conclusion, I am also mindful of the observation of Hunt CJ at CL in Ignjatic (1993) 68 A Crim R 333 at 338 as follows: "It is not sufficient that the applicant may have merely lost a chance to raise various issues which were not raised at the trial. There was no miscarriage of justice unless it can be shown that there was at least a substantial chance that the applicant would have succeeded in relation to those issues." Earlier his Honour had observed: "Counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to which witnesses should or should not be called, what questions should or should not be asked, which lines of argument should be pursued, which points should be abandoned and which of two or more inconsistent defences should be raised are all matters within the discretion of counsel, and they frequently involve difficult problems of judgment, including judgment as to the best tactics to be adopted. Neither disobedience of instruction of instructions nor even incompetence is sufficient of itself to attract appellate intervention. It is only when the error made was of such a nature in the circumstances of the case as to have led to a miscarriage of justice that this Court will interfere."
In Nudd, Kirby J said at [64]: … In TKWJ and in Ali, this Court emphasised the importance for appellate courts, considering complaints of incompetent representation in criminal appeals, to keep at the forefront of their attention the ambit of their jurisdiction and power contained in the applicable criminal appeal statute. Those appeals are not, as such, an inquiry into the professional competence of the legal representatives of the accused. That function, if it is to be undertaken, belongs to other bodies in a hearing in which procedural fairness is assured to the legal practitioner concerned. Of necessity, the only relevance of professional competence to a criminal appeal following conviction, is how far any proved incompetence contributed to the grounds enlivening the powers of the appellate court to quash the conviction.
In the first place, it may be accepted that the decision whether or not an accused gives evidence must be that of the accused himself or herself after having received proper and appropriate advice from counsel: R v Smith at [47]; R v Szabo [2000] QCA 194; (2000) 112 A Crim R 215 at [40]; MB v R [2009] NSWCCA 200 at [35]-[39]. The matter is reinforced by r 37 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW).
However, the failure of counsel to comply with those requirements will not necessarily result in a trial which is unfair or in a miscarriage of justice: R v Birks (1990) 19 NSWLR 677 at 685; Ignjatic v R (1993) 68 A Crim R 333 at 336. As Kirby J said in Nudd, an appeal such as the present is not an enquiry into the professional competence of the legal representatives of the accused. That is a function that belongs to other bodies. The second and third complaints in the present matter ([57] and [58] above) do not, in that way even if made out, give rise to a miscarriage of justice. The enquiry about a miscarriage is confined to the decision not to call the applicant.
The evidence in the present case suggests that the barrister failed to obtain clear instructions from the applicant about the applicant's giving evidence. Rather, the barrister had formed the view, for reasons which will be discussed, that the better course was that the applicant should not give evidence.
Notwithstanding that failure, the first enquiry must be whether the decision by the barrister not to call the applicant to give evidence was, when viewed objectively, a rational decision (Gleeson CJ in Nudd at [9]), or whether it was a choice that a competent counsel could fairly make (McHugh J in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [95]).
The following matters lead to the conclusion that counsel's decision not to call the applicant to give evidence was a rational decision and one that competent counsel could fairly make: (a) Counsel had the report from Dr Ahmed, the neurologist which recorded statements by the applicant of deteriorating memory. The report also contained the results of cognitive testing demonstrating that the score achieved by the applicant placed him beneath the normal range. The report pointed partly to an organic cause demonstrated in the MRI. (b) Counsel had a report from the psychiatrist Dr Reutens who had examined the applicant and also spoken to his son. There were significant discrepancies in what each told the psychiatrist about the applicant's memory. She also conducted cognitive testing that pointed to cognitive impairment in the applicant. (c) Three days before the trial counsel's instructing solicitor noted that counsel told her that the applicant's versions of events varied substantially and that there was a lot the applicant did not remember. (d) In discussions between counsel, the applicant and the applicant's son Daniel, Daniel expressed concern to counsel that the applicant was half deaf and he was worried about how he would cope with the trial. Daniel was worried that the applicant would not be able to hear questions properly, understand them fully and think clearly. The applicant in his affidavit read at the hearing of the appeal said that he believed he should just let the barrister run the trial. (e) Contrary to the submissions made by Senior Counsel for the applicant at the hearing of the appeal, it was by no means inevitable that the applicant would be convicted if he did not give evidence at the trial. There were a number of issues where the complainant was able to be, and was, challenged and a reasonable doubt raised. These included her initial assertion that the applicant had grabbed her on the breast, something which was not maintained in her later accounts of what happened. She was cross-examined about a lack of any objection to what the applicant did, and she agreed that she had not made any such objection. There was evidence demonstrating that she had not made the calls to Daniel White and Ms Walmsley which she asserted had been made immediately after the assaults. There was the suggestion made to her that what she complained of was a reconstruction of what she had said in her diary were her parents' fears. All of these matters taken together were capable of raising a reasonable doubt in the jury's mind about the complainant's account of the events. The failure to say "No" or anything to show that the applicant's advances were unwelcome, went some distance in dealing with the issue raised as to consent.
Given what counsel knew from the medical reports, from his talking with the applicant's son Daniel and from his assessment of the applicant, and considering the material that he had to work with to cast doubt on the complainant's account of the events, it cannot be said that the decision not to call the applicant to give evidence was not a rational decision when viewed objectively.
However, the ultimate enquiry is whether, in the events that occurred at the trial, it can be said that an unfair trial resulted and that there was a miscarriage of justice.
The diary note of 16 September 2015 is not without significance. That recorded a conference held with the applicant at the conclusion of the hearing on 16 September 2015. The applicant said that he was happy with not being called to give evidence. Had he insisted otherwise, it was not too late for that to occur because final addresses did not commence until the following day. The applicant's statement that he was happy not being called to give evidence is entirely consistent with what appears in paragraphs 9 and 16 of his affidavit sworn in the present proceedings, and with the view that his son Daniel appeared to have formed about the applicant's giving evidence as disclosed in paragraphs 15 and 16 of Daniel White's affidavit. Both were content to allow the barrister to run the trial as he saw fit.
The decision whether to call the applicant in the circumstances of this case was a difficult forensic determination. With the evidence counsel knew he had in advance (the abandoned allegation of groping the complainant's breast, the non-existent phone calls, the similarity of the events to the diary entries) and the concession obtained in cross-examination that the complainant did not say no or protest the advances, it could not be said to be unreasonable, let alone irrational, not to call a client with known and medically verified cognitive impairment which affected his memory, who had given inconsistent versions of events, and whose adult son considered he (the client) would perform poorly in the witness box.
There was nothing unfair about the process. That there was neither an irrational nor even an unreasonable forensic decision points strongly against there being a miscarriage of justice. I do not consider that the decision not to call the applicant deprived him of a chance of acquittal that was fairly open: Mraz v the Queen (1955) 93 CLR 493 at 514; TKWJ at [26].
As to the issue of the applicant's impotence, it should first be noted that the complaint in the submissions concerning this matter and the proffering of the report of Dr McMahon fall outside the terms of the ground of appeal which is concerned only with a failure to advise about giving evidence and to call the applicant. If the issue is, however, considered, three things in particular should be said about it. The first is that Dr McMahon's report is not put forward as fresh evidence (which it is not), but as evidence of what could and should have been tendered if the trial had been competently conducted.
Secondly, as Dr McMahon makes clear, his conclusions were based principally on information given to him by the applicant and on the applicant's behalf. Although Dr McMahon concluded it was likely that the applicant had significant erectile dysfunction he said that his opinion was largely speculative and was based on information supplied by the applicant. Moreover, Dr McMahon said that erectile dysfunction was defined as the inability of a man "to obtain and maintain an adequate erection for satisfactory sexual intercourse". Nowhere does Dr McMahon say that the applicant was incapable of obtaining an erection as the complainant asserted he had.
The third matter is related. For Dr McMahon's evidence to have any weight at all it would have been necessary for the applicant to give evidence of the matters he told Dr McMahon. As Ms Hughes noted in her file note of 11 September 2015 there was no evidence that could be obtained to corroborate the applicant's evidence concerning his impotence prior to the events complained of. Proof that the applicant was impotent would be based solely on any evidence that he gave. The lack of any corroboration was a factor to be considered in whether the applicant's position was likely to worsen if he gave evidence about that and other matters given the medical and other evidence about the applicant's memory. The applicant faced the risk of an assertion of recent invention.
No miscarriage of justice resulted from not pursuing this matter at the trial. It can be seen from the third matter discussed above that the issue is inextricably tied to the decision of whether or not to call the applicant. The outcome may have been worse if this evidence was led for the reasons given.
In the submissions filed by the applicant after the hearing of the appeal, complaint is made that admissions were made by counsel without the agreement of the applicant contrary to s 184 of the Evidence Act. This submission is also outside the terms of the ground of appeal. The evidence filed in the appeal on both sides does not address the point. It is doubtful if any admission was made but by virtue of the complainant's concession that she did not say no nor protest what was happening, it cannot be said that any miscarriage of justice has resulted.
I would reject this ground of appeal.

Ground 2: His Honour erred by permitting the Crown Prosecutor to make a submission to the jury, which invited reasoning involving a reversal of onus.

In his closing address to the jury, the Crown said this: What are the other things in the evidence that you might think are capable of supporting what she says? She told you ladies and gentlemen that after this she stayed in Australia for some months and returned to Germany. She told you ladies and gentlemen that she came back to Australia specifically for the purpose of giving evidence to you in this trial, late last week. You might think that that choice of hers to return to Australia simply for the purpose of this Court case is a circumstance that reflects positively upon her credibility. If it was that she was and I use my friend's expression, a drama queen, you might think ladies and gentlemen that once she got home to the bosom of her family, she would reflect upon the fact that she'd been foolish in Australia and it was half a world away and she didn't need to go back and she could walk away from that moment of foolishness. That's not what she did, she came back voluntarily, she exposed herself to your scrutiny, that's an aspect of her behaviour that in my submission to you reflects very positively upon her credibility. It's something that you can rely upon I say, that acts to support what she told you.

Submissions

The applicant submitted that the trial judge erred by allowing the Crown, in his address to the jury, to resort to reasoning which involved the reversal of the onus of proof. It was submitted that this too gave rise to a miscarriage of justice.
The applicant submitted that the submission constituted the posing of the rhetorical question, why would the complainant lie. Reference was made by analogy to Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2. The applicant submitted that it was not appropriate that the distance or time that a witness has had to travel to give evidence should be capable of lending support to his or her credibility. It was an irrelevant matter which may have artificially suggested to the jury that the complainant was less likely to be lying. It also further highlighted that the applicant had not given any evidence.
The Crown submitted that it was wrong to suggest that the Crown Prosecutor's statement to the jury amounted to a reversal of the onus of proof. He made no submission to the effect of "why would the complainant lie?" Rather, given that the defence had asserted that the complainant had a motive to lie, the issue was raised in the proceedings, and the Crown was entitled to make a submission the jury in his closing address relating to the evidence of a motive to tell a lie. His submission did not go beyond the evidence.
The Crown submitted that, in any event, no objection was taken to the Crown Prosecutor's closing address. No application was made to discharge the jury. As a result, rule 4 arises for consideration and leave should be refused to the applicant because he has failed to demonstrate that he lost a real chance, or a chance fairly open, of being acquitted.

Consideration

No objection was taken by counsel for the accused at the trial to what the Crown Prosecutor said in this regard. Nor was any application made to the trial judge either to instruct the jury in any particular way or to discharge them because of any prejudice to the accused. Rule 4 applies.
It is scarcely surprising that no objection nor application was made. The complainant's credibility and even her honesty had been put in doubt by the way she was cross-examined. The Crown was entitled to comment on matters that reflected positively upon her credibility. I am unable to read the Crown's submission as impliedly posing the question, why would the complainant lie about the allegations. Nothing in the submission reflected in any way on the applicant's silence in Court or otherwise.
Where the complainant's credibility was in issue no objection could be taken to the Crown pointing out matters that reflected positively on that credibility. The trial judge accurately reminded the jury of the Crown's submission in that regard. The trial judge gave standard directions to the jury about the applicant's silence but not at a time when he reminded the jury of the Crown's submission set out at [84] above. There was, accordingly, no linking of the two matters. The trial judge made it clear to the jury that it was for the Crown to prove matters beyond reasonable doubt.
There is no analogy with what was said in the present case to the situation in Palmer. That was a case that involved cross-examination of the accused asking him to suggest reasons why the complainant might have been lying or had a motive to lie.
In South v R [2007] NSWCCA 117 Hunt AJA (with whom Simpson and Whealy JJ agreed) said: [41] In Palmer v The Queen (1998) 193 CLR 1 at [8], the majority joint judgment said: To ask an accused the question: "Why would the complainant lie?" is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused. As a matter of common sense, such an invitation is also extended to the jury where either the Crown prosecutor or the judge asks the jury the same question. [42] Where there is evidence that the complainant had a motive to lie, the jury's task is to consider that evidence and to determine whether, in the light of such of that evidence as they accept, they are nevertheless satisfied that the evidence given by the complainant of the commission of the offence charged is true. The jury's task necessarily does not include speculation as to whether there is some other reason why she would lie: Regina v Uhrig CCA 24 October 1996 [BC 9605087] at 15-16; Palmer v The Queen at [8]). Nor does the jury's task include acceptance of the complainant's evidence unless some positive answer to that question is given by the accused: Regina v F (1995) 83 A Crim R 502 at 511-512; Palmer v The Queen at [8]). [43] Both the Crown prosecutor and the accused are entitled to put arguments to the jury relating to the evidence of a motive to lie which has been asserted in relation to a witness in the particular case, and a satisfactory summing-up should include reference to those arguments: Regina v Uhrig at 16-17; Palmer v The Queen at [10]-[11]. To invite the jury to go beyond both the evidence supporting the asserted motive on which the accused relies and the evidence denying it on which the Crown relies, and to ask "Why would the complainant lie?" is to suggest to the jury that, in the absence of any other evidence beyond that on which the accused relies, they should accept the complainant's evidence.
In Brown v R [2008] NSWCCA 306 the Crown said in its closing address to the jury: "But ask yourself this, there are two important questions, why in a situation when somebody is in peril of dying and really thinking at that point that they're not going to survive, would you nominate the names of some person who was a friend of yours. Why would you nominate two people who are close friends of yours, knowing full well that if you did survive, the people that actually shot you would still be out on the loose in the community and may well come back and finish the job. Why would that person do that?"
In that case it was submitted that that aspect of the Crown's address invited the jury to reason "Why would the victim lie?" and that such an invitation fell foul of the mischief identified in Palmer. No application was made at the trial and r 4 applied.
Justice McClellan (with whom Hall and Harrison JJ agreed) said: [50] I am satisfied that there has been no miscarriage of justice. The essential difficulty with the "impermissible question" is that it potentially reverses the onus of proof either explicitly or by necessary implication. It invites the jury to accept the evidence of the prosecution witness merely because a motive for lying cannot be identified. I do not believe this has occurred in the present case. The Crown Prosecutor did not ask the jury to consider whether there was any identified motive for Mr Koen to lie. Rather he was suggesting that there was good reason why he did not lie. This is a submission of an entirely different character. It is true that he added the question "why would that person do that?" but that question was directed to the consideration that the effect of a lie was to expose Mr Koen to continuing danger. The question was not directed to a speculative motive for lying.
In my opinion, what was said by the Crown Prosecutor in the present case did not even go as far as what was said by the Crown in Brown.
In Doe v R [2008] NSWCCA 203; (2008) 187 A Crim R 328 Latham J (Spigelman CJ and Hidden J agreeing) reviewed the authorities and concluded as follows: [58] Having regard to these authorities, the following propositions emerge. Where the defence case directly asserts a motive to lie, and the issue has accordingly featured in the addresses of counsel, a miscarriage of justice may arise if the summing up gives undue emphasis to the issue of motive ("the central theme"), or goes beyond the asserted motive and poses the question at large, and the summing up does not contain full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie and that rejection of the motive does not justify a conclusion that the evidence of the witness is truthful. [59] Where there is no direct evidence of a motive to lie on the part of a central Crown witness, or evidence from which one can be reasonably inferred, a miscarriage of justice may be occasioned by :- (i) cross-examination of an accused as to the reasons why the witness would make the allegations that are central to proof of the Crown case; (ii) a Crown submission to the jury that draws attention to the fact that the defence case did not, by cross-examination of the witness, advance a motive to lie; (iii) a Crown submission to the jury which directly invites them to ask the question "Why would he/she lie?" in order to promote the acceptance of the witness as a witness of truth; (iv) a summing up that endorses or approves or fails to qualify a Crown submission falling within (ii) or (iii), or contains directions to the same effect. [60] Ultimately, whether the conduct outlined in (i), (ii) or (iii) leaves the jury with the impression that the accused bears some onus of proving the existence of a motive for the fabrication of the allegations against him/her, falls to be determined on the strength of the directions in the summing up. Full, firm and clear directions on the onus of proof, including a direction that the accused bears no onus to prove a motive to lie, may be sufficient to correct such a misapprehension. Much depends upon the particular circumstances of the case. (emphasis added)
In my opinion leave under r 4 should not be given. Nothing said by the Crown Prosecutor invited any reasoning involving a reversal of onus. Credibility was in issue and the Crown was entitled to refer to it. No objection or application was made. No miscarriage of justice is demonstrated.
I would reject this ground of appeal.

Conclusion

I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
BELLEW J: I agree with Davies J.

Amendments 12 January 2018 - Junior counsel's name entered on coversheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 January 2018

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