Kees Langelaar v R

1. [1]

   HOEBEN CJ at CL: I agree with N Adams J.

2. [2]

   CAMPBELL J: I agree with the orders proposed by N Adams J for the reasons her Honour expresses.

3. [3]

   N ADAMS J: Kees Langelaar (“the applicant”) appeals against his conviction and makes application for leave to appeal against his sentence. He appeared unrepresented at the hearing of his appeal. He is 72 years of age.

Background

1. [4]

   On 22 May 2012, the applicant stood trial in the District Court at Taree on five counts of sexual intercourse with a person over the age of 14 years and under the age of 16 years who was then under his authority contrary to s 66C(4) of the Crimes Act 1900 (NSW) and one count of indecent assault on a person under the age of 16 years contrary to s 61M(2) of the Crimes Act. The applicant pleaded not guilty to all counts and his trial proceeded before Williams DCJ and a jury of twelve.

2. [5]

   On 31 May 2012, the jury returned verdicts of guilty in relation to four of the five counts on the indictment contrary to s 66C(4) (Counts 1, 2, 4, and 5) and in relation to the one count of indecent assault (Count 3). The jury returned a verdict of not guilty in relation to the remaining count (Count 6).

3. [6]

   On 11 November 2013, Williams DCJ sentenced the applicant to an aggregate sentence of imprisonment for five years with a non-parole period of three years. The indicative sentence of imprisonment for each of Counts 1 and 2 was two years and six months, for Count 3 it was three years with a non-parole period of two years, for Count 4 it was three years and for Count 5 it was four years.

The Crown case

1. [7]

   The Crown case relied predominantly upon the evidence of the complainant. Her evidence in chief was given by way of recorded interview, supplemented by further oral evidence. The complainant’s grandmother, the applicant’s ex-partner Ms Tracey Goodwin and the officer in charge were the other three witnesses called for the prosecution. The applicant did not participate in an ERISP nor did he give evidence at his trial. His daughter S was the only witness called to give evidence in his case.

2. [8]

   The evidence given at trial can be briefly summarised as follows.

3. [9]

   As at 2012 the applicant was living with his then partner Ms Goodwin, their two daughters and the applicant’s brother at a large house with attached flats in Wingham, near Taree. The complainant was friends with the applicant’s oldest daughter S. Both S and the complainant were fifteen years old.

4. [10]

   In May 2012, the complainant moved in with the applicant and his family. She had previously been living with her grandmother, but had been asked to leave after getting into trouble with the police. On prior occasions she had stayed overnight at the applicant’s house and as such knew the family well.

5. [11]

   The complainant and the applicant developed a close relationship in which the applicant was described in evidence as acting as a sort of “father figure” for her. They spoke about their problems together. A few weeks after the complainant started living with the applicant and his family, the applicant started doing things which were “kinda sexual” to the complainant. He would tell her she had a “better arse” than his daughter’s and talk about his “sex life”. He would rub up against her and rub his hands up and down her legs and “stuff like that.” He would kiss her on the lips “maybe every day” and on occasion it would be “passionately like a full on kiss.”

6. [12]

   There was evidence that the complainant would walk around in her underwear in front of the applicant. There was also evidence that the complainant would sit with her legs on the applicant’s lap under a blanket watching television. Sometimes she would be wearing a t-shirt and underwear. This conduct was observed by Ms Goodwin who described their body language as being “way out of whack.” She spoke to the applicant about it. He replied, “This is not happening at all” and “…then he said that if I don’t stop harassing him that he’ll have sex with her on her sixteenth birthday.”

7. [13]

   On 30 May 2012, the complainant took part in an electronically recorded interview with police. Therein she outlined a number of specific allegations against the applicant. When she gave evidence she stated that there were “numerous times” when the applicant put his fingers inside her vagina.

8. [14]

   In relation to the six counts on the indictment at trial the evidence was as follows.

9. [15]

   On one occasion the complainant was sitting on the lounge at night watching television with the applicant. Her legs were draped over the applicant’s legs. The applicant rubbed the complainant’s legs up and down and then penetrated her vagina with his finger. The complainant did not say anything to the applicant. She told police she didn’t stop it because she liked it. She was wearing a t-shirt and pyjama pants at the time. She told the court in relation to that incident that “it was the same as every other time” and “it was the same routine.”

10. [16]

    Ms Goodwin was in her bedroom at this time and S was asleep on another couch in the same room.

11. [17]

    On another occasion the complainant was sitting on the lounge at night watching television with the applicant with her legs across the applicant’s lap. The applicant rubbed the complainant’s legs up and down and then penetrated her vagina with his thumb. She was wearing a t-shirt and pyjama pants at the time. She did not say anything to the applicant. Afterwards he said to her, “The thumb is always the best.”

12. [18]

    On one occasion while the applicant and the complainant were in the lounge room seated on the couch with a blanket over both of them, the applicant requested that the complainant give him a “hand job” and she complied. In her interview she told police he didn’t really say anything, “he just undone his pants and yeah.” At the trial she gave evidence that the applicant “zipped down his pants and he put my hand on his penis.”

13. [19]

    The complainant gave evidence that she stroked the applicant’s penis for about 10-15 minutes until he ejaculated in her hand. When she walked away from him after this he thanked her.

14. [20]

    The final three counts on the indictment all arose from one incident.

15. [21]

    The applicant was sitting on the lounge with her legs across the applicant’s lap late at night. S was in bed and Ms Goodwin and the applicant’s younger daughter had gone to stay with a relative following a fight between the applicant and Ms Goodwin.

16. [22]

    The complainant was wearing a t-shirt, underpants and maybe a bra. They were both under a blanket. The applicant started touching the complainant’s legs and then started touching her vagina. He inserted his fingers in and out of her vagina. She told police in her interview that she did not tell him to stop because she liked it. This occurred for about five minutes. They did not say anything to each other during this time and they remained covered by the blanket.

17. [23]

    After the above sexual act, the applicant asked the complainant if she wanted to go somewhere else in case S came in. She followed him into his bedroom. She told him that she did not wish to have sex with him and he said that was fine. They kissed each other passionately.

18. [24]

    The complainant told police that the applicant “just kept pushing me to have sex. I didn’t want to so I gave him oral sex instead.” The complainant then sucked the applicant’s penis, which was “hard.” She said this occurred for a period which was “not long.”

19. [25]

    This was the count in relation to which the applicant was acquitted. After the act of fellatio, the applicant told the complainant to get on the bed. He removed her underpants. She stated he “got his penis into my vagina” from behind whilst she was on her knees. She stated that his penis was not inside her for very long before the applicant ejaculated inside her vagina.

20. [26]

    The applicant then put his pants back on and told the complainant to, “Go clean yourself up”. The complainant guessed it was about 2.30am at this stage. She told police that having sexual intercourse with the applicant had made her feel “yuck” and said, “I didn’t like it. I was scared”.

21. [27]

    When the complainant was re-examined by the Crown Prosecutor she stated that she could not put the four separate incidents into a clear chronological sequence.

22. [28]

    The complainant gave evidence that one evening, just before she moved out of the applicant’s premises, S and her boyfriend went out together to buy ice cream. When they returned at some point between 11pm and midnight, S walked into the lounge room and saw the complainant and the applicant kissing. The complainant described it as a “passionate kiss” and agreed that tongues were involved. She stated, “S went off and she went into her room.” The complainant said that the applicant told her to tell S, “that we were mocking them, S and her boyfriend, which was the most stupidest lie I’ve ever heard in my whole entire life.” The complainant stated that she had to tell S this and also the applicant’s partner Tracey Goodwin. Ms Goodwin said to her, “I want you out by the end of the week.”

23. [29]

    Ms Goodwin gave evidence that she was awoken one night by S at about 11.30pm. S said, “I just caught my dad hooking up with [the complainant]”. Ms Goodwin went out to the lounge room and saw the complainant and the applicant under a blanket together on the couch. Ms Goodwin said “What the hell’s going on here? [S]’s just come out and…told me that you’re hooking up with [the complainant]. What – what the hell’s going on?” The complainant and the applicant then said that it was not true and that they were just imitating S and her boyfriend. At this time S “went absolutely berko” at the complainant and said, “You’re out of here. You’re leaving tomorrow. How sick are you for hooking up with my dad.” S also told Ms Goodwin that, when they were caught, the complainant had pulled the blanket up over her head and said “Awkies [a colloquial expression they both used meaning “awkward”]. I just hooked up with your father.”

24. [30]

    S did not provide a statement to police, but gave evidence in the defence case. She said that when she walked into the lounge room that night all she saw was a “peck” on the lips that lasted “less than a second.” S said she went into her parent’s room to tell her mother. She stated her reason as, “Mum had been saying all this stuff about [the complainant] and Dad and all these allegations and stuff and I thought that maybe it was true. But I think I made an overreaction.”

25. [31]

    In cross-examination S agreed that she had seen the complainant and the applicant exchange a goodnight kiss on previous occasions. She was asked what it was about this particular kiss that prompted her to wake her mother up. She replied, “I’m not sure; I was very stressed out; my health and that. Mum had been talking about this a lot, and I’d overheard some things, but I don’t really remember what they were, but it was in my mind at the time.”

26. [32]

    The complainant gave evidence in cross-examination that she had not said anything to her best friend, the applicant’s daughter S, about what was happening. She said this was because “she [S] wouldn’t believe me; because it’s her father, she loves him.”

27. [33]

    The day after the interrupted kiss the complainant moved back in with her grandmother. She was asked to see a counsellor and told the counsellor about kissing the applicant. The counsellor told her this was inappropriate and spoke to her grandmother. The matter was subsequently referred to police at which time the allegations of sexual assault were first made.

28. [34]

    Tracey Goodwin gave evidence that, a few days after the complainant moved out, she left the applicant and booked into a motel. On 17 June 2012, she returned to their home and spoke with the applicant. He told her that he had to get a catheter inserted. She responded, “Oh, you’ve probably got an STD from [the complainant].” The applicant replied, “Oh ten points for Tracey” and motioned as if to write a tick on the wall. Ms Goodwin said to the applicant, “Now that we’re alone can you be honest with me? Did you have sex with [the complainant]?” The applicant started to cry and said, “Yes, I did have sex with [the complainant].” Ms Goodwin swore at him and he responded, “It was a mistake, I should never have done it.”

29. [35]

    The applicant told Ms Goodwin that he had had sex with the complainant on three occasions. Once in the hallway near a door frame and another time in the kitchen pantry. Ms Goodwin stated that she did not wish to know about the third occasion. She told the court, “I just needed air. I just burst into tears and walked out…onto the verandah.” He said to her, “[the complainant] has a much cuter arse that you’ll ever have”. In cross-examination she agreed that he said to her, “Yeah I fucked her, whatever.” It was put to her that those words were said in the heat of an argument, but she replied they were spoken calmly.

30. [36]

    The complainant’s grandmother gave evidence that the complainant’s mother was married to her eldest grandson, but that he was not the complainant’s father. The complainant had entered her care through “DOCS”. She and the complainant used to argue a lot and when she found out that the complainant had been caught drinking at a hotel she told the complainant that she had to leave. She agreed in cross-examination that the complainant had been in trouble at school and had long-standing mental health problems.

31. [37]

    Detective Senior Constable Elizabeth Dean, the officer in charge, gave evidence that the complainant’s allegation was referred to the Child Abuse Squad in Port Macquarie in May 2012 for investigation. The complainant was interviewed on 30 May 2012 and the applicant was arrested on 7 June 2012. Although he exercised his right to silence he did tell police whilst in the custody area of the police station that he was aware that the complainant was 15 years old and told police, “She turns 16 soon.”

The defence case

1. [38]

   The defence case as put through cross-examination of the Crown witnesses, the evidence of S and the closing address was that the offences did not occur. The defence case relied upon the complainant’s troubled history and mental health issues. Counsel for the applicant pointed to the inconsistencies between Ms Goodwin’s evidence of the applicant’s admissions to her, to the effect that he had sex with the complainant three times including once in the hallway and once in the pantry, and the evidence of the complainant that “sex” had only occurred once and it had occurred in the bedroom.

2. [39]

   It was put to the complainant in cross-examination that the situation had “snowballed.” She saw her counsellor and got some sympathy and was then able to go back her grandmother’s house. She denied this.

3. [40]

   It was put to the jury that Ms Goodwin misinterpreted what she observed and what the applicant told her. There was a history of jealousy and unfaithfulness in the relationship between the applicant and Ms Goodwin.

4. [41]

   Reliance was placed upon S’s evidence that she never saw her father behave inappropriately towards the complainant.

Appeal against conviction

1. [42]

   A Notice of Intention to Appeal was filed on 4 September 2013, in which the applicant sought an extension of time within which to file a Notice of Appeal. An amended Notice of Intention to Appeal was filed on 11 November 2013. The life of the Notice of Intention to Appeal was subsequently extended a number of times, with the expiration date for the last extension being 18 March 2015. A Notice of Appeal was filed on 4 November 2015.

2. [43]

   There was no opposition to the applicant being granted a further extension of time to bring his appeal.

Grounds of appeal

1. [44]

   At the hearing of the appeal the applicant relied upon a number of handwritten and typed documents. That material comprises documents relied upon as submissions, documents relied upon as evidence in support of some of his grounds and other documents relied upon as “fresh” evidence. The applicant initially relied upon five grounds of appeal in his handwritten document headed “Grounds of Appeal,” filed on 4 November 2015. He relied upon a further 10 grounds of appeal as set out in an undated document also headed “Grounds of Appeal,” which forms part of the material filed in support of the appeal. For ease of reference, the ten grounds contained in the second document filed will be re-numbered 6-15 (rather than 1-10)

2. [45]

   The 15 grounds relied upon can be conveniently dealt with in sub-groups. Grounds 2 and 14 will be considered under the heading “fresh evidence.” Grounds 7, 9, 11, 12 and 13 will be considered under the heading “incompetence of counsel.” Grounds 8 and 10 will be considered under the heading “Section 293 of the Criminal Procedure Act” and Grounds 1, 3, 4, 5, 6 and 15 will be considered under the heading “unreasonable verdicts.” Ground 4 will be dealt with as part of the application to seek leave to appeal against sentence.

3. [46]

   It is noted that none of the 15 grounds upon which the applicant relies involves a question of law alone. It has been held that leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) is required to raise a ground of appeal involving a question of fact or of mixed law and fact: Rasic v R [2009] NSWCCA 202 at [12]. See also Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; 178 A Crim R 220 at [2]; Yacoub v R [2008] NSWCCA 164 at [2]; Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 at [44] and at [68]-[71] and Carlton v The Queen [2008] NSWCCA 244 at [10]- [12].

4. [47]

   In the present case, no point having been taken on behalf of the Crown and, in circumstances where the applicant was unrepresented on his appeal, it is appropriate that there be a grant of leave to appeal in relation to the grounds relied upon in the appeal against conviction.

Fresh evidence (Grounds 2 and 14)

1. [48]

   Before turning to consider the evidence of the two witnesses relied upon by the applicant as “fresh evidence,” it is pertinent to note the relevant principles regarding fresh evidence on appeal. These principles are well established in cases including Gallagher v R (1986) 160 CLR 392; Mickelberg v R (1989) 167 CLR 259 and Ratten v R (1974) 131 CLR 510. These principles were conveniently summarised by Kirby J in Abou-Chabake v R [2004] NSWCCA 356; 149 A Crim R 417 at [63] as follows

2. [49]

   Assuming that the evidence is “fresh” and also that it is credible or plausible and this Court admits it on the appeal, the question then is whether, in the context of the evidence given at the trial, it would have been likely to have caused the jury to entertain a reasonable doubt about the guilt of the accused or, to put it another way, whether there is a significant possibility that the jury, acting reasonably, would have acquitted the accused.

3. [50]

   The fresh evidence relied upon by the applicant consisted of two statements: one from his ex-partner Tracey Goodwin and another from a man named Timothy Coulson.

4. [51]

   The applicant filed a signed statement of Tracey Goodwin dated 16 July 2013. This statement post-dates the applicant’s trial, in which she gave evidence on 28 May 2013, by nearly two months. The statement is in the following terms:

5. [52]

   Ms Goodwin was called to give evidence on the appeal. Before she gave evidence, a solicitor employed by Legal Aid NSW provided her with legal advice.

6. [53]

   Ms Goodwin gave evidence that, although she signed the document, it was not drafted by her. She said, “It was drafted by Kees and by his friend.” The friend was Daniel Armfield, who is both a friend of the applicant and her granddaughter’s uncle. This occurred at the applicant’s place. She gave evidence that she “wanted to decline it” but did not know when she was supposed to “say decline.”

7. [54]

   Ms Goodwin stated that she had attended the applicant’s home to visit her daughter S who was residing with him. She went on to state:

8. [55]

   She was told there would not be any conflict. She also stated that she was on "really strong anti-depressants” at the time and only “read it today and realised that there was a conflict of interests.”

9. [56]

   The witness was given a warning under s 128 of the Evidence Act 1995 (NSW). She objected to giving certain evidence and a certificate under that section was granted to her. Of the three paragraphs in the statement she indicated that the middle one was true but the first and last were not. She confirmed that the applicant was able to get an erection, albeit with a degree of difficulty.

10. [57]

    Given the fact that Ms Goodwin did not ultimately adopt the “fresh evidence” said to be a recantation of her evidence at trial, the evidence lacks any cogency. There is nothing in the evidence of Ms Goodwin which would lead this Court to conclude that, in the context of the evidence given at the trial, it would have been likely to have caused the jury to entertain a reasonable doubt about the guilt of the accused.

11. [58]

    The second witness relied upon by the applicant was Timothy Coulson. The applicant relied upon a statement of Mr Coulson dated 27 June 2013 (nearly a month after the trial) which was in the following terms:

12. [59]

    The applicant’s trial solicitor gave evidence on the appeal that he had asked the applicant to provide the names of any potential witnesses and Mr Coulson’s name was never mentioned to him. There is no evidence before the Court as to how the statement came to be created, nor why it was not brought to the attention of the applicant’s legal team at trial.

13. [60]

    Mr Coulson could not be located to give evidence at the hearing of the appeal. The applicant had made no efforts to locate him. At a mention of this matter before the CCA Registrar on 22 April 2016, he told the representative for the Office of the Director of Public Prosecutions that Mr Coulson resided in Taree. Efforts were then made by police to locate the witness in Taree to no avail. When an affidavit to that effect was read by the Crown during the hearing of the appeal, the applicant raised for the first time the fact that Mr Coulson was now living in Forbes. In any event he did not attend this Court to give evidence concerning the statement said to have been made by him.

14. [61]

    In circumstances where the witness did not give evidence in this Court and the Crown was not afforded the opportunity to cross-examine him, the Court does not propose to admit his statement into evidence on the appeal. It is not possible to determine its provenance or even whether it is “fresh” evidence.

15. [62]

    In any event, even if the statement had been adopted by Mr Coulson and it was found to be credible, its contents are of little weight in the context of the evidence called at trial. The conversation contained therein could easily be explained on a number of bases including embarrassment on the part of the complainant and a desire not to talk about the subject matter any further. Even if it had been in evidence at trial, it would not have been likely to have caused the jury to entertain a reasonable doubt as to the applicant’s guilt.

16. [63]

    Grounds 2 and 14 pertaining to “fresh” evidence are not made out.

Incompetence of counsel (Grounds 7, 9, 11, 12 and 13)

1. [64]

   A number of allegations are made by the applicant in the documents filed concerning his solicitor and barrister in support of a contention that his trial miscarried due to the incompetence of his counsel. There are considerable hurdles an applicant must clear in order to establish any ground of appeal asserting incompetence of counsel.

2. [65]

   The starting point is that an applicant is usually bound by the way in which counsel conducts his or her trial. Counsel has a wide discretion to make decisions during the trial. As Gleeson CJ (with whom McInerney J agreed) observed in R v Birks (1990) 19 NSWLR 677 at 685:

3. [66]

   In order to succeed in relation to the grounds of appeal alleging incompetence on the part of his counsel, the applicant must establish that the conduct of his counsel has led to a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912.

4. [67]

   In TKWJ v The Queen [2002] HCA 46; 212 CLR 124, Gaudron J (with whom Gummow and Hayne JJ agreed) observed at [32]:

5. [68]

   Similarly, McHugh J observed the following in TKWJ v The Queen at [52]:

6. [69]

   As Gleeson CJ later observed in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [9]:

7. [70]

   This Court has recently considered these principles in Alkhair v R [2016] NSWCCA 4, Vella v R [2015] NSWCCA 148, Ahmu v R [2014] NSWCCA 312, Outram v R [2013] NSWCCA 329 and Matthews v R [2013] NSWCCA 187.

8. [71]

   The ultimate question for an appellate court is whether the applicant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the applicant lost a chance of acquittal that was fairly open.

9. [72]

   Affidavits from the barrister sworn 7 April 2016 and the solicitor sworn 21 April 2016 were filed in the proceedings. Their affidavits were read at the hearing of the appeal and both lawyers gave further oral evidence.

10. [73]

    There is authority for the proposition that affidavits from an applicant’s previous lawyers should not be read on the appeal as a matter of course.

11. [74]

    In Nudd v R, Gleeson CJ observed the following on the question of whether counsel should be called as a witness in appeal proceedings of this nature (at [10]):

12. [75]

    Similarly, Gummow and Hayne JJ referred in Nudd v R to the applicant’s complaints that his trial counsel had failed to give him proper advice and observed at [27]:

13. [76]

    In Matthews v R, this Court (Hoeben CJ at CL, Leeming JA and Beech-Jones J) observed the following at [63] in an appeal dealing with a ground of incompetence of counsel:

14. [77]

    The question of the admissibility of such affidavit material on appeal was again considered by this Court in Ahmu v R, another appeal in which the applicant contended that he had suffered a miscarriage of justice as a result of trial counsel’s incompetence. Basten JA rejected an affidavit sworn by trial counsel on the basis that it did not add anything to the inferences otherwise available from the course of the trial (at [31]). Adams J took a contrary view and considered the affidavit to be relevant and admissible (at [55]). Fullerton J found it unnecessary to express any concluded view on the question (at [87]).

15. [78]

    More recently in Vella v R, another appeal involving an allegation of incompetence of counsel, evidence from trial counsel was admitted on the appeal. Beech-Jones J (with whom Gleeson JA and Hidden J relevantly agreed) noted at [94], after referring to the decisions in Matthews v R, that there was “…some scope for uncertainty as to the extent to which evidence from an applicant’s former counsel and solicitor explaining their conduct can be received and considered in determining a complaint that a miscarriage of justice arose from it (see Ahmu at [31] per Basten JA and at [53] per Adams J).”

16. [79]

    Finally, it is to be observed that the trial counsel and solicitor were both called to give evidence on appeal in the recent decision of Alkhair v R.

17. [80]

    At least some of the allegations made by the applicant in this appeal could be resolved without the need to have regard to the evidence of the applicant’s trial counsel and solicitor. Despite this, given the seriousness of some of the allegations made and the fact that, as the applicant was not represented, this issue could not be properly ventilated at the hearing of the appeal, I propose to refer to the relevant evidence given by the trial counsel and solicitor in determining these grounds. I do so having regard to the fact that the role for this Court is to undertake an objective inquiry regarding whether there was a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 rather than to conduct an inquiry into what trial counsel did or did not know or consider.

18. [81]

    With the above principles in mind I turn to consider the various complaints made by the applicant concerning his counsel.

19. [82]

    The applicant complains that the evidence of a witness named Rhonda Mills should have been adduced at trial. A statement made by Ms Mills dated 25 June 2012 and headed “Affidavit, Children and Young Persons (Care and Protection) Act 1998” was filed by the applicant with his other documentation. In it Ms Mills states that she knows the applicant and Ms Goodwin and through them met the complainant. She described the complainant as becoming one of her “Facebook” friends. Ms Mills did not allow her daughter to have her own Facebook account, requiring her instead to use Ms Mills’ account. Anyone whom her daughter contacted therefore appeared on Ms Mills’ Facebook feed. She states that the complainant became a Facebook friend “about a month ago” (which would have been a date in May 2012). She then states:

20. [83]

    The applicant’s solicitor gave evidence about this statement at the hearing of the appeal. He stated that he was aware of this statement because he prepared it in relation to care proceedings pertaining to the applicant’s youngest daughter. He did not brief it to counsel for the applicant’s trial. Consistent with this, the barrister’s evidence was that he was not aware of this statement.

21. [84]

    Two reasons were advanced by the solicitor as his explanation for not calling Ms Mills to give evidence at the applicant’s trial. In his affidavit he set out his reason as being that it was hearsay evidence and hence inadmissible. Ms Mills had no evidence as to who the author of the alleged Facebook page was and relied upon her recollection. The solicitor expanded upon this during his evidence on the appeal, stating that the statement had in fact been tendered in the care proceedings in the Local Court. Those proceedings resulted in the applicant’s youngest daughter being placed in the care of the Minister. The solicitor stated that when he sought to tender it the Magistrate’s response was, “This is equally consistent with the complainant covering up for having had sex with a man of that age.” The solicitor stated that the reason he did not seek to have Ms Mills called at trial was, “I thought it was dangerous because….it’d been tested by a tribunal of fact and it had, to, to my way of thinking it was damaging rather than exculpatory…From the words of the Magistrate it could have gone either way. So if I wasn’t sure, if in doubt, don’t.”

22. [85]

    On its face, and even without regard being had to the explanation of the solicitor, the fact that this statement was not briefed to counsel and the witness not called at trial does not amount to a miscarriage of justice in the context of the evidence given at trial.

23. [86]

    This ground is not made out.

24. [87]

    The applicant’s barrister deposed that the applicant’s instructions were that he did not want to give evidence. In addition, the applicant’s solicitor deposed:

25. [88]

    Consistent with the relevant authorities, the forensic decision as to whether an accused person should be called as a witness in his or her own trial is one for counsel to make.

26. [89]

    Whether or not the applicant wished to give evidence, it would have been open to the applicant’s counsel to conclude that there were disadvantages in calling the applicant to give evidence at trial given the allegations made in the Crown case. To the extent that it is relevant to this ground, it is noted that the applicant addressed this Court in the course of the hearing of his appeal. He volunteered his version of what occurred during the interrupted kiss incident outlined at [28]-[31] above. The applicant informed the court of the following:

27. [90]

    The evidence at trial regarding the interrupted kiss was significant evidence in the Crown case. The applicant’s daughter S gave unconvincing evidence that seemed to downplay the significance of it, but at no time was it put to her that she did not or could not have seen any kiss. On the contrary, the applicant’s counsel called S in the applicant’s case and adduced from her that all she saw a “peck”. The applicant’s explanation given on appeal was inconsistent with evidence called in his own case and quite implausible in the circumstances of the evidence given at trial.

28. [91]

    No miscarriage of justice has been established regarding the fact that the applicant did not give evidence at his trial. This ground is not made out.

29. [92]

    The applicant complained that his lawyers failed to adduce at trial medical evidence showing, inter alia, that he suffered from erectile dysfunction. He produced various medical records in support of this ground of appeal.

30. [93]

    The evidence of both the applicant’s barrister and solicitor was that the applicant at no time raised an issue of erectile dysfunction with them. The barrister gave evidence on the appeal that, “…that would have been something, of course, that I would have asked [the solicitor] to get some instructions about and, of course, it would have been an important aspect to raise particularly concerning the evidence of Tracey Goodwin, and that was never an issue.” Similarly the solicitor gave evidence that he was aware of the possibility that the applicant had prostate cancer and was aware that he had “urination problems” but was provided with no medical evidence of this nor any material concerning possible erectile dysfunction.

31. [94]

    As referred to above, Tracey Goodwin gave evidence on the hearing of the appeal that the applicant was able to get an erection, albeit with some difficulty. She stated that that part of her statement dated 16 July 2013 was true.

32. [95]

    None of the medical records provided by the applicant supports the proposition that he was unable to sustain an erection at the time of the offences. They confirm that he was prescribed Viagra in 2010.

33. [96]

    The applicant provided as part of his bundle of documents the letter of instructions to his legal representatives made prior to the trial. There is no reference therein to the question of any erectile dysfunction. The fact that the applicant made no mention of it at that time is consistent with the applicant not having any significant erectile dysfunction at that time.

34. [97]

    Furthermore, and in any event, of the five counts in relation to which the applicant was convicted only two of them included an assertion that the applicant had an erect penis: count 3 was an allegation that the complainant stroked the applicant’s penis until he ejaculated and count 5 was a count regarding an act of fellatio. The other three counts in relation to which the applicant was convicted involved an allegation that the applicant digitally penetrated the complainant’s vagina. In those circumstances, even if some form of erectile dysfunction could be established (which is not the case), it was not relevant to three of the five counts upon which he was convicted

35. [98]

    No miscarriage of justice occurred as a result of the absence of medical evidence at trial. This ground is not made out.

36. [99]

    The applicant alleges that his lawyers forced him to confess his guilt to the Probation and Parole Officer. There is also an allegation that they pressured him to plead guilty before the trial. These two specific complaints appear to form part of a larger complaint that the applicant’s legal team did not try hard enough to secure an acquittal because they believed he was guilty.

37. [100]

    The two specific complaints made by the applicant as part of this ground could not of themselves be relevant to the question of whether the trial miscarried. The fact is that the applicant did not plead guilty and his trial proceeded. Similarly, the allegation that he was coerced into making a false confession to the Probation and Parole Officer is said to have occurred after the trial, so that could not be relevant to whether the trial miscarried. Despite this and in circumstances where the central complaint appears to be one of counsel generally not defending him properly because of a belief in his guilt, I will address the allegations as part of the question of whether the applicant has established that his trial miscarried due to some general approach taken by his legal team.

38. [101]

    The background to the most serious allegation made by the applicant is as follows.

39. [102]

    Upon the applicant’s being found guilty by the jury on 31 May 2013, a Pre-Sentence Report was ordered and the proceedings stood over for sentence. The applicant’s bail was continued. When the matter came on for sentence on 12 July 2013, the transcript of proceedings on that day records that the applicant’s counsel and his solicitor withdrew from the matter due to an “ethical issue.”

40. [103]

    The applicant having now waived privilege in relation to that issue, the applicant’s barrister explained what occurred in his affidavit sworn 7 April 2016. He states that, on 31 May 2013 following the verdict, the barrister, solicitor and applicant held a conference at the Taree court complex. The barrister deposes:

41. [104]

    The solicitor’s affidavit did not refer to the above conversation nor did he give evidence about it. He stated, “I admit that after the verdict that [sic] I advised him to carefully consider his position. At no point while I was instructed by Kees did I ask him to confess to the offending or prepare a confession.”

42. [105]

    A Pre-Sentence Report dated 8 July 2013 was subsequently prepared by Alan Lyness, Probation and Parole Officer from Taree District Office, which included the following under the heading “Attitude to the Offences:”

43. [106]

    The applicant asserts that his solicitor pressured him to admit that he was guilty for the purposes of the proceedings on sentence. In one of the handwritten documents relied upon by the applicant on his appeal entitled “Account of False events and occurrences,” he asserts that:

44. [107]

    The applicant relied upon the fourth and final page of what is clearly a four-page letter sent to him, presumably after trial, by his solicitor. That page was randomly included in a bundle of documents with no explanation regarding its provenance. The applicant did not provide the previous three pages of the letter. Despite being given the opportunity to go through his papers to locate the rest of the letter, he informed the Court that he could not locate it. The solicitor was also asked to locate it, but he gave evidence that he had moved offices a number of times since this trial and was now retired. He has been unable to locate the applicant’s entire file in relation to this matter.

45. [108]

    The page the applicant provided to the Court was in the following terms:

46. [109]

    The copy of the document provided to the Court by the applicant had a significant amount of additional handwriting over it consistent with the handwriting of the applicant elsewhere on handwritten documents filed in this appeal, including words such as “Bullshit Storey (sic) I was intimidated to give to Allen my Probation Officer…” etc.

47. [110]

    It is unfortunate to say the least that the rest of the letter was not made available to the Court by the applicant. In circumstances in which the solicitor has not been able to locate any of his file, the only potential avenue from which the rest of the letter could be sourced was the applicant.

48. [111]

    There are two inferences that could be drawn from the document “page 4” (putting to one side the additional handwriting). Although the applicant did not expressly make this submission, implicit in his complaint is an assertion that the letter supports his claim that his solicitor made up a story for him to tell the Probation and Parole Officer and recorded the contents of the fabricated story in a formal letter signed by him in his capacity as his solicitor.

49. [112]

    The alternate inference is that “page 4” is part of a letter sent to the applicant following the trial confirming the conversation the applicant had with counsel to which counsel deposes in his affidavit. That is, that the applicant confessed his guilt and was advised to repeat that confession to his Probation and Parole Officer.

50. [113]

    Taking into account all of the above I am satisfied that the document “page 4” formed part of a letter confirming the details of the applicant’s conversation with counsel. To the extent necessary in order to deal with this ground of appeal, I reject the allegation made by the applicant that his solicitor and his counsel somehow forced the applicant to tell a false story to the Probation and Parole Officer.

51. [114]

    Similarly, I am satisfied that the applicant’s lawyers did not put pressure on him to plead guilty. Both the barrister and the solicitor deny this allegation. They both provided evidence that they had given the applicant advice about the implications on sentence flowing from a plea of guilty (being advice they are required to give in all trial matters). Even if they had placed pressure on him to plead guilty, which I do not accept, there is nothing in the transcript to establish that the applicant’s counsel did not do anything but conduct a vigorous and spirited defence to the charges.

52. [115]

    Having regard to the trial transcript, the thorough cross-examination of the Crown witnesses, in particular the complainant and Ms Goodwin, and the opening and closing addresses on behalf of the applicant and also noting the fact the applicant was in fact acquitted of Count 6, I am satisfied that there is nothing about the way in which the trial was conducted that gave rise to any miscarriage of justice. On the contrary, the applicant’s defence appears to have been conducted in a highly competent manner.

53. [116]

    This ground is not made out.

54. [117]

    The applicant asserts that statements from numerous community members regarding his “history of good parenting and supervision of their children were not taken into account.” In one of his documents headed “Points of Interest,” he claims he had a “complete file of references.” The only character evidence filed on the appeal by the applicant postdates the trial, being two affidavits of Daniel Armfield dated 10 June 2013 and 31 October 2013 respectively.

55. [118]

    Both the barrister and solicitor deposed that they were not provided with any of the character evidence now raised by the applicant at the time of the trial. The solicitor deposed that he recalled telling the applicant on several occasions that any persons with evidence should attend his office and provide a statement and that for their evidence to be of any value they would have to be prepared to come to court and be cross-examined about it.

56. [119]

    Some character evidence was called through the applicant’s daughter S.

57. [120]

    It is noted that the applicant has a prior conviction for a common assault.

58. [121]

    The applicant did not give evidence at his trial nor did he participate in an ERISP. Accordingly, any character evidence would in any event have been relevant on the question of propensity rather than credibility: Melbourne v The Queen [1999] HCA 32 at [30]-[31]; 198 CLR 1 at 14.

59. [122]

    In circumstances where the applicant did not provide any character evidence to his solicitor and/or barrister, it could not be said that the trial miscarried due to the incompetence of his counsel as a result of the evidence not being called. This ground is not made out.

60. [123]

    Although this complaint was not a ground of appeal, in the material provided to this Court there was complaint made that the complainant was not cross-examined about whether she made up the allegations in order to get victims’ compensation and buy new Kia car. In a document headed “Comments of [the complainant] (not cross-examined or produced in court),” a conversation is recounted in which the complainant is alleged to have said to a friend on the telephone in the presence of the applicant, prior to the allegations made, “Really, you can get victim’s compensation for that?” This conversation was said to have taken place after the complainant had told the applicant that she wanted a “new Kia” and got angry when the applicant said he could not afford one.

61. [124]

    Both the barrister and the solicitor deposed to the fact that this conversation had never been brought to their attention. Consistent with this, it is not contained in the signed instructions provided to his counsel prior to the trial.

62. [125]

    Whether or not this conversation took place, it was not brought to the attention of counsel, is not fresh evidence and the fact that it was not put to the complainant at trial does not give rise to a miscarriage of justice.

63. [126]

    None of the grounds alleging miscarriage as a result of incompetence of counsel have been made out.

64. [127]

    Grounds 7, 9, 11, 12 and 13 are dismissed.

Section 293 of the Criminal Procedure Act (Grounds 8 and 10)

1. [128]

   Grounds 8 and 10 assert that the applicant’s counsel failed to adduce evidence of the complainant’s prior sexual experience as well as statements from previous men in her family whom she had accused of sexual assault.

2. [129]

   The evidence of both the applicant’s barrister and solicitor is that none of this material was ever brought to their attention.

3. [130]

   In any event, such evidence would not be admissible by virtue of s 293(3) of the Criminal Procedure Act 1986 (NSW), which provides:

4. [131]

   Although exceptions are provided for in s 293(4) and (6) of the Criminal Procedure Act 1986, there is nothing to suggest that the material would fall into any of those exceptions.

5. [132]

   Section 293 has been held to preclude cross-examination about previous false complaints: R v M (1993) 67 A Crim R 549; R v Bernthaler (NSWCCA, Kirby P, Badgery-Parker J, Ireland J, 17 December 1993, unreported).

6. [133]

   Grounds 8 and 10 are not made out.

Unreasonable verdicts (Grounds 1, 3, 6 and 15)

1. [134]

   Encompassed in these grounds are assertions both that the verdicts were unreasonable and also that the acquittal on Count 6 was unable to be explained and hence the verdicts are inconsistent.

2. [135]

   To the extent that the applicant complains that the complainant’s evidence was uncorroborated (Ground 3), the requirement of corroboration of the evidence of a complainant has not been necessary for some time: see s 164 of the Evidence Act. It is noted that the trial judge gave a “Murray” direction at the trial: R v Murray (1987) 11 NSWLR 12; (1987) 30 A Crim R 315.

3. [136]

   The applicant makes complaint that the complainant did not immediately go to a hospital and be examined in order to obtain forensic evidence (Ground 5). Although this fact made the Crown case weaker, it does not follow that the verdicts were unreasonable. Three of the counts did not involve an allegation that would have necessarily yielded forensic evidence in any event, being three counts of digital penetration.

4. [137]

   The applicant relied upon the fact that the trial judge made an observation at the time of sentencing the applicant regarding his Honour’s reconciliation of the verdict of not guilty on Count 6 with verdicts of guilty on Counts 4 and 5. The applicant relies upon these comments in support of a proposition that the verdicts are inconsistent. His Honour observed the following in his Remarks on Sentence:

5. [138]

   As was noted by the trial judge, in this case there is a proper way to explain the jury verdicts. The principles regarding the question of inconsistent verdicts are well established. In Mackenzie v R [1996] HCA 35; (1996) 190 CLR 348 at 367. Gaudron, Gummow and Kirby JJ observed the following:

6. [139]

   Their Honours went on to observe at 368:

7. [140]

   The relevant test is whether the verdicts are an “affront to logic and common sense” and strongly suggest a compromise of the performance of the jury’s duty. The focus is on any explanation for an acquittal, not a conviction: R v TK [2009] NSWCCA 151; 74 NSWLR 299 per Simpson J (with whom McClellan CJ at CL and Latham J agreed) and Raumakita v R [2001] NSWCCA 126; 210 A Crim R 326 at 35 per Johnson J (with whom Hoeben CJ at CL and Button J agreed).

8. [141]

   Having regard to the fact that there are explanations for the verdict of acquittal on Count 6, I am not satisfied that the jury compromised its verdict in relation to Count 6 in any way.

9. [142]

   As for the other grounds alleging, in effect, that the jury should not have convicted him, I approach this task in accordance with the well-established principles in M v The Queen [1994] HCA 63; (1994) 181 CLR 487, MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 and SKA v The Queen [2011] HCA 13; 243 CLR 400. This Court is required to examine all of the evidence and determine whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The relevant principles were recently re-stated by this Court in Elwood v R [2016] NSWCCA 18 by Meagher JA (with whom McCallum and Button JJ agreed) as follows:

10. [143]

    The complainant gave evidence and was cross-examined. Hers was a cogent account of a relationship between her and the applicant, a much older man whom she regarded as a father figure. The context evidence shows a gradual sexualisation of that relationship. Some of this context evidence was observed by Ms Goodwin and was not disputed, such as that regarding the complainant walking around in her underwear and watching television under a blanket on the couch with her legs draped over the applicant’s lap.

11. [144]

    Although there was evidence of the complainant’s mental health history and other attacks made on her credit, an examination of the transcript of the evidence she gave at trial as well as the transcript of her interview with police leads me to conclude that there was nothing about her evidence which meant it ought not to have been accepted. When it was put to her in cross-examination that it suited her to make an allegation against the applicant, the complainant said, “There is nothing I need to lie about, nothing. I’m trying to do my HSC, and I’m sitting here talking to you and you’re calling me a liar. I’m not lying about anything. No one wants to be in this position…”

12. [145]

    The evidence of Ms Goodwin as to admissions made by the applicant, whilst not accepted expressly in relation to Count 6, were nonetheless still capable of being relied upon in general terms. Ms Goodwin was cross-examined vigorously and maintained her version of events. She denied that she had misinterpreted the relationship between the applicant and the complainant.

13. [146]

    Of particular significance in the narrative was the evidence of the interrupted kiss. Three witnesses gave evidence of this: the complainant, Ms Goodwin and S. Even though the applicant’s daughter S sought to downplay the event in her evidence in court, the fact remains that she saw something that she immediately reported to her mother.

14. [147]

    Having had regard to all of the evidence, I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt. These grounds of appeal have not been made out.

Conclusion regarding conviction appeal

1. [148]

   None of the grounds of appeal against conviction having been established, the appeal against conviction is dismissed.

Application for leave to appeal against sentence

1. [149]

   The focus of the applicant’s written submissions and before this Court was on the appeal against conviction. By the time of the applicant’s proceedings on sentence he was represented by different lawyers from those who represented him at trial.

2. [150]

   Of the 15 grounds of appeal relied upon by the applicant, only Ground 4 was referable to the proceedings on sentence:

3. [151]

   This complaint can be easily dealt with. It is no doubt a reference to the fact that, during the Remarks on Sentence, Williams DCJ referred to the evidence of Ms Goodwin and the confession made to her by the applicant. At no stage did his Honour state that the applicant had confessed “to the court.” No error by his Honour is disclosed in this regard.

4. [152]

   No other grounds of appeal are relied upon. Nor does the applicant assert that the sentence imposed on him was manifestly excessive.

5. [153]

   The applicant was sentenced in relation to five sexual assaults on a child. The four offences contrary to s 66C(4) of the Crimes Act carry a maximum penalty of 12 years’ imprisonment and the offence contrary to s 61M(2) of the Crimes Act carries a maximum penalty of ten years’ imprisonment with a standard non-parole periods of eight years’ imprisonment.

6. [154]

   It is noted that the applicant’s non-parole period expires on 10 November 2016.

7. [155]

   In circumstances where no grounds of appeal are relied upon, leave to appeal against sentence is refused.

8. [156]

   I propose that the Court make the following orders:

   1. (1)

      Grant leave to appeal against conviction.

   2. (2)

      Dismiss the appeal against conviction.

   3. (3)

      Refuse leave to appeal against sentence.