Holmes v R

1. [1]

   N ADAMS J: I have had the considerable advantage of reading the reasons of Chen J in draft. I agree with the orders proposed by his Honour for the reasons provided. His Honour has summarised the relevant principles derived from the decisions of the High Court when an applicant alleges a miscarriage of justice due to the incompetence of trial counsel at [56]-[62]. What is clear is that an applicant raising such a ground bears a heavy burden. For this reason, having carefully considered the conduct of the trial, I agree that grounds 1 and 3 have not been established. In relation to ground 1, the jury was directed that they could not use the prejudicial material in a way adverse to the applicant. In relation to ground 3, despite the inappropriate manner in which the applicant was cross examined by police in his ERISP, there was a forensic basis not to object to it being before the jury and the applicant did maintain his position throughout.

2. [2]

   In relation to Ground 2, the footage the subject of that ground is in a different category to the footage the subject of the complaints under grounds 1 and 3. It included considerable prejudicial material that strengthened the Crown case with no readily identifiable advantage to the defence case. I am satisfied that any slight forensic advantage that might have been obtained by failing to object to the footage being before the jury was outweighed by the considerable disadvantage to the applicant’s case by its admission.

3. [3]

   IERACE J: I have had the considerable benefit of reading the draft judgment of Chen J in this matter. Having embarked on an independent consideration of the record of the trial, I am also satisfied that it miscarried on the basis of Ground 2; that is, by reason of the admission of Exhibit 6 into evidence. I agree with his Honour’s proposed orders, and the reasoning upon which they are premised.

4. [4]

   With respect to Ground 3, I note that, although the appropriateness of the manner in which the applicant was questioned by police was not discretely a matter for determination in the appeal, the observation by Brennan J in Duke v The Queen (1989) 180 CLR 508 at p. 513, that impropriety in questioning a suspect includes “cross-examination going beyond the clarification of information voluntarily given”, remains germane.

5. [5]

   CHEN J: By indictment dated 31 March 2023, Adam Lindsay Holmes (‘the applicant’) was charged with a single count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW), an offence that was alleged to have occurred on 5 June 2022.

6. [6]

   The applicant, who entered a plea of not guilty to the charge, stood trial in the District Court before her Honour Judge N Williams (‘the trial judge’) and a jury between 26 June to 3 July 2023.

7. [7]

   On 3 July 2023, the jury returned a verdict of guilty.

8. [8]

   Following his conviction, the applicant was sentenced by the trial judge on 15 September 2023. Her Honour imposed a sentence of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months imprisonment, to commence on 3 July 2023 and expiring on 2 January 2028. The applicant is eligible for parole on 2 January 2026.

The appeal: an overview

1. [9]

   By notice of appeal filed 12 September 2024, the applicant appeals against his conviction and seeks leave to appeal against the sentence imposed upon him, raising five grounds. In relation to his conviction, the applicant’s grounds of appeal are as follows:

   1. (1)

      The trial miscarried as a result of unedited body worn video (Exhibit 4) being admitted into evidence (ground 1);

   2. (2)

      The trial miscarried as a result of unedited body worn video (Exhibit 6) being admitted into evidence (ground 2);

   3. (3)

      The trial miscarried as a result of the unedited ERISP being admitted into evidence (ground 3); and

   4. (4)

      The trial miscarried as a result of the combined effect of the unedited ERISP and the body worn videos being admitted into evidence (ground 4).

2. [10]

   Each ground of appeal relies on the ‘third limb’ of s 6(1) of the Criminal Appeal Act 1912 (NSW) – viz., that “on any other ground whatsoever there was a miscarriage of justice”. As these grounds of appeal do not involve a question of law alone, a grant of leave to appeal is necessary to raise each of them: ss 5(1)(b) and 6(1) of the Criminal Appeal Act; Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312 at [3] (‘Ahmu’).

3. [11]

   In relation to the sentence imposed upon him, the applicant’s sole ground of appeal is that the sentence imposed is manifestly excessive (sentence ground 1).

4. [12]

   It is important to note, as later explained when dealing with the applicant’s grounds of appeal, the substance of his complaints is that he was not competently represented by his trial counsel. Given each of the grounds have that contention as their focus, it should be emphasised that the applicant has been represented by different counsel on appeal.

Background: the Crown case, the challenged evidence and the course of the trial

1. [13]

   As the applicant’s challenge to his conviction relates to the unedited body worn videos and the unedited ERISP being admitted into evidence, it is necessary to summarise the matters of background across four parts: first, the evidence and the Crown case; secondly, to identify the trial issues, including the applicant’s “case”; thirdly, to describe the challenged material, and how it was received into evidence; and, fourthly, to explain how the matter was put to the jury on behalf of the applicant.

2. [14]

   The complainant was a sex worker employed at a brothel located in Clyde, New South Wales, known as “Sugar Babes” (‘the premises’). She had been working in the afternoon and evening of 5 June 2022, but finished work at around 7:00pm. The premises had a number of separate rooms, as well as common areas such as a reception, a kitchenette and a lounge area. Whilst at work, the complainant had arranged to work from her own room – room 3. The room had a bed and an ensuite.

3. [15]

   After the complainant had finished work, she ordered some food and showered. Her evidence was that she wrapped herself in a towel, lay on the bed and fell asleep.

4. [16]

   At any given time, there were a number of sex workers on the premises. When a customer attends, they are required to pay for the services in advance and they do this by paying “the receptionist, and not the girl”.

5. [17]

   On the evening in question, the person working as the “manager” or “receptionist” was Kin Wah Kwan (agreed facts at [4]). Mr Kwan went by the name “Ronald”, and he is consistently referred to by that name in the evidence.

6. [18]

   Mr Kwan commenced work at around 10:00pm. After he started work, Mr Kwan became aware that the complainant was on the premises and the manager, who was up to that time on duty, told him that the complainant “was still sleeping”. Mr Kwan knew that the complainant was sleeping because, when he first arrived, her door was closed, but not locked, and he opened the door and saw her “lying on the bed, sleeping”.

7. [19]

   The applicant attended the premises on 5 June 2022, and it was an agreed fact that he arrived at 10:01pm (agreed facts at [6]). Earlier that evening, the applicant had been at the Granville Hotel, with another male, for around three hours (agreed facts at [5]). It was shortly after leaving that hotel that the applicant went to the premises with that other male.

8. [20]

   After he started work, Mr Kwan noticed the applicant “walking around” and he later “showed him some girls”, but that did not include the complainant because, according to him, she was sleeping.

9. [21]

   It was not in dispute at trial that, at approximately 10:42pm, the applicant entered room 3 and performed cunnilingus on the complainant whilst she lay on the bed.

10. [22]

    After “about half an hour”, possibly at around 10:50pm, Mr Kwan saw the complainant’s “room is open a little bit… I saw her door opened a little bit” and, thinking that the complainant was now awake, he went in to confirm this. He pushed open her door, describing what he observed as follows:

11. [23]

    Mr Kwan confirmed his evidence that he observed the complainant to be asleep, based upon observing her face and that her eyes were closed; that she had “no response” to what the applicant was doing; and that when he called out her name, he described her waking up as “a little bit, surprise (sic), astonished”. In relation to this last evidence, the trial judge observed that “when Mr Kwan was answering that, he moved his body in a backward jerking fashion…”.

12. [24]

    The complainant’s evidence was that her first recollection, after she fell asleep, was hearing “Ronald…call my name a few times” and she woke up and there were “two men” in the room, one of which was “licking my pussy”. At this point, the complainant’s evidence was:

13. [25]

    The complainant gave other evidence that further described what occurred when she woke up: that “one of the men was licking my pussy and trying to put his tongue inside me” and, later, described the person as “licking my pussy by his tongue. How do I put it, licking pussy”. She also repeated that after Ronald had said: “‘How much and how long did you stay for?’”, the following exchange occurred:

14. [26]

    The police were then called, and they subsequently attended shortly after 11:00pm. Initially, two police officers attended – Constables Vanecek and Foti. After they arrived, they requested the attendance of a supervisor, and Sergeant Johnston attended the premises following that request at approximately 11:40pm. The applicant was arrested and taken to Granville police station.

15. [27]

    At the commencement of the trial, during his opening address to the jury, counsel for the applicant indicated that “[s]exual intercourse is conceded”. The applicant’s case at trial was that the encounter was consensual. The applicant identified this as the “only issue in dispute in this trial” – that is, whether the admitted sexual intercourse was with the consent of the complainant, or not.

16. [28]

    Given that concession, the issues for the jury were two: first, whether the sexual intercourse occurred without the consent of the complainant; and, secondly, whether the applicant knew, or was reckless as to, the absence of consent by the complainant.

17. [29]

    The Crown case, in relation to the first issue, was that the complainant was asleep, and remained asleep, when the applicant performed cunnilingus on her, and that the complainant had never met the applicant – accordingly, she did not consent to him performing that act upon her; and, in relation to the second issue, the applicant knew that the complainant did not consent to that act of sexual intercourse because he knew that she was asleep when it occurred. At this point, it is important to emphasise, from the summary of the evidence earlier referred to, that the Crown case across both issues relied not simply upon the complainant’s evidence, but also upon Mr Kwan’s.

18. [30]

    The case for the applicant, as earlier noted, was that the sexual intercourse was consensual. More specifically, the case for the applicant was that the complainant had agreed to the applicant performing cunnilingus upon her, in return for the applicant paying her $100 cash and that she feigned that she was asleep when the manager came in to the room because she had, in making that agreement and accepting payment, contravened the rules of the brothel that money could only be paid to the manager or receptionist – that is, she pretended to be asleep as she was concerned that she might lose her job for taking money from a customer directly. The applicant’s version was strongly denied by the complainant when she was cross-examined upon it and the applicant sought to rely upon evidence in the Crown case in support of his version – namely, his record of interview following his arrest, and also body worn video taken by the police when they attended the premises on 5 June 2022.

19. [31]

    On the second day of the trial, after the complainant and Mr Kwan had finished their evidence, Sergeant Johnston gave some brief evidence about the interactions he had with the applicant when he attended the premises. That evidence extended to why he decided to place the applicant under arrest; that he went through the applicant’s wallet, noting there was approximately $130 in it; as well as describing how the applicant was subsequently conveyed in a caged police vehicle to Granville police station.

20. [32]

    In addition, whilst giving his evidence-in-chief, Sergeant Johnston explained that these interactions were captured on his body worn video. That video was tendered by the Crown and admitted without objection (Exhibit 4). The video was then played to the jury.

21. [33]

    Following that occurring, and in the absence of the jury, the trial judge raised her concern about a range of issues arising from that video being played to the jury – including the fact that the applicant is seen for what the trial judge described as “an extended period of time” in handcuffs. The response by counsel for the applicant, in short, was that he had given the matter raised by the trial judge “some thought” when he had viewed the video, but considered that that matter was “balanced by the generally co-operative behaviour” of the applicant, and accordingly saw it unnecessary to raise “any concern with the Crown” – albeit submitting to the trial judge that “if your Honour was of concern (sic) about it, perhaps a direction at the end of the trial that the fact that he was handcuffed is not to be taken as anything untoward”. Her Honour, however, proposed to direct the jury “now in strong terms”, and did so.

22. [34]

    The applicant argues that the trial miscarried as a result of the tender of this video (ground 1). It will be necessary to return to some further detail about what is shown on the body worn video, the stance taken by the applicant’s trial counsel and what the applicant argues in this Court constitutes the prejudicial material that resulted in the trial miscarrying when dealing with that ground of appeal.

23. [35]

    Constable Vanecek also recorded her interactions upon her arrival at the premises. On the third day of the trial, the body worn video she took of those interactions was tendered, whilst the officer in charge gave evidence, and was admitted without objection (Exhibit 6). The video was then played to the jury.

24. [36]

    By way of summary, the video records the attendance of Constables Vanecek and Foti and includes the applicant being held in a locked room upon police arriving; a version given by an unknown worker about what apparently occurred as between the complainant and the applicant; a version given by Mr Kwan; police knocking on the door of the complainant’s room – and having difficulty in accessing it because the door was locked and the complainant and/or another worker (described in evidence as “Kylie”) who was inside declining to open the door; once the door was opened, Kylie with her arm around the complainant apparently “comforting” her, and making a number of remarks, including that the complainant had been “sexually assaulted”; and the complainant’s interactions with police including the request that they made for her to provide identification.

25. [37]

    Later, whilst the officer in charge was still giving evidence, and in the absence of the jury, the trial judge indicated that she was “a little bit troubled by exhibit 6”. Having raised that matter, counsel for the applicant agreed that the video was “put in at the request of the defence counsel”.

26. [38]

    The applicant argues that the trial miscarried as a result of this video being admitted into evidence (ground 2). It will also be necessary to return to some additional detail of what is contained in this video and to identify what the applicant argues constitutes the prejudicial material that resulted in the trial miscarrying, when dealing with this ground of appeal.

27. [39]

    In addition, further body worn video taken by Constable Vanecek was also tendered and admitted without objection (Exhibit 7). That video was played to the jury. The video depicts the inside of parts of the premises and also the police (Detective Senior Constable Starr and Plain Clothes Senior Constable Blackburn) speaking with the complainant (the video contained no sound), but the applicant makes no complaint about its tender and use.

28. [40]

    After the applicant had been taken into custody, he was interviewed by police in the early hours of 6 June 2022. The interviewing officers were the officer in charge, Detective Senior Constable Starr, and Plain Clothes Senior Constable Blackburn. An electronic recording of that interview was tendered by the Crown and admitted without objection (Exhibit 5). The recording was played to the jury, and they were also provided with a transcript of that interview.

29. [41]

    After a considerable portion of the recording had been played, the trial judge raised, in the absence of the jury, a number of concerns (the trial judge rather understatedly described that there were “some things in there which I do find surprising, if I could use an anodyne word”) about the content of the interview including: the tenor of the questioning and the implications of it (which included statements by police to the applicant such as: “The footage doesn’t lie”); the manner in which it was conducted (the trial judge considered that there was “a distinct cross-examination theme”); as well as the introduction of extraneous matters (for example, a “reference to various intimate acts being performed on people, and whether or not anyone would wake up”); as well as the aggressive way in which the applicant was challenged by Plain Clothes Senior Constable Blackburn, including at one point: “Now, let’s just, let’s just cut the crap…And just tell us how it happened, mate, ‘cause the footage doesn’t lie”.

30. [42]

    It is important to note that the Crown had offered to remove those parts that concerned the trial judge, but it was the “wish” of the applicant’s trial counsel “for the whole of the ERISP to go in” because, having viewed it, his “thoughts were that the very robust cross-examination that my client was subjected to in the ERISP interview and the very resolute responses that he gave to that would flow in his favour” and because it was anticipated that submissions would be put to the jury that the manner in which the interview was conducted “lends weight to the strength of the explanation” that the applicant provided. The applicant’s trial counsel confirmed, in response to a specific question raised by the trial judge, that “it was a forensic decision” for the ERISP to be tendered.

31. [43]

    The applicant argues that the trial miscarried as a result of the unedited ERISP being admitted into evidence (ground 3). As with grounds 1 and 2, it will be necessary to return to some of what is contained within the ERISP and to identify what the applicant argues constitutes the prejudicial material resulting in the trial miscarrying, when dealing with this ground of appeal.

32. [44]

    The applicant’s counsel raised a range of matters that were argued to warrant the jury acquitting the applicant, particularly in the context where the only issue in dispute was whether the complainant consented to the sexual intercourse. It was in that context that the applicant sought to call in aid the body worn videos and the ERISP. Thus, during the course of final submissions, the applicant relied upon that material, broadly in five ways: first, this material contained the essence of the applicant’s version that there was an agreement reached with the complainant for them to engage in the sexual intercourse upon the payment of $100, and that version was given promptly to police; secondly, the material provided some corroboration of aspects of that version; thirdly, given the manner in which he was questioned by police during the ERISP interview, the applicant remained “resolute” which was demonstrative of the likelihood that he was giving an honest and accurate account of what occurred; fourthly, as a step towards demonstrating what was argued to be the inadequacies of the police investigation; and, fifthly, in relation to the body worn video taken by Constable Vanecek that depicts the police interactions with the complainant upon their entry to room 3 (Exhibit 6), there were important visual clues from the delayed access to the room and, subsequently, what was said to be the complainant’s “body language” that were submitted to be particularly significant in assessing the complainant’s version.

33. [45]

    I expand upon each of these matters in what follows – albeit that the discussion does not precisely mirror the preceding broad overview of how the material was deployed during final submissions.

34. [46]

    First, when spoken to by police (in particular, Sergeant Johnston), the applicant “said that there’s two sides to the story, and he said that he did pay her”: when making this submission, the applicant’s counsel reminded the jury, “You saw that on the body-worn [video] of Sergeant Johnston. You saw that it was the very first thing that [the applicant] said. That is what [the applicant] has been saying ever since. His version has never changed”.

35. [47]

    Secondly, the applicant’s counsel submitted to the jury that they “might recall that the police observed in the ERISP interview that [the applicant] did not appear to be intoxicated at the time of the ERISP interview”, and that the applicant told police that he did not feel intoxicated at that time, and did not feel intoxicated at the time he was at Sugar Babes. Although, perhaps, not explicitly stated, the implication and broad thrust of that submission was that, given the applicant’s previous good character, that made it unlikely he would have acted in the way the Crown alleged. Relatedly, the applicant argued that he had money and, again, that was consistent with his “case” that he paid the complainant (in line with what had been agreed), as was the fact that the money that was found in his wallet when arrested ($130) was consistent with him having paid the complainant $100 given the funds he had at the commencement of the evening.

36. [48]

    Thirdly, the applicant’s counsel relied upon the ERISP to reinforce the probability of the accuracy of the applicant’s version in various respects. It was submitted that the police questioned the applicant “in a very robust and a very intense way”, but that the applicant “remained resolute with his responses, that he did pay her”. The fact he remained “resolute” was submitted to be demonstrative of the likelihood that the applicant “was telling an honest version of what occurred”. In fact, it was put to the jury that, given the vigorous and intense nature of the questioning by police, greater weight should be attached to his version, including his denials of what was alleged to have occurred. Furthermore, the applicant’s counsel relied upon the ERISP to demonstrate that when he told police that he obtained the money that night from a bank transfer, the police investigated that further and established what he had said about the bank transfer was correct. The applicant’s counsel also emphasised to the jury that nothing that the applicant said in the ERISP was inconsistent with what was shown by the CCTV footage from the premises “or the body-worn footage”, and that the questioning by police about the applicant not sitting on the lounge was based upon a misunderstanding of the CCTV footage which, contrary to what was suggested by police to the applicant, in fact demonstrated that the applicant did on occasions sit on the lounge.

37. [49]

    Fourthly, the applicant was “clear” in the ERISP “that there was an agreement in relation to the sexual activity that was to take place, and he told the police that she placed the hundred dollars somewhere near the bedside table”. The submission was directed not only to the fact that the applicant had given a clear and consistent version to police, but also to a further one – namely, that at that point of the interview, it should have been apparent to police that if that money had been paid to the complainant, there would have been “consent existing between them” and they should have gone back, if they had not already attended to this, to determine whether that transaction had in fact occurred. That is, to ascertain whether there was money in the complainant’s possession consistent with the applicant’s version. The fact that the police did not undertake that further investigation to determine this was argued by the applicant’s counsel to be “nothing short of a woefully inadequate investigation” and was a matter that the applicant’s counsel submitted “should cause you significant doubt about the complainant’s version”.

38. [50]

    Fifthly, the applicant’s counsel submitted that the complainant’s “body language” when she speaks to police and they requested some identification from her was “extremely telling”: it was submitted that the complainant walked down to the end of the bed to pick up “a black object” – presumably her purse – “pulls out her license and then places that object back down behind the bedhead and brings only the license over towards the police”. The applicant’s counsel submitted to the jury that “you might think that she was worried that if the police saw that $100, they might believe [the applicant] rather than her”. Furthermore, it was asked, rhetorically, why the complainant took so long to open the bedroom door, again implying that the jury should look carefully at the complainant’s presentation. The reference to when the applicant speaks to police, and the delay in the complainant opening the door when police were knocking upon it, is a reference to what occurs in room 3 as shown in Exhibit 6, being the body worn video of Constable Vanecek.

The conviction appeal: introduction

1. [51]

   As is apparent from the overview of the trial, the applicant’s trial counsel made decisions that either allowed the Crown to tender the now challenged material without objection or required that material to be tendered by the Crown – ostensibly to secure a forensic benefit for the applicant. By each ground of appeal, the applicant argues that those decisions were not objectively rational ones given that they permitted damaging and prejudicial material to be put before the jury, such that a miscarriage of justice resulted by its receipt – alone or in combination.

2. [52]

   Before dealing with the grounds of appeal, it is necessary to outline the relevant legal principles.

3. [53]

   As earlier noted, the applicant relies upon the ‘third limb’ in s 6(1) as the ground upon which his conviction should be set aside – namely, “on any other ground whatsoever there was a miscarriage of justice”. A miscarriage of justice within that section includes any departure from a trial according to law to the prejudice of the accused (Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 at [41]); or “[a]ny irregularity or failure to strictly comply with the rules of procedure and evidence” (GBF v The Queen (2020) 271 CLR 537; [2020] HCA 40 at [24]); or, absent demonstration of error, “something occurred or did not occur” in the trial that deprives the trial of its fairness (TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [30] (‘TKWJ’); Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [54] (‘Baini’)). The categories are, however, neither fixed, nor closed given that “miscarriages of justice may occur in many circumstances and may take many forms”: Baini at [25]. The fundamental question is whether a miscarriage of justice has occurred: Gallagher v The Queen (1986) 160 CLR 392, 395; [1986] HCA 26.

4. [54]

   Here, the miscarriage of justice that is said to have arisen relates to the way that the applicant was represented in the Court below; more particularly, the common thread to each of the grounds of appeal is the contention that the applicant was incompetently represented by his counsel with the consequence that, in the particular ways raised by each of the grounds of appeal, the acts of his counsel relating to the challenged material was capable of affecting the trial (see the discussion in [134], below). A miscarriage of justice involving conduct of that broad kind – namely, that “an accused person is not competently or adequately represented” – is within the third limb of s 6(1): TKWJ at [23]; R v Birks (1990) 19 NSWLR 677, 684-685 (‘Birks’). To be clear: the conduct of trial counsel is “relevant to the issue, but the issue [is] whether there was a miscarriage of justice”: Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [2] (‘Nudd’); TKWJ at [24]-[25], [79].

5. [55]

   Again, as the miscarriage of justice relates to the way in which the applicant was represented in the Court below, the “ground” within s 6(1) is that there has been an irregularity by that representation (by the conduct that underpins each of the grounds of appeal) and an unfair trial, with a miscarriage of justice being the result: Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at [18] (‘Ali’); TKWJ at [25] (where the conduct of counsel, in this situation, was described as contributing “to a defect or irregularity in the trial”) and [77] and [79] (where the conduct of counsel was similarly described as “irregular conduct” or an “irregularity”).

6. [56]

   When the focus of a ground of appeal alleging a miscarriage of justice is the incompetence of trial counsel, it has been said that an applicant raising such a ground bears a “heavy burden” (TKWJ at [74]) and that “the courts are extremely cautious” about intervening: Birks at 684. That caution is informed by the recognition that what constitutes a miscarriage of justice in this situation must “be considered in the light of the way in which the system of criminal justice operates” – namely, that a criminal trial is adversarial and that, generally speaking, an accused is bound by the way the trial is conducted by their legal representatives: Birks at 685. Thus, it “is not a ground for setting aside a conviction that decisions made by counsel… involve errors of judgment or even negligence”: Birks at 685; TKWJ at [79]. To that same end, other matters of that broad kind will not amount to an irregularity and an unfair trial, as Gleeson CJ explained in TKWJ at [16]:

7. [57]

   In cases such as the present, where the miscarriage of justice is said to result from what happened during the course of the trial, the Court is necessarily invited to assess the circumstances in which the acts occurred (here, not objecting to, or seeking the tender of, the challenged material in an unedited form), and to assess why that occurred. In undertaking that task, whether the conduct of trial counsel “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” or what was described as “the objective features of the trial process”, albeit that this investigation was expressed to be subject to limited exceptions: Nudd at [9]-[10], [17]; TKWJ at [17], [27] and [110]. None of the possible exceptions referred to in those decisions are, or were suggested to be, presently relevant, and need not be considered further.

8. [58]

   Some further matters warrant emphasis in connection with tactical decisions that seek to secure a forensic advantage to an accused, or avoid a forensic disadvantage to them, that are said to contribute to an irregularity and a miscarriage of justice.

9. [59]

   First, the fact that the course adopted by trial counsel “is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration” as to whether a miscarriage of justice has resulted: TKWJ at [25] and [28]. However, it has also been said that if there could be a reasonable explanation for the course adopted at trial, then “it follows”, given the “fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred”: Ali at [25]; Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33 at [49]. That follows because “[r]ational forensic decisions or strategies of trial counsel, determined objectively, do not give rise to a miscarriage of justice”: Hughes v R [2018] NSWCCA 2 at [62], citing Ahmu at [34]. (There is, in the statement of the first and second matters, a difference, or potential difference, in emphasis that ultimately may turn upon the reasonableness of the act or omission or whether it is objectively a rational one. It is not necessary in the circumstances of the present case to address this issue further given the conclusion that I favour).

10. [60]

    Secondly, the appeal court “does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis”: TKWJ at [27].

11. [61]

    Thirdly, even if the course adopted by trial counsel was taken to secure a forensic advantage for an accused, the question is whether “the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude” an appeal court from concluding that a miscarriage has resulted: TKWJ at [28]. (As with the first matter, there may be a question about how this reconciles with what was expressed in Ali at [25], and the decisions of this Court that have followed it. Given the conclusion I favour, it is unnecessary to address that question further).

12. [62]

    It is necessary to say something about the applicant’s approach. The applicant’s submissions approached two of the grounds on the footing that the challenged material was “prejudicial”. For example, in relation to ground 1, the applicant argued that the body worn video (Exhibit 4) was “prejudicial”, that the video contained “prejudicial information” and that, in the result, “significant prejudice” was occasioned by the admission of the evidence (applicant’s submissions at [15], [21] and [22]). And, by way of further example, in relation to ground 2, the applicant argued that the body worn video (Exhibit 6) contained material that was inadmissible and “prejudicial” (applicant’s submissions at [24]). It is important to emphasise, however, that the use of “prejudice” and “unfair prejudice” in the present context does not concern issues of admissibility of the evidence and, in particular, the exclusion of evidence of that kind – which is covered by s 137 of the Evidence Act 1995 (NSW) (the section that deals with where the probative value of evidence “is outweighed by the danger of unfair prejudice to the defendant”). Rather, in the present situation, the factual enquiry has, as its focus, the risk that otherwise inadmissible evidence would be misused by the jury in its deliberations thereby leading to a miscarriage of justice. It is the risk of that kind that is the prejudice to which the applicant’s submissions must be understood.

13. [63]

    I turn now to address the applicant’s grounds of appeal.

Ground 1: the trial miscarried as a result of the unedited body worn video (Exhibit 4) being admitted into evidence

1. [64]

   By this ground of appeal, the applicant argues that the trial miscarried by the admission into evidence of the unedited body worn video taken by Sergeant Johnston on the evening of 5 June 2022: particular parts of that video were argued to be self-evidently prejudicial (applicant’s submissions at [15]).

2. [65]

   Before dealing with the substance, and individual parts, of the applicant’s overall submission, it is necessary to refer briefly to how the material came to be adduced into evidence and, thereafter, to identify the particular parts of the video argued to be prejudicial.

3. [66]

   As earlier noted, the complainant and Mr Kwan completed their evidence shortly prior to lunchtime on the second day of the trial. At that time, the Crown indicated to the trial judge that the next witness was Sergeant Johnston and that it was proposed to show the body worn video taken by him at the time he attended the premises. Following the luncheon adjournment, the trial judge enquired as to whether the applicant was cautioned before, or during, the video, and counsel for the applicant (and the Crown) confirmed that the applicant “was cautioned”. The Crown also advised the trial judge that the “footage does depict the [applicant] being loaded into the police car as well at the time”, and in response to a specific question directed to him by the trial judge, counsel for the applicant confirmed that he did not “have a problem with that”.

4. [67]

   Sergeant Johnston was then called to give evidence and during the course of his evidence, the body worn video was tendered and admitted without objection. The body worn video was then played to the jury.

5. [68]

   After it was, the trial judge, in the absence of the jury, raised some concerns about the content of it – in particular, “any prejudice” resulting from the jury observing that the applicant is seen to be handcuffed, is sitting handcuffed “for an extended period of time” and is “unceremoniously bundled into what we used to call a paddy wagon”. In relation to these matters, counsel for the applicant made the following submission to the trial judge:

6. [69]

   Notwithstanding that counsel perceived “no difficulty” with the video being shown, the trial judge nevertheless indicated that she proposed to direct the jury immediately “in strong terms”.

7. [70]

   The trial judge also raised her concern about the “reasonable amount of suspicion attaching to the allegations that warranted his arrest”, which her Honour considered to be “problematic”. The Crown and counsel for the applicant advised the trial judge that it was not in dispute that Sergeant Johnston had not spoken with the complainant, only to “other police officers”. (The significance of this last matter did not emerge during the exchange, but it was possibly suggestive of the fact that any “reasonable suspicion” that Sergeant Johnston had might be lessened by the manner in which he was informed of the allegations). The Crown indicated that Sergeant Johnston could, in his further evidence-in-chief, be asked questions to “clarify” why the applicant was arrested. Counsel for the applicant confirmed with the trial judge that he did not “have a problem” with the Crown asking those further questions on that topic.

8. [71]

   Given the position taken by the applicant’s counsel, the trial judge indicated that she would direct the jury in connection with the fact that the applicant was observed in handcuffs, which her Honour subsequently did in the following terms:

9. [72]

   Immediately following that direction, the trial judge invited counsel for the applicant to indicate whether he sought further directions, and he indicated that he did not. The trial judge, it should be noted, essentially repeated the direction when Sergeant Johnston completed his evidence.

10. [73]

    The applicant relied upon the following parts of the body worn video to justify this Court finding that they were self-evidently prejudicial (applicant’s submissions at [14]):

    1. (1)

       The applicant is seated in an area where, it is submitted, he was “detained”, and then directed by Sergeant Johnston to “[c]ome this way. Come this way” – a direction he complies with, resulting in him being “[s]urrounded by three police officers” and told to empty his pockets. This commences at 22:43:28.

    2. (2)

       The applicant is placed under arrest by Sergeant Johnston. This occurs at 23:45:12.

    3. (3)

       The applicant is placed in handcuffs and searched by Sergeant Johnston. This occurs at 23:46:22.

    4. (4)

       The applicant and Sergeant Johnston engage in an exchange involving accusations that each is being “judgmental”. This occurs at 23:47:18.

    5. (5)

       The applicant is shown to be handcuffed by police. This occurs at 23:48:18. (I would add: there are a number of passages in the video before this point that clearly depict the applicant in handcuffs).

    6. (6)

       The applicant complains to police of “others taking photo[s] of him”, but the police take no “obvious action” about this. This occurs at 23:48:36.

    7. (7)

       The applicant is asked by police to sit. This occurs at 23:48:54.

    8. (8)

       Sergeant Johnston counts the money that was within the applicant’s wallet and again, at this point, the applicant can be seen in handcuffs. This occurs at around 23:49:44.

    9. (9)

       The police officers present engage in a discussion about transporting the applicant to a police station (extending to a discussion about what will occur at the police station given he was under arrest). This commences at around 23:49:50 and continues until around 23:51:49.

    10. (10)

        The applicant is walked out of the premises by police, which commences at 23:51:51. Sergeant Johnston says to the applicant at 23:51:56: “I’m going to grab hold of you”.

    11. (11)

        The applicant is placed into the rear of a caged police vehicle, which is then locked. This occurs at around 23:52:54.

    12. (12)

        After the applicant had been placed into the rear of the police vehicle, police were approached by a person who identified themselves as the applicant’s “employer”, but Sergeant Johnston advises that person that he was “not at liberty to discuss” matters with him. This occurs at around 23:53:22.

11. [74]

    As is apparent from what has been set out above, the parts of the body worn video which were argued to be self-evidently prejudicial cover those parts of the video that depict: (a) the applicant being detained in an area; (b) the applicant being placed in handcuffs and arrested; and, more generally, (c) the applicant otherwise being treated in a manner that readily permitted an inference that he had committed the offence. This material, the applicant argued, given its nature, caused the trial to miscarry – notwithstanding that the decision to permit the tender of the material in that form was the product of a forensic choice by the applicant’s trial counsel and despite the fact that the trial judge gave a direction to the jury to deal with aspects of what was shown in that video (applicant’s submissions at [15], [21]-[22]).

12. [75]

    The applicant argued that such a conclusion should be reached based upon the following two inferences that were submitted to necessarily follow from the video viewed as a whole: first, they sent a “very clear message” that the applicant “has actually committed this offence and his version can be given little weight”; and, secondly, that the footage “clearly conveys that he is a dangerous criminal who needs to be restrained by handcuffs and caged vehicles” (applicant’s submissions at [15]-[16], [21]).

13. [76]

    The applicant, whilst acknowledging that trial counsel made a forensic decision to allow the totality of the footage to be played so as to demonstrate the applicant “behaving in a generally co-operative manner” and accepting that, ordinarily, in such circumstances, the applicant would be bound by the conduct of their counsel, nevertheless submitted that the course adopted caused the trial to miscarry: that conclusion, it was argued, should follow because, “[v]iewed objectively the advantage to be gained paled into insignificance when compared with the prejudicial effect of the evidence” (applicant’s submissions at [21]).

14. [77]

    Although it may be said that the decision by the applicant’s counsel not to object to the challenged parts of the body worn video was somewhat surprising and, given the jury’s verdict, possibly unwise, I do not consider that, in the particular circumstances of this case, the challenged parts of the body worn video led to the trial being unfair and a miscarriage of justice. I will explain why, in what follows.

15. [78]

    The applicant advanced three matters that were argued to establish “prejudice” or unfairness to the applicant based upon the admission of this video: being detained in an area, being placed in handcuffs and being arrested.

16. [79]

    In relation to the applicant being “detained in an area”, in my view, that is not readily apparent from the body worn video. This can be seen when Sergeant Johnston arrives, activates his body worn video and then opens a door at 23:43:27. After the door is opened, the applicant is seen sitting on a bench styled seat. There is no suggestion that the door is locked or that he has been detained in this area. (Other evidence, later tendered, establishes this I would add). Consistent with this, when Sergeant Johnston gave evidence, he described seeing the applicant “in the hallway”. He did not suggest that the applicant had been detained in a room or area. Thus, I do not consider that this was a matter creating any unfairness.

17. [80]

    The position is, however, different in relation to the applicant being placed in handcuffs, arrested and placed in the police vehicle: these matters are clear from the video and, in fact, in relation to the applicant being placed in handcuffs, this is seen repeatedly during the course of it. However, in relation to these matters, the trial judge directed the jury, twice: see [71]-[72], above. In the circumstances, particularly given the forensic decision adopted that allowed, without objection, the unedited body worn video to be adduced into evidence, and the fact that directions were given about these matters (on several occasions) and no further directions were sought by the applicant’s trial counsel, I am unpersuaded that any “prejudice” or unfairness arose.

18. [81]

    Although the applicant acknowledged that there was an identifiable forensic benefit that explained why no objection was taken by the applicant’s trial counsel to the tender of the unedited version of the body worn video, to the effect that it demonstrated the applicant’s “co-operative behaviour” during the course of his interactions with police, in my view, as the Crown submitted, the forensic benefits were appreciably wider. They extended not merely to providing an evidential basis for a submission to the jury that the applicant had been “co-operative” in his interactions with police (and thus they could more readily infer that he was telling the truth), but also to the following matters: the applicant gave an early account of his version to Sergeant Johnston to the effect that there was an agreement reached with the complainant to engage in the sexual intercourse (a matter that was given some prominence during the course of final submissions to the jury, to the effect that the applicant gave an early and consistent version of what occurred: see [46], above); that the applicant told police that, consistent with that agreement, he had money in his wallet (that was provided to Sergeant Johnston, who is seen counting the money contained within the applicant’s wallet) and that there was no reason for him not to pay for the services; and that, despite his account, the police were showing signs (or early signs) of bias from the initial part of their investigations. Understood in that way, there is some rational basis, I consider, for all the body worn video to be admitted into evidence that included the challenged parts. In saying that, it should be emphasised that it is not for this Court, accepting that there is some rational basis for the forensic decision adopted, to second-guess why the applicant’s trial counsel did not endeavour simply to adduce these matters in cross-examination of the Crown witnesses including Sergeant Johnston.

19. [82]

    The applicant also submitted that “[n]o efforts were taken to edit the exhibit to remove the most prejudicial information or to lead the required information… through another form” (applicant’s submissions at [21]). I do not accept that submission. It is clear, upon review of the trial record, that the applicant’s trial counsel had no objection to the material; in fact, he thought that, overall, it assisted the applicant’s case. Given those circumstances, it is not, in my view, open to outflank the adopted position by suggesting that in some way the exhibit should have been edited or the evidence led in chief only.

20. [83]

    The applicant, whilst acknowledging that directions were given by the trial judge, submitted that the attempts by the trial judge “to remedy the situation by direction did not cure the miscarriage” because the jury was left with a “prolonged, not fleeting, visual picture, of the [applicant] being restrained in handcuffs, escorted under police hold and then placed into a caged vehicle”, with the consequence that the applicant was denied a chance of an acquittal that was reasonably open to him (applicant’s submissions at [22]). I disagree: I consider that the directions given were, in the circumstances, sufficient and clear. To the extent that the submission suggests that further directions were needed, I disagree, for the above reasons and also because the fact that no further direction was sought at trial practically demonstrates that there was no significant risk of the jury not acting in accordance with the direction given. I would also note that the applicant did not formulate a direction, or further direction, to deal with what was argued to be any residual unfairness.

21. [84]

    Further, the applicant submitted that, whilst acknowledging that the applicant’s trial counsel did not seek any additional direction, the trial judge failed to address “the issue concerning [Sergeant Johnston’s] view that there was a reasonable amount of suspicion attaching to the allegation nor of the police apparently not giving [the applicant’s] version any weight” (applicant’s submissions at [18]). I do not accept this submission. That is because it is clear from the direction that the trial judge gave to the jury that the subject matter extended to the applicant’s arrest: that, I consider, is readily apparent from the direction where the trial judge refers to Sergeant Johnston placing the applicant “in handcuffs and arrest[ing] him and put[ing] him in the paddy wagon”, and directing the jury that they were “as a matter of law not to draw any adverse inference against the [applicant] because that happened”: see [71], above.

22. [85]

    For those reasons, I would dismiss this ground of appeal.

Ground 2: the trial miscarried as a result of the unedited body worn video (Exhibit 6) being admitted into evidence

1. [86]

   By this ground of appeal, the applicant argues that the trial miscarried by the admission into evidence of the unedited body worn video taken by Constable Vanecek on the evening of 5 June 2022. The applicant’s ultimate submission was that the video contained “several pieces of prejudicial and inadmissible evidence” resulting in a miscarriage of justice given the jury was “not provided with any assistance or direction as to what they could or could not do with any of this concerning evidence”, and the position was not otherwise simply because the applicant’s trial counsel did not object to its tender – indeed supported the admission of the material for a stated forensic purpose (applicant’s submissions at [24], [26] and [28]).

2. [87]

   The Crown, by way of response, accepted that there were a number of representations in the video that were inadmissible – but only if objection were taken – and, further, the video itself was not “prejudicial” and no miscarriage of justice arose by its admission into evidence (Crown submissions at [71]). Further, as part of its argument that no miscarriage of justice arose, the Crown submitted that the position taken by the applicant’s trial counsel was a reasonable one in light of the evidence, and issues at trial (Crown submissions at [72]).

3. [88]

   Before dealing with the applicant’s arguments, it is necessary to explain how the body worn video came to be adduced into evidence and to expand upon the earlier summary of the video (see [36], above) in order to identify the particular parts of the video argued to contain the offending material.

4. [89]

   After Sergeant Johnston’s evidence, Detective Senior Constable Starr, the officer in charge, was called to give further evidence: he gave some brief evidence on the first day of the trial, before the complainant, Mr Kwan and Sergeant Johnston were interposed, essentially about the layout of the premises and to prove a floor plan of the premises (Exhibit 2) and nine photographs taken within it (Exhibit 3).

5. [90]

   Detective Senior Constable Starr then gave evidence about Constable Vanecek attending the premises on the evening and that she secured body worn video when she did. That body worn video was played to the jury and admitted as Exhibit 6, without objection.

6. [91]

   Detective Senior Constable Starr’s evidence continued until morning tea at which time, in the absence of the jury, the trial judge raised her concerns about the content of the video, as follows:

7. [92]

   Given the applicant accepts that the tender of this video was not objected to by the applicant’s trial counsel, seemingly based upon a forensic decision, it is presently relevant to note the following two matters about the above exchange. First, the thrust of the concern expressed by the trial judge related to “people saying things about allegations in there”, and the material so described being inadmissible. The applicant’s trial counsel partly responded to those concerns by submitting that there was a “very good reason why the comments by the other worker with the longer black hair” (described in the evidence as “Kylie”) was relevant to the applicant’s overall case, and that he had asked for that part of the video “to remain in” because it was suggested to be “relevant to some cross-examination” of the officer in charge and he wanted that evidence “in to address” the jury on in due course. That response, such as it was, was a partial one only: the “people saying things” extended well beyond what was said by Kylie, but to numerous others. Secondly, having provided the trial judge with that response, her Honour specifically took up with the applicant’s trial counsel a wider proposition – namely, whether the “otherwise inadmissible [evidence] has been put in at the request of the defence counsel” and, as is apparent from the exchange, the applicant’s trial counsel agreed that it was.

8. [93]

   It is, I consider, important to carefully examine the content of this video in order to assess whether it contains prejudicial and inadmissible material, as the applicant argued, as well as to understand and assess the suggested forensic utility of it being played to the jury, as asserted by the applicant’s trial counsel.

9. [94]

   The video may, conveniently and broadly, be divided into three parts. The first part essentially deals with the arrival of the police, including what was said and by whom in the short period of time they were in the reception area of the premises. The second part deals with Constable Foti attempting to locate the complainant and then access room 3. The third part deals with what occurred once the door was opened, and the police entered room 3.

10. [95]

    The focus, in what follows, is upon aspects of the video that the applicant argues constitutes the prejudicial and/or inadmissible material contained within Exhibit 6.

11. [96]

    The first part of the video covers the arrival of police, at around 11:15pm, and what happened immediately upon accessing the premises.

12. [97]

    Following the arrival of police, Constable Vanecek activated her body worn video and they entered the premises. Once inside, an unidentified woman stated that the applicant was “trying to leave”. The police were taken to a door where it is apparent (in part informed by what was shown on Sergeant Johnston’s body worn video which had already been played to the jury) that the applicant was “being detained in a room”. Constable Foti twice asked why the applicant had been detained (“why is he in that room?”). This occurs between 23:16:23 and 23:16:45.

13. [98]

    Constable Foti then invited Mr Kwan to explain “what happened”, and he provided an explanation (in terms that were largely consistent with the evidence that he gave during the trial), during which two unidentified women interrupt stating: “while she is asleep” and “she didn’t even know he was in there”. This commences at around 23:16:45 and continues until around 23:17:10.

14. [99]

    The second part of the video involves Constable Foti attempting to locate the complainant (“well, where is she?”) – to which there is an immediate response by an unidentified woman: “she’s crying in her room”. This occurs at around 23:17:14.

15. [100]

    When police are directed to room 3, an unidentified female knocks on the door and encourages the occupants to open the locked door. Constable Foti identifies that it is “the police” wanting to speak with her. She requests the door be opened and twice states that the complainant is “not in trouble”. At one point, Constable Foti forcibly kicks the door in a “knocking fashion” to encourage the door to be opened. These events commence at around 23:17:51, and the door is finally opened at 23:18:50.

16. [101]

    The third part of the video covers what occurred once the door to room 3 was opened, and police enter it.

17. [102]

    When the door is opened, the complainant is seen with a person known as “Kylie”. Kylie is standing behind the complainant and has her arms around her – seemingly to console her. Constable Foti repeatedly asks the complainant: “what’s happened?”. Despite the question being directed to the complainant, Kylie (who still has her arms around the complainant) responds: “This fucking piece of cretin, the door was not locked and he came into her room and sexually assaulted her OK. Don’t tell her again she’s not to know anymore”. This occurs at 23:19:17. Kylie may fairly be described as in a highly emotional state and, having declared what “occurred”, continues embracing the complainant, and one of her arms can be seen covering the complainant’s face.

18. [103]

    Constable Foti then asks Kylie to leave the room: “Do you mind just exiting?”. As Kylie leaves the room, she turns and says to the complainant: “It’s your prerogative to say yes or no”. This occurs in the period up to 23:19:46.

19. [104]

    The complainant says – or agrees with police – that the person “licked her” and she told police that he licked her “pussy” and that she was “sleeping” when this happened. This occurs between around 23:19:50 and 23:20:25.

20. [105]

    The complainant is requested to provide some identification to police and retrieves that from a black bag behind the bedhead. This occurs at 23:20:40.

21. [106]

    Constable Foti says: “What’s happened to you is not good”. This occurs at 23:21:49.

22. [107]

    With that summary of the body worn video, I turn now to deal with the applicant’s arguments about why its admission resulted in a miscarriage of justice.

23. [108]

    The applicant directed a number of arguments towards particular parts of what was shown in the video in order to secure a finding from this Court that the video contained not only inadmissible, but unfairly prejudicial, material.

24. [109]

    The applicant’s first argument was that the statement by the unidentified woman that the applicant was “trying to leave” was inadmissible (see [97], above), and the depiction and subsequent discussions making it plain that the applicant had been detained in a room, created unfair prejudice because it conveyed or suggested that “the applicant was trying to leave the premises”, giving rise to the need to detain him in a room (applicant’s submissions at [24]).

25. [110]

    The statement by the unidentified woman was plainly inadmissible as hearsay, as the Crown accepted. However, the evidence was not objected to. The Crown submitted that, given no objection was taken to the statement, the evidence (the statement and, in effect, those parts of the video showing he was detained) was not unfairly prejudicial. In furtherance of that last submission, the Crown argued that there was an objectively rational explanation for why no objection was taken: the applicant did not contest that he did seek to leave the premises, but did so after he had been threatened (Crown submissions at [73](a)).

26. [111]

    In my view, it would be open for the jury to accept that the applicant was detained as he was attempting to leave the premises after he had done something wrong. That, I consider, is readily apparent, and the natural inference, from a consideration of the context: the fact that he was detained in the room was evident from the interactions between Mr Kwan and Constable Foti, and the explanation for it was discussed by them as being that the applicant had “not paid”: see the exchange at around 23:16:40. This was the culmination, it will be recalled, to Constable Foti asking: “why is he in that room?”. Thus, in that context, but also when the totality of Exhibit 6 is considered, it is difficult to conceive of what other inference is reasonably open to draw.

27. [112]

    The fact that the applicant did not contest that he tried to leave the premises is not, in my view, responsive to why he was – or for some reason needed to be – detained at the premises, as the Crown argued. To put the point a little differently, and from the forensic viewpoint of the applicant, that the applicant sought to leave the premises after being threatened is an explanation for that conduct of which being subsequently detained in a room forms no part: there is no suggestion that the applicant sought to be detained for protective reasons or that the detention was for that purpose.

28. [113]

    It is appropriate at this point to deal with Mr Kwan’s evidence, and the Crown’s submissions about what he said whilst in the reception area. The Crown argued that, given Mr Kwan was called to give evidence, much of what is recorded as said by him would be admissible – referring to ss 66(2) and (4) of the Evidence Act. The applicant did not argue to the contrary. However, in relation to the applicant “trying to leave” the premises, Mr Kwan’s evidence at trial was that after the interaction he had with the complainant and the applicant in room 3, following which the police were called, the applicant tried to leave the premises. It was in response to the attempts then made that Mr Kwan took steps to prevent this occurring: he requested “a girl in the office” disable the front door. The evidence of the unidentified woman, that the applicant was “trying to leave”, was thus capable of use by the jury to support aspects of Mr Kwan’s overall version.

29. [114]

    Separately, I add the following. It is by no means clear that everything that Mr Kwan said to Constable Foti during their discussions would inevitably be admitted, as the Crown submitted. Evidence of that kind includes Mr Kwan describing a version alleged to have been advanced by the applicant as “bullshit” and, by way of further example, Mr Kwan stating, in response to a question by Constable Foti, that the applicant had not “paid”. The assertion by Mr Kwan that the applicant did not pay was the critical issue of fact for the jury, not Mr Kwan. Whilst undoubtedly he, as manager, could give evidence that he had not received any money, that was not in issue and that is not what is recorded in the video: the evidence from Mr Kwan was broader, to the effect that the complainant had not been “paid”.

30. [115]

    To sum up. There was, in my view, an appreciable risk that the jury could misuse the evidence relating to the applicant’s detention and the statement that he was “trying to leave” in a manner that was unfair and thus prejudicial to the applicant, in the following ways. First, by using the evidence as suggestive of an attempt to flee and thus demonstrative of his guilt. In this respect, it should be noted that, although the Crown did not rely upon this fact as evidence of consciousness of guilt, the fact remains that the jury were given no directions (nor, it should be added, did the applicant’s trial counsel seek any directions) about how to deal with this evidence. Secondly, by using the evidence, and the conduct of the applicant, to support the version of Mr Kwan and the complainant that he had “not paid”.

31. [116]

    The applicant’s second argument was that the versions advanced in response to the question posed by Constable Foti about “what happened?” by the two unidentified women (see [98], above) were also inadmissible and created unfair prejudice. The applicant submitted that what they said “provided information as to the actual commission of the offence as well as to the state and knowledge of the complainant at the time of the sexual behaviour” (applicant’s submissions at [24]).

32. [117]

    By way of response, the Crown pointed out that although these statements were inadmissible as hearsay, the evidence was not objected to and, in any event, the evidence was not unfairly prejudicial. In this last respect, the Crown noted that the statements were not referred to in closing addresses to the jury (Crown submissions at [73](c)).

33. [118]

    In my view, the statements by the two unidentified women were unfairly prejudicial because, ultimately, they served to corroborate the complainant’s version (essentially, that she was asleep when the applicant had sexual intercourse with her), to the detriment of the applicant’s (essentially, that she was a willing participant by her having agreed to sexual intercourse). It also had, in my view, the same effect upon Mr Kwan’s evidence, again to the detriment of the applicant for essentially the same reasons. It is well to recall that, given the sole issue in the trial was narrowed to whether there was consent between the complainant and the applicant to the sexual intercourse, the competing versions – between the complainant and Mr Kwan on the one hand, and the applicant on the other – were central to the jury’s consideration as to whether the Crown had proven the applicant’s guilt beyond reasonable doubt.

34. [119]

    The position is not, I consider, materially different in connection with the further statement made by the unidentified woman that “she’s crying in her room”. The statement is plainly inadmissible as hearsay. In my view, this evidence was also prejudicial and created unfairness because it conveyed that the complainant was upset by reason of what occurred – namely, that she had been sexually assaulted. That prejudice and unfairness was not negated, in my view, by the fact that no reference was made to this evidence during closing submissions. Given that no directions were given about the use to which the jury could put the evidence (I emphasise, none were sought), that simply meant that the jury were able to use that evidence in the way that I have identified. Nor do I accept that, as was submitted, the evidence should be considered as “unremarkable in light of the complainant’s distressed appearance” (Crown submissions at [73](d)): whether the complainant presented in that way was a matter for the jury to assess and determine having regard to all the evidence; although the complainant’s presentation on the video when the door to room 3 was opened was not inconsistent with her being distressed, that finding was in no way an inevitable one.

35. [120]

    The applicant also argued that the statements made by Kylie (see [102]-[103], above) were themselves inadmissible (they were plainly inadmissible hearsay and/or opinion evidence, in my view, and the Crown did not suggest otherwise) and prejudicial. The applicant argued that the initial statements made by Kylie “went to the central issue at trial” and her opinion about the “rights of the complainant” were devoid of probative value and themselves unfairly prejudicial (applicant’s submissions at [24]).

36. [121]

    The Crown did not, as I have noted, contest that these statements were inadmissible but submitted that, viewed as a whole, the evidence was not unfairly prejudicial. In particular, the Crown submitted that that finding should be made about “Kylie’s behaviour” because an “objective observer would have given her statements no significance” (Crown submissions at [74](b)). In relation to her statement that it was the complainant’s “prerogative to say yes or no”, the Crown submitted that, like the earlier statement, no significance would have been attached by the jury to what was said and, in any event, was neither inaccurate, nor in dispute at trial (Crown submissions at [74](c)). Finally, the Crown also emphasised that none of this evidence was referred to in the course of closing submissions.

37. [122]

    I am unable to accept that the evidence that Kylie gave can be viewed in the way the Crown argued, essentially as inconsequential remarks that can be readily dismissed as comments of no moment, and likely assessed and treated in that way by the jury. To the contrary, these were all matters that I consider created unfair prejudice to the applicant because it enabled the jury to use this evidence, that ordinarily would be excluded, to the significant detriment of the applicant. My assessment of this evidence is also informed by the context, and in particular, the conduct of Kylie as shown on the video – which I will explain. When the door to room 3 is opened, the very first image is of Kylie with her arms around the complainant (23:18:56): in effect, that image conveys, in context, that the complainant is upset because something has occurred requiring consolation from Kylie. Given what has so far emerged from the video, and what is to follow by what Kylie says and how she behaves, the distinct impression created is that the reason why Kylie was consoling the complainant is because she had been the subject of a sexual assault committed by the applicant. Separately, in relation to Kylie’s statement that it was the complainant’s “prerogative to say yes or no”, whilst I accept that on its own and in isolation, that statement may possibly be regarded as fairly innocuous and benign, I am unable to characterise the statement in that way in this setting. Rather, in my view, it marks the temporal endpoint of the entire “course of conduct” by Kylie which displayed the complainant as the victim and the applicant as the assailant.

38. [123]

    There is a further matter that, in my view, serves to reinforce why the admission of Kylie’s statements were unfair: the evidence that the complainant gave, somewhat inexplicably elicited during cross-examination by the applicant’s trial counsel, was that the complainant “told [Kylie] what happened and she hugged me”. Thus, Kylie’s “evidence” served to directly corroborate the complainant’s version that she had been sexually assaulted by the applicant.

39. [124]

    Finally, the applicant submitted that Constable Foti’s opinion (“What’s happened to you is not good”: 23:21:49) was also inadmissible, and prejudicial.

40. [125]

    The Crown accepted that the statement, if objected to, was inadmissible to prove the truth of the fact about which the opinion was expressed, but nevertheless submitted that the evidence would only be understood as a more confined one, as “providing comfort to a person showing some distress…” (Crown submissions at [74](e)). In my view, the difficulty with the Crown’s argument, to the effect that the evidence would be understood by the jury in the limited way suggested, is that the jury were not given a direction about the use to which it could or should be put (I add: none was sought). Again, the effect of this statement needs to be seen in the context of other parts, particularly the challenged parts, of this video. When that is done, the statement made by Constable Foti is capable of being understood as the police officer hearing the complainant’s version and expressing an opinion as to its occurrence (“what’s happened to you…”) and character (“… is not good”).

41. [126]

    There was, I consider, a significant risk that the jury could use this evidence to inform its decision as to whether the sexual intercourse was consensual or not.

42. [127]

    To sum up. In my view, the matters raised by the applicant were not merely prejudicial, but unfairly prejudicial to the applicant and resulted from an irregularity, being the failure of the applicant’s trial counsel to object to the admission of the challenged evidence. They were unfairly prejudicial because, as I have explained when dealing with the parts of the video challenged by the applicant, they invited the jury to draw inferences about particular matters that, ordinarily, would be excluded from evidence to the significant detriment of the applicant and it enabled the jury to misuse that evidence which, in each instance, created a distinct risk that the evidence was used to inform the jury’s consideration and resolution of the sole issue in the case – namely, whether the sexual intercourse was consensual, or not. In my view, there is no question about the impact of this evidence on the course of the trial: it was, I consider, the product of a material irregularity, being the failure of the applicant’s trial counsel to object to this evidence.

43. [128]

    The Crown, however, made a further overarching submission: that the admission of the evidence was the result of a forensic decision by the applicant’s trial counsel and that decision was considered, reasonable and well within the wide discretion given to counsel, with the result that no “material irregularity or practical injustice” and miscarriage of justice occurred (Crown submissions at [78] and [81]).

44. [129]

    The Crown submitted that the forensic context that informed the decision not to object to the admission of this evidence was to aid that part of the applicant’s case that the matter had been inadequately investigated by police, to the detriment of the applicant: the Crown thus submitted that “the entirety of the recording was relevant” to the suggestion that the police investigation was “incomplete and that potentially important evidence had not been obtained” (Crown submissions at [78]-[80]). The Crown also made reference to the applicant’s trial counsel indicating to the trial judge that there was “a very good reason” for why he had not objected to aspects of the evidence – a matter that I address in what follows.

45. [130]

    It is clear, and the applicant did not suggest to the contrary, that the material was admitted without objection based upon a “forensic decision of defence counsel”. I have earlier set out the relevant parts of the exchange: [91]-[92], above. There I noted that the forensic decision identified by the applicant’s trial counsel was no more than a partial one, at best. The focus of what was relied upon to justify not objecting to the admission of the body worn video in toto was suggested to be some cross-examination that was sought to be undertaken of the officer in charge in connection with Kylie, and her conduct.

46. [131]

    The cross-examination by trial counsel of Detective Senior Constable Starr in connection with “Kylie” is exceedingly brief, covering six questions, and it followed after the witness had been shown a portion of CCTV footage. Given its confined nature, it can be set out in full:

47. [132]

    The forensic purpose of this cross-examination is unclear, particularly once it is recognised that the cross-examination established that the CCTV footage showed the applicant “attempting [to] leave the premises” and that after doing so (“… as he is doing so”), Kylie is seen to behave in “quite an aggressive manner towards him”. In short, by the cross-examination, Kylie’s acts were not suggested to have explained the applicant’s attempted departure, but were reactive to them.

48. [133]

    The applicant’s trial counsel, in fact, cross-examined the complainant about Kylie, albeit in a limited way. By the cross-examination, which was based upon a “screenshot” of the body worn video dated 5 June 2022, the complainant denied that Kylie was “agitated”, only “upset” and that Kylie did not “want anyone to see [her] face or something because at the time” the complainant was “crying and she was comforting me”. Whether there was any forensic purpose to this cross-examination is more than a little difficult to gauge, but it made the supposed forensic decision by the applicant’s trial counsel to not object to that part of the body worn video relating to “Kylie” even more remarkable.

49. [134]

    How, then did trial counsel use this in the course of submissions? Having reviewed the transcript, it is not apparent that the applicant’s trial counsel made anything of this “issue” in final submissions before the jury, beyond referring to the fact that after the applicant came out of room 3 to the front reception area, “he’s attacked by the larger worker with the long, black hair” following which his physical safety is threatened by “objects being thrown at him and by an object being waved at him in quite an aggressive fashion by the larger sex worker with the long black hair and the black dress”. It should be emphasised, however, that this submission was not based upon anything that was discernible from Exhibit 6 (and Kylie’s words and conduct at that time), but upon what could be seen in images taken from the CCTV footage. The point that apparently was sought to be made, in any event, by the applicant’s trial counsel was that the applicant was endeavouring to “sort out the problem rather than run away from it” but, again, that had nothing at all to do with Exhibit 6; in fact, what was in that video tended to prove, or was capable of assisting in proof of, the opposite as I have previously explained.

50. [135]

    Further, as earlier noted, although the applicant’s trial counsel made a submission to the jury – asking, rhetorically, why the complainant took so long to open the bedroom door – as part of his overall attempt to encourage the jury to look carefully at the complainant’s presentation (see [50], above), it should be noted that the applicant’s trial counsel did not cross-examine the complainant about the “length of time” it took for the door to be opened as shown in the body worn video taken by Constable Vanecek.

51. [136]

    In my view, given the confined nature of the submission, and the manner in which the applicant’s trial counsel sought to establish the evidential basis for that submission (based upon CCTV footage and cross-examination of Detective Senior Constable Starr), it is readily apparent that Exhibit 6 had no bearing on, or materiality to, that part of the applicant’s case and the suggested forensic benefit is more than a little difficult to conceive. I entertain considerable doubt about whether one, in fact, existed, or could exist. None were suggested in this Court.

52. [137]

    In my view, the decision to allow the tender of the totality of Exhibit 6 based upon the activities of Kylie, or even the part of the recording showing Kylie and her interactions with the complainant, is baffling. I am unable to ascribe any rational objective reason that could justify the decision. Separately, even if, contrary to my finding, it is possible to rationally attach a forensic purpose in the way suggested by the applicant’s trial counsel relating to Kylie, that said nothing about what is shown in the other parts of the video; and indeed the prejudicial nature of what Kylie is shown to be doing, and what she said.

53. [138]

    It may be accepted that something could be gained from the video showing the manner in which the complainant interacted with the police and, in particular, how the complainant apparently behaved when requested by Constable Foti to provide her with some identification (although, as I observed, above, the applicant’s trial counsel did not cross-examine the complainant upon this issue). But that is a small part of the video confined to around 20 seconds. It provided no rational explanation, in my view, for the balance of the video being played. The Crown also submitted that the entire video was relevant to the applicant’s overall complaint about the inadequacy of the investigations by police. I am unable to accept that submission and, in particular, I am unable to accept that this is a rational explanation that is capable of explaining why the applicant’s trial counsel did not object to the tender of, at least, substantial parts of the video.

54. [139]

    The test for third limb miscarriage is whether the irregularity is “prejudicial in the sense that there was a ‘real chance’ that it affected the jury's verdict ... or ‘realistically [could] have affected the verdict of guilt’ ... or ‘had the capacity for practical injustice’ or was ‘capable of affecting the result of the trial’”: Zhou v The Queen [2021] NSWCCA 278 at [22] (internal citations omitted); HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978 at [2]. Given that I have found that any slight advantage to the applicant was outweighed by the significant forensic disadvantage to the applicant’s case, it follows that I am satisfied that a miscarriage of justice has been established under this ground.

55. [140]

    It follows, therefore, that I would uphold this ground of appeal.

Ground 3: the trial miscarried as a result of the unedited ERISP (Exhibit 5) being admitted into evidence

1. [141]

   By this ground of appeal, the applicant argues that the trial miscarried as a result of the unedited ERISP being admitted into evidence: the applicant identifies a number of parts of that interview where it is argued that unfairness arose resulting in a miscarriage of justice.

2. [142]

   Before dealing with the applicant’s arguments, I will outline how the ERISP came to be adduced into evidence. The particular parts of the ERISP that were argued to be unfair, in the way the applicant argued, will be identified in the course of dealing with the applicant’s arguments.

3. [143]

   As I have earlier noted, Detective Senior Constable Starr initially gave some brief evidence on the first day of the trial before the complainant, Mr Kwan and Sergeant Johnston were interposed. Before Sergeant Johnston was called to give evidence, the Crown indicated that it was proposed to play the “record of interview” (that is, the ERISP). At that time, the Crown indicated to the trial judge that they had spoken with the applicant’s trial counsel “in relation to that. There were some edits that were suggested by the Crown but my friend has requested that they remain in for various relevance reasons”.

4. [144]

   In the afternoon of the second day of the trial, Detective Senior Constable Starr was recalled. His evidence was that he conducted an electronically recorded interview with the applicant at Granville police station commencing at about 2:47am on 6 June 2022. Also present during that interview was Plain Clothes Senior Constable Blackburn. The ERISP was tendered, and admitted without objection. The transcript of the ERISP was marked MFI 4. The recording of the interview was then played to the jury.

5. [145]

   The playing of the recording did not complete at the end of the second day of the trial. After the jury were sent home for the day, the trial judge raised some concerns with the parties regarding the ERISP. It is necessary, given the ground of appeal and the respective arguments advanced, to set out in full the transcript of the exchange that arose at this time (emphasis added):

6. [146]

   In relation to this exchange, the following three matters warrant emphasis. First, it is clear the applicant’s trial counsel made a forensic decision to permit the tender of this material. Secondly, in order to secure the forensic advantage, the applicant’s trial counsel, although acknowledging that the Crown offered to redact “most…if not all” of the parts of the ERISP that were raised by the trial judge as concerning her, indicated to the trial judge that it was his “wish for the whole of the ERISP to go in” (see also the earlier exchange referred to in [143], above). And, thirdly, the “forensic decision” was identified as being, in effect, that the “very extreme method of testing” the applicant’s version by the police during the course of his interview lent “weight to the strength of the explanation that [the applicant] has provided”.

7. [147]

   A further matter should be noted. Ordinarily, much of what is now complained about by the applicant would not be admitted into evidence. Indeed, that was the course proposed by the Crown. This appeal does not, therefore, concern the manner in which an accused person should be interviewed by police (as to which, see the discussion in J D Heydon, Cross on Evidence (13th ed, 2021, LexisNexis) at [33730]). Rather, the ground of appeal concerns whether a miscarriage of justice has arisen, notwithstanding the forensic stance adopted by the applicant’s trial counsel, by the jury receiving the whole of the ERISP when parts of it contain material which the applicant argues should be characterised as, amongst other things, “inappropriate” questioning of the applicant.

8. [148]

   The applicant made two overlapping submissions about the ERISP, generally: first, it was submitted that the questioning by police was “inappropriate” and “undoubtedly exceeded the boundaries of fair or even robust questioning” that “would have left the jury with little doubt that the police were dismissive of the applicant’s version”; secondly, it was submitted that the totality of the ERISP had the visual effect that the applicant “was evasive and was changing his story”, and was ultimately unfair (applicant’s submissions at [32]). The applicant identified particular aspects of the interview that were submitted to demonstrate these matters and to support findings to that effect – as a step towards a conclusion that a miscarriage of justice arose. The applicant, although acknowledging that trial counsel made a forensic decision to “allow the ERISP to be tendered without editing”, nevertheless submitted that the forensic position adopted remained “problematic” and that a miscarriage of justice arose notwithstanding that stance (applicant’s submissions at [35]-[36]).

9. [149]

   The applicant’s written submissions set out parts of the ERISP that were argued to be unfairly prejudicial, albeit that the submissions did not assign any particular characterisation to those parts identified. They appear, broadly, to fall within three categories: instances where the applicant was challenged; instances where the applicant was said to have been inappropriately challenged; and instances where the questioning involved an inappropriate subject matter.

10. [150]

    It is appropriate to make some preliminary observations about the effect of the challenged parts of the ERISP in the course of addressing the parts of the interview that the applicant argued gave rise to substantive unfairness. They are, necessarily, preliminary because an assessment of whether there has been an irregularity leading to a miscarriage of justice involves a wider examination about the course of the trial – critically here, extending to a consideration of the decision by the applicant’s trial counsel to, in effect, require the totality of the ERISP to be tendered in order to secure a forensic advantage to the applicant.

11. [151]

    The applicant raised one instance of questioning where he is argued to have been challenged: question 85.

12. [152]

    Question 85 is in these terms: “… If I said to you that the whole area in that establishment is covered by CCTV how would that affect your story do you reckon?”.

13. [153]

    I do not regard this question, in context or when viewed as part of the overall interview, to be prejudicial in any way. To illustrate, the applicant responded to the question that it would be “the same”. Indeed, the applicant’s trial counsel cross-examined Detective Senior Constable Starr on this question (and question 86, which is to the same effect), presumably because they tended to assist an aspect of the applicant’s “case” – essentially, that he had always given a consistent version of what occurred on the evening. Further, there is nothing in the “manner” of the questioning by police that detracts from this and the applicant, it should be noted, did not submit to the contrary.

14. [154]

    The applicant raised three instances of questioning where he argued he was inappropriately challenged: across questions 120-207 (questions that generally concerned the position of the applicant on a lounge at various times); 297-313 (questions that involved what were argued to be unnecessary and inappropriate remarks made by police, including about the applicant’s version of what occurred at the premises); and 324-402 & 461-486 (questions that also involved unnecessary and inappropriate remarks made by police, including about the applicant’s version of what occurred at the premises).

15. [155]

    Questions 120-207 involved the police addressing the movements of the applicant in and around the period leading up to when he entered room 3. As I have earlier noted, it was not in dispute that the applicant entered room 3 at around 10:42pm (see [21], above). The questioning of the applicant in this period followed on from the applicant giving police a version about what had occurred – essentially, when he was sitting on the lounge, it was the complainant that initiated contact with him, and invited him into her room (see, in particular, Q39-60).

16. [156]

    The essential submission that was put to this Court by the applicant was that the questioning that then occurred was unfairly prejudicial because it was based upon an error that was made by police about whether the applicant did, as he had told them, sit on a lounge depicted in CCTV footage. The applicant submitted that the police, who at that time only had a select portion of the CCTV footage, proceeded to interrogate the applicant on a false basis (that he did not sit on the lounge, at any time, as he claimed) when that was simply not so. The Crown submitted to the contrary, arguing that, properly understood, the police questioning proceeded on a correct understanding of the sequence of events and that no unfairness therefore arose.

17. [157]

    In my view, the questioning of the applicant did proceed upon an erroneous basis, which I will briefly explain. In doing so, it should be emphasised that precisely what was shown to the applicant by police during the course of this interview was not in evidence, hence the subject matter of the questioning can only be reconstructed based upon the nature of the questions that were asked.

18. [158]

    In this part of the ERISP, the applicant submits that he was essentially cross-examined about his version about when he was sitting on a particular lounge, and being challenged about it by police based upon an erroneous understanding of the CCTV footage. The relevant part of the questioning commences at question 124 when Plain Clothes Senior Constable Blackburn advised the applicant he had a “bit of footage here that I obtained tonight from the brothel”, and that he would be asked to “have a look at it”, and then asks the applicant to indicate “if you may or may not have been mistaken” (Q125-126). So far as it is discernible from the questions asked, the footage that the applicant was shown was referable to the periods “22:49” (Q142) and “22:42” (Q176-183). Plain Clothes Senior Constable Blackburn then puts to the applicant: “At no time did we see you sitting on that lounge” (Q185).

19. [159]

    The ready explanation for why the footage did not depict the applicant on the lounge in that period is that he was in room 3 from 10:42pm (see [21], above), and it was not in dispute that he remained in that room until at least around 10:50pm when Mr Kwan entered the room (see [22], above). These times were, if not an agreed position at trial, not disputed. It follows that any questioning seeking to challenge the version given by the applicant about the absence of footage showing him on the lounge in this time period was erroneous. However, it should be noted that the possibility that the premise of the questioning was in error was recognised by Detective Senior Constable Starr: in some of the questions that he asked of the applicant, he acknowledged “that footage basically is from the moment that you walked into the room” (Q188). However, in taking up the applicant’s version, Detective Senior Constable Starr put to him (Q193):

20. [160]

    The subject matter of what was said by Detective Senior Constable Starr involved two key propositions: that the applicant was not sitting on the lounge as shown in the footage that was shown to the applicant during the interview in and around the time periods 10:42pm and 10:49pm and that, given the layout, it would not have been possible for the complainant to have called the applicant into her room. The difficulty, of course, is by blending these matters the applicant’s version is suggested to be wrong, and asserted to be proven so by the CCTV footage that was shown to him, when that is not the case. (I am putting to one side the factual issue about whether, given the layout, what the applicant alleges the complainant did to initiate the engagement could have occurred: I express no view upon that, and no issue was raised about it in this appeal). However, the problem with the questioning from Detective Senior Constable Starr in this respect is that it is contrary to the agreed position – namely, that the applicant is already within room 3 at 10:42pm.

21. [161]

    Thus, I consider that the questioning of the applicant relating to the “lounge”, as I have outlined above, was damaging for the self-evident reason that it conveyed in various parts that a key plank of the applicant’s version that he gave to police was flawed, when that was not so.

22. [162]

    This issue was, however, taken up in cross-examination of Detective Senior Constable Starr by the applicant’s trial counsel. This part of the cross-examination substantially covered the challenged portions of the ERISP. It is, I consider, clear from a review of that cross-examination that Detective Senior Constable Starr conceded that the applicant’s “version of sitting on the lounge” was in fact correct, that he was “telling the truth” and that the questioning by Plain Clothes Senior Constable Blackburn involved a “breakdown in the communication of what point they were both talking about”.

23. [163]

    My assessment is that this cross-examination was largely successful in correcting the errors. Nevertheless, there is good reason to be concerned about the potential impact of the questioning during the ERISP on this issue, in particular the impact on the applicant’s credibility and thus the plausibility of his version: the applicant’s submission was that the questioning itself, and how the applicant was made to look, was damaging. Further, notwithstanding that this Court can (and has) viewed the ERISP, this issue is not an easy one to resolve given that this Court does not have the benefit of seeing and hearing the cross-examination of Detective Senior Constable Starr. I consider that, subject to the discussion about the forensic decision made by the applicant’s trial counsel, it should be concluded that the questioning was misleading and, in that respect, unfair and prejudicial to the applicant: I consider that there was a clear risk that this evidence could be misused by the jury, to the applicant’s detriment, particularly given the sole issue raised at trial and the forensic importance in the jury forming a favourable view about the various parts of the applicant’s case.

24. [164]

    The balance of the applicant’s arguments can be dealt with somewhat more summarily. In my view, the questioning of the applicant about asserted inconsistencies involved unnecessary, and gratuitous, ridiculing of the version that the applicant had given, as was submitted. For example, it included “questions” (if that be the correct description) such as:

    1. (1)

       “And the footage doesn’t lie” (Q301);

    2. (2)

       “And the footage hasn’t been drinking tonight… The footage, the footage doesn’t, hasn’t gone to a brothel to get on tonight, has it?” (Q304-305);

    3. (3)

       “So, mate, that’s a big hole in your story right there”, a statement made by Plain Clothes Senior Constable Blackburn following an earlier question that he had put to the applicant, namely: “But the footage doesn’t show you sitting on the lounge” (Q362-366);

    4. (4)

       “The video doesn't lie” and, shortly after this: “Now, let’s just, let’s just cut the crap… And just tell us how it happened, mate, ‘cause the footage doesn’t lie” (Q388, 401-402);

    5. (5)

       After showing the applicant some CCTV footage, Plain Clothes Senior Constable Blackburn says: “It looks like you’re the one being argumentative and you’re trying to get out of the establishment before the police arrive” and, shortly after this: “It looks like you’re trying to push past the little Asian fellow and this lady in the black is having a go at you” (Q476-478).

25. [165]

    The applicant submitted that the “cross examination of the applicant” extended to the police ridiculing his version and asserting that it was inaccurate or expressing disbelief in it. In my view, there is force to these submissions and, subject to the discussion about the forensic decision to require this material to be adduced into evidence, I consider there to be a clear risk that this evidence could be misused by the jury, to the applicant’s detriment – particularly (as I have indicated in relation to the earlier questioning) given the sole issue raised at trial.

26. [166]

    The applicant also raised the following instances of questioning where he argued the subject matter was inappropriate. In my view, save for the first example, each of the parts to which this submission was directed reasonably admit to the applicant’s characterisation:

    1. (1)

       Q108-118: This questioning involved asking the applicant whether he had previously “been to brothels”, but the questioning was clearly tied to the manner in which payment for the services typically would be expected to occur, and the applicant’s understanding of that. In and of itself, and having regard to the manner in which the questions were asked, I do not consider that any material prejudice arose by the admission of this part of the ERISP.

    2. (2)

       Q217-228; Q236: In relation to these questions, I consider that there was, as the applicant essentially submitted, inappropriate discussion concerning whether a person would, if they were asleep, “wake” during sexual activity and an unnecessary and irrelevant reference to the applicant’s gambling.

    3. (3)

       Q409: In relation to this question, the police suggested that the applicant said to his friend (who initiated the visit to the brothel): “I’m going to have a root as well”. The basis for this suggestion is not at all clear, albeit that the applicant denied this in his response.

    4. (4)

       Q455-486: In relation to these questions, the applicant argued that a number of them demonstrate the inappropriate nature of what occurred, in that the questions suggested that the applicant had been either evasive, inconsistent in what he told police, or both – including: “Hang on. So, so you’re, now you’re saying you know you’ve done the wrong thing” (Q455); “So you’re saying now that you said…”; and “It doesn’t look like that, mate… It doesn’t look like that” (Q484-487).

27. [167]

    However, as I earlier indicated, the assessment of this material was necessarily preliminary: whether there has been substantive unfairness needs to be assessed on the footing that it was admitted without objection – in fact, adduced into evidence at the request of the applicant’s trial counsel for an identified forensic purpose.

28. [168]

    The applicant acknowledged these matters, as earlier noted, but nevertheless submitted that substantive unfairness still occurred. Two arguments were advanced to support that submission: first, the “cross examination of the applicant on the CCTV was founded on the incorrect portion of the footage” leading to what was submitted to be “aggressive belittling of the applicant’s version” – a submission that, as explained above, must be understood as referable to the questioning of the applicant by police that was said to erroneously assume that the applicant, at no point during the course of his attendance at the premises, could be seen sitting on a lounge in line with what he told police; and, secondly, it was submitted that the “asserted gained (sic) to be made was slight in comparison” – a submission that must be understood as suggesting that the identifiable forensic benefit from the admission of the footage was overwhelmed by the prejudicial nature of what was shown within it (applicant’s submissions at [35]). The applicant ultimately submitted that, in the result, a miscarriage of justice occurred by the admission of this evidence, given the jury “would have been left with the impression that the applicant’s version was not true and that his denials should be given little weight” (applicant’s submissions at [36]).

29. [169]

    I do not accept these submissions. Put simply, that is because the applicant’s trial counsel made a considered and what I accept to be rational forensic decision to permit the tender of the ERISP. Further, I am unable to accept that, as the applicant argued, the forensic benefit was slight and outweighed by the suggested prejudice to the applicant.

30. [170]

    The applicant’s trial counsel indicated to the trial judge, following her Honour raising some concerns about the ERISP, that the – or a – forensic reason for admitting the totality of the record of interview is that it constituted a “very extreme method of testing”, and therefore provided a basis upon which he could submit to the jury that the applicant’s overall version, having been tested in that way, should be accepted and that he should be acquitted: see [145]-[146], above. The detail of how the applicant’s trial counsel in fact put the applicant’s case to the jury, including in connection with these matters, has been earlier summarised: see [44]-[50], above. In my view, having regard to the way the matter was put to the jury, there were other forensic reasons that may be objectively discerned from the challenged parts of the ERISP being admitted into evidence: it permitted a submission to be made to the jury that the applicant had been “co-operative” over the entire course of his interactions with police (notwithstanding the way and manner in which he was questioned). More generally, of course, other parts of the ERISP were not at all unhelpful to the applicant’s case; in fact, it contained the version of what occurred that the applicant relied upon in closing submissions to the jury.

31. [171]

    Seen in this context, the decision taken by the applicant’s trial counsel could not, in my view, be characterised as one that could not rationally be taken: it follows, given there is such a reasonable explanation, that there is no irregularity or defect in the trial occasioning any miscarriage of justice. The fact that, in the result, it may be taken to have been unsuccessful or even imprudent or thought to be chancy and unwise does not dictate a contrary conclusion. To be clear, I do not accept that, as the applicant submitted, there was only a slight forensic benefit to be secured that was outweighed by the potential for the jury to use the material in a way that did not benefit the applicant.

32. [172]

    The applicant further submitted that “the jury were given no assistance in how they could use the material in the ERISP”, albeit subsequently submitting that there “could not properly have been any direction in the summing up that any greater weight should be placed upon [the applicant’s] denials” (applicant’s submissions at [35]). I do not accept this submission. No particular direction was, or could be, required in what was ultimately, and quintessentially, a factual question for the jury to assess.

33. [173]

    For those reasons, I would dismiss this ground of appeal.

Ground 4: the trial miscarried as a result of the unedited body worn videos and the unedited ERISP being admitted into evidence

1. [174]

   By this ground of appeal, the applicant argues that the first three grounds, in combination, has led to a miscarriage of justice – in short, that the material “created an overwhelming prejudice which objectively deprived the applicant of any real chance of acquittal” (applicant’s submissions at [37]).

2. [175]

   Given the conclusion that I have reached in connection with grounds 1-3, this ground does not arise: I have concluded that there was no unfair prejudice and no miscarriage in connection with grounds 1 and 3, but concluded otherwise in connection with ground 2.

Rule 4.15 and the proviso

1. [176]

   The Crown submitted that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applied and that leave should be refused. In my view, given that a miscarriage of justice occurred, any leave required should be granted because the applicant has not received a fair trial according to law: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]; Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [32].

2. [177]

   The Crown also relied upon the proviso in s 6(1), submitting that no substantial miscarriage of justice occurred (Crown submissions at [106]). In my view, the sole issue at trial turned on issues of credibility. In Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44, Kiefel CJ and Keane J observed at [20]:

3. [178]

   Their Honours went on to observe (at [22]) that when a case turns on the jury’s acceptance of the complainant’s evidence, an appellate court should not seek to duplicate the function of the jury. Similarly, Gordon, Steward and Gleeson JJ observed at [42]:

4. [179]

   Although the Crown case did not rely solely on the complainant’s evidence in this case, it did turn on questions of credibility and the credibility of the central witnesses was essential to an evaluation of whether the applicant’s guilt was established beyond reasonable doubt. In these circumstances, I do not consider that it is open to find that no substantial miscarriage of justice has occurred.

The sentence appeal

1. [180]

   In circumstances where I consider that the applicant’s conviction, and therefore the sentence imposed in consequence, should be quashed, it is neither necessary nor appropriate to deal with the applicant’s challenge that the sentence imposed was manifestly excessive.

Orders

1. [181]

   For the above reasons, I propose the following orders:

   1. (1)

      Grant leave to the applicant to appeal against his conviction.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the applicant’s conviction and sentence imposed on 15 September 2023.

   4. (4)

      Order that there be a new trial.

   5. (5)

      List the matter for arraignment on 20 December 2024 in the District Court at Sydney at 9:30am.