AA v R

1. [1]

   ADAMSON JA: AA (the applicant) seeks leave to appeal against his convictions for one offence of sexual touching without consent (count 1) and two offences of sexual intercourse without consent (counts 2 and 3), each of which was alleged to have been committed on 23 August 2022. At the time of the alleged offences, the complainant had been married to the applicant for 13 years. They had had four children together.

2. [2]

   The applicant was tried by jury over which Baker SC DCJ presided. The trial commenced on 14 May 2024 and concluded with the return of the jury’s verdicts of guilty on 23 May 2024. The trial judge imposed an aggregate sentence of 5 years and 10 months imprisonment commencing on 20 May 2024 and expiring on 19 March 2030, with a non-parole period of 4 years. The applicant will be eligible for parole on 19 May 2028. There is no challenge to the sentence.

3. [3]

   Leave to appeal is required as the appeal does not involve a question of law alone: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

4. [4]

   The sole proposed ground of appeal is that an alleged miscarriage of justice occurred as a result of the conduct of the applicant’s trial counsel. The particulars of this ground are:

5. [5]

   It is important to note that the particulars do not include an allegation that the applicant did not appreciate that he was entitled to give evidence at the trial. Rather, the attack in particular a. above is on the advice which preceded his decision not to give evidence. Mr Moutasallem, who appeared on behalf of the applicant, confirmed this to be the position at the hearing of the application for leave to appeal and did not read portions of the applicant’s affidavit read on the application in this Court which were either to the contrary, or which were capable of being read as amounting to a complaint that the applicant was not made aware of his right to give evidence.

6. [6]

   The conviction was challenged on the basis that the advice given by the applicant’s trial counsel was:

   1. (1)

      incomplete because it did not sufficiently highlight the advantages of his giving evidence and the disadvantages of his not giving evidence; and

   2. (2)

      incorrect because he ought to have been advised to give evidence.

7. [7]

   To address the ground of appeal, it is necessary to set out in some detail the evidence in the Crown case, including the concessions obtained by defence counsel from prosecution witnesses and with respect to the tender of documents.

8. [8]

   For the reasons which follow, I consider that the appeal lacks merit. Ordinarily lack of merit would not warrant a grant of leave to appeal. However, the importance of the questions raised is such that I am persuaded that leave to appeal ought be granted.

The Crown case

1. [9]

   The Crown case comprised the evidence of the complainant, the complainant’s sister (SN) and three investigating police officers. The complainant gave evidence and was cross-examined on 15 and 16 May 2024. The evidence of the prosecution witnesses, each of whom was cross-examined was completed on 16 May 2024. The prosecution case was formally closed on 17 May 2024. There was no defence case.

2. [10]

   The complainant gave evidence of the events of 23 August 2022 as follows. At about 8.15am, after the children of the applicant and the complainant had left for school, the applicant came downstairs and asked the complainant to go upstairs to have sex. She responded, “I don’t want to have sex with you. There is no way I’m going to do it”. The applicant dragged her up the stairs by hand and pushed her up the stairs. The complainant again said, “I don’t want to do anything with [you]”. The applicant undressed, lay down next to her on the mattress and started to kiss her and touch her breasts (count 1). He took her top off and started to suck her breasts. He removed her pants and started to finger her (count 2). Her evidence included the following:

3. [11]

   The complainant explained why she did not continue to tell the applicant to stop as follows:

4. [12]

   The complainant was cross-examined extensively about the offending conduct. The propositions put to her and her responses are summarised below:

   1. (1)

      after the children had gone to school, the applicant approached her while she was sitting on the chair in front of the computer and put his hands on her shoulder (with which the complainant agreed);

   2. (2)

      the applicant said to the complainant, “You look so cute today, I love you so much. What do you think, should we go upstairs now and make love?” (which the complainant denied and said that he said, “Let’s go upstairs and have sex”);

   3. (3)

      the applicant lay on the mattress next to the complainant and started to hug and kiss her (with which the complainant agreed);

   4. (4)

      the applicant removed his clothes and helped her remove her trousers (with which she agreed);

   5. (5)

      the complainant asked the applicant to massage her vagina with oil and he did massage her vagina (which she denied);

   6. (6)

      the complainant asked the applicant to suck her breast (which she denied);

   7. (7)

      the complainant removed her shirt herself (which she denied);

   8. (8)

      the complainant was on top during intercourse (which she denied);

   9. (9)

      it took about two minutes before the applicant ejaculated (which she accepted);

   10. (10)

       once he had finished, the applicant cleaned himself with a shirt and gave her the same shirt to clean herself (with which she agreed); and

   11. (11)

       after the intercourse, the applicant and the complainant went into separate bathrooms, each took a shower and then came downstairs (which the complainant accepted).

5. [13]

   The complainant agreed in cross-examination that she had washed the bedding that had been on the mattress where the alleged offending had occurred. She said that she did not consider whether or not to report the matter to police on that day. The complainant said in cross-examination that she only decided to report the alleged offending conduct on the night of 29 August 2022.

6. [14]

   The trial judge rejected the Crown’s application to rely on certain evidence as tendency evidence but permitted some of the evidence to be relied on as background evidence of context or the relationship.

7. [15]

   At the time of the trial, the complainant, who was born in Pakistan in 1981, was 43 years old. In 1995, she migrated to Australia with her family, including her older sister, SN, and five other siblings. In August 1998, the complainant became an Australian citizen. She married in 1999 and, in May 2008, separated from her first husband, following which they divorced. Following their separation, the three children of the complainant’s first marriage lived with the complainant’s first husband.

8. [16]

   The complainant’s father insisted that she attend a cousin’s wedding in November 2008 in Pakistan with a view to her finding a suitable partner. The complainant explained that her family did not share the view, otherwise prevalent, that a divorced woman was regarded by the culture as a “bad omen” and, for that reason, not supposed to attend weddings in case her presence would affect the bride’s happiness.

9. [17]

   The complainant remained in Pakistan after the wedding and, in December 2008, met the applicant. On 1 January 2009, about a week after their meeting, they married. The complainant agreed in cross-examination that she was not under any pressure to marry the applicant. SN also gave evidence that the complainant was “free to choose” whether she married the applicant.

10. [18]

    In August 2009, the complainant (who was already pregnant) returned to Australia with the applicant, who entered Australia on a spouse visa. The applicant eventually became an Australian citizen in about July 2014.

11. [19]

    On their return, the complainant worked as an interpreter. Her evidence was:

12. [20]

    The applicant forbad the complainant from seeing her three children from the first marriage.

13. [21]

    The complainant described the marriage as follows:

14. [22]

    According to the complainant, the applicant made her throw out all of her clothes. He took particular exception to her boots. In accordance with his demands, she wore “just long dresses which covered the whole body”. From the beginning of the marriage, the applicant denigrated the complainant for being fat and said that she did not look too fat in the traditional dresses. The complainant described her response to these demands as follows:

15. [23]

    The applicant also told the complainant that she was supposed to be wearing a burqa or hijab. At that time, she did not wear either of these forms of headwear but in 2015 she chose to wear a hijab.

16. [24]

    The applicant forbad the complainant from wearing makeup, including lipstick. The complainant’s evidence was:

17. [25]

    The complainant and the applicant had four children, all boys, who were aged, at the time of trial, 14 (born February 2010), 11 (born August 2012), 9 (born February 2014) and 8 years old (born November 2015). The applicant did not want daughters and told the complainant that if she had a girl he would take her back to Pakistan and stone her to death in accordance with Sharia law. According to the complainant, he told her: “I can’t do anything to you here, but in Pakistan I can. So if you ever have a girl, you know, I wouldn’t let you stay here, I will take you back there”. She responded that she could not control this and that it was up to Allah. Every day he would abuse her by calling her “a whore, a slut, a prostitute, an ugly fat cow, a loser, someone who had nothing, someone who had lost her parents, someone who didn’t have a family to run to …”.

18. [26]

    The applicant sought to control and monitor the complainant’s mobile phone usage. Her evidence was:

19. [27]

    The complainant explained that the applicant called her these things in his native language, which “sounds quite bad” (and worse than in English) and that he said it with anger and hatred.

20. [28]

    The complainant gave evidence that the applicant sought to control her social life and stop her from having any friends of her own. She said that he would ask her so many questions about her whereabouts that she “just didn’t bother to make friends”. She would only leave the house to go to work. When she was outside the house, he would keep texting her to find out where she was and when she was coming home. She “hated” his conduct and would “scream at him [and] hang up the phone on him [and] wouldn’t reply … to the messages”. When he kept calling her, she “would just block him on the phone”.

21. [29]

    The complainant gave evidence that the applicant was physically violent towards her. She recalled that he slapped her in 2010 and recalled reporting it to police.

22. [30]

    The complainant attended the Liverpool police station on 28 February 2012 to report the applicant’s conduct towards her. The relevant Computerised Operational Policing System (COPS) report contained the following entry commencing on 28 February 2012:

23. [31]

    This COPS report was not tendered at the trial, as a result of negotiations between counsel. However, the applicant’s trial counsel was concerned, as set out below, that if the applicant chose to give evidence, there was a risk of its being tendered and admitted into evidence.

24. [32]

    The complainant’s mother died of breast cancer and, in 2014, her father died of renal failure. The applicant told the complainant that she would not live long as her parents were both dead, whereas his own parents were still alive.

25. [33]

    In 2014, the applicant was diagnosed with tuberculosis. The complainant agreed that the applicant was prescribed steroids for this condition but said that he did not complete the course of medication. At about that time, he started to drive for Uber and to drive hire cars. The complainant said that he did not give any of his income to her. She maintained that he did not even once earn money for the family.

26. [34]

    In re-examination of the complainant, the following exchange occurred:

27. [35]

    The complainant had previously been close to her own family members, who were, when she and the applicant returned from Pakistan, happy that she was in fact married. However, in about 2014 or 2015, the applicant forbad her from seeing her family, with the consequence that she did not see her family until the end of 2022. The complainant said that the applicant had “suddenly decided that … he [didn’t] want [the complainant] to have contact with [SN] … because of the AVO [the complainant] had taken against him”. It is not clear from the evidence whether this related to the previous AVO or the subsequent one made in 2017 (see below).

28. [36]

    In 2017, the applicant hit the complainant with a bottle of water on her shoulder and threw an iPad at her. The complainant reported this to police. The police came to the house to interview her about the alleged assault.

29. [37]

    The complainant later identified the incident with the water bottle as having occurred on 22 September 2017, following which she messaged her neighbour, whom she asked to call the police. The police made an interim AVO, charged the applicant with intimidation and common assault, arrested him and “took him away”.

30. [38]

    The water bottle incident was the first occasion on which the complainant told SN what had been happening between her and the applicant (although she did not mention any forced sexual activity without her consent). SN’s evidence was:

31. [39]

    When asked to give examples of what the complainant told her at this time, SN said:

32. [40]

    According to the complainant, she told SN in 2017 how the applicant used to treat her (although not about the forced sexual intercourse). SN told her that she “should be talking to the police and getting a divorce from him”.

33. [41]

    The complainant also called police on 29 September 2017 but the police did not arrest the applicant on that occasion.

34. [42]

    A COPS report relating to this second incident was created and read as follows:

35. [43]

    The applicant, who represented himself in the Local Court, was found guilty of both charges (intimidation and common assault) and the AVO was confirmed. At that time, the applicant was working as a security guard and lost his security licence as a consequence. The complainant attended the sentence hearing, at which a bond was imposed, but did not give evidence.

36. [44]

    Subsequently, the complainant applied for revocation of the AVO which had been made in September 2017. The application for revocation was listed for hearing in the Local Court at Liverpool on 28 November 2017. The complainant’s evidence in chief, which had been pre-recorded, was played to the Local Court at Liverpool. In her recorded evidence, she said that she wanted to “take the AVO back”.

37. [45]

    SN’s evidence about the complainant’s application to have the AVO revoked was:

38. [46]

    In her evidence in the trial, the complainant said that the applicant “manipulated” her into getting the AVO revoked, which she achieved in the Local Court at Parramatta after paying a lawyer $3,500. In cross-examination in the trial, the complainant was shown a document which she confirmed that she had typed herself, which included the statement, in her handwriting, “I don’t feel intimidated or scared”. She responded that she wrote the document “under pressure and under manipulation by [the applicant]”.

39. [47]

    In her re-examination in the trial, the complainant said that the only reason she created the document was that she was scared of the Department of Community Services (DOCS) getting involved and that DOCS would take the children away and give them to foster parents. However, she agreed that she had not given that explanation at the time or subsequently when she was giving any of her three statements to police following the alleged offending conduct. In re-examination, she explained why she had added the handwritten words as follows:

40. [48]

    The applicant appealed against the bond imposed by way of sentence by the magistrate of the Local Court, in part because he wanted to get his security licence back. The complainant accompanied the applicant to the District Court at Parramatta for the appeal. She could not recall a document which she had prepared being given to the judge on that occasion but accepted that it might have been.

41. [49]

    The document dated 28 November 2017 was shown to the complainant in her cross-examination in the trial. Her recollection was that it was not given to the magistrate but rather to the judge on the sentence appeal. The complainant agreed that she had written in the letter:

42. [50]

    The complainant said that the applicant had “manipulated [her] into writing this letter” and that the applicant “forced [her] to write this for him, because he wanted me to take the AVO back” and that it was “a lie” because the applicant “was never a great father”.

43. [51]

    At this time, the complainant was still in contact with SN, despite the applicant’s view that SN was interfering too much in family matters. The complainant said in evidence:

44. [52]

    In 2017 the applicant reiterated the prohibition against the complainant being in contact with SN. SN’s evidence was that at this time the complainant told SN not to contact her. SN gave evidence, explaining the applicant’s view that she was a bad influence on the complainant, as follows:

45. [53]

    The complainant said that, as a consequence, she did not believe that she spoke to SN from 2017 until 2022, when SN contacted her at their new house in 2022. SN said that after that conversation with the complainant, she did not contact her again for almost six years until she called in unannounced to the complainant’s home in August 2022.

46. [54]

    On 11 April 2021, the complainant called the police but no AVO was made. The complainant had difficulty remembering the details of her reports to the police. However, she did recall that when she told police that the applicant had made fun of her and spoke badly about her to the children, the police told her that an AVO was not the right process and that she needed a family lawyer. The complainant said that she did not tell the police about the sexual and physical assaults because the children were around and she did not want them to hear “anything like that”.

47. [55]

    The COPS report for 11 April 2021 recorded as follows:

48. [56]

    The COPS report for 17 April 2021 said as follows:

49. [57]

    The complainant’s evidence at trial was that the applicant would want to have sex once or twice a week with her. She would say that she did not want it and that she was not interested but he would force her to have sex with him anyway. She explained what she meant by “force” in this context, as follows:

50. [58]

    The complainant said in cross-examination that the applicant did not wear a condom and wanted to have seven children. She did not want to have any. She used a Mirena device for contraceptive purposes and had a tubal ligation in November 2018. She denied that she and the applicant had ever “lovingly engaged in sexual intercourse … during [the] marriage”, including when each of their children was conceived.

51. [59]

    As referred to above, SN’s evidence was that she resumed contact with the complainant in August 2022, several years after the complainant had told her to cease contact at about the time of the revocation of the AVO. SN called in unannounced and they resumed contact with each other. SN gave evidence that the complainant told her about the applicant’s verbal abuse of her, which included his saying:

52. [60]

    SN’s evidence was that she responded by telling the complainant that the complainant’s relationship with the applicant had not changed in the years during which SN and the complainant had not had contact.

53. [61]

    In cross-examination, the complainant agreed that on Saturday 20 August 2022, she may have had a driving lesson with the applicant in the Toyota Kluger . Afterwards, the complainant went to SN’s house. The applicant picked her up from there to take her home but their eldest son remained for a sleep-over at SN’s house. The complainant did not recall whether the applicant had given her a massage or whether they had had sex that night. She agreed that it was usual for her to be on top when they had intercourse. Although the complainant could not recall the exact date, she agreed that after intercourse concluded, the applicant cleaned himself with a shirt and gave her the same shirt to clean herself.

54. [62]

    The complainant confirmed that she was and still is a practising Muslim. When she asked the applicant for a divorce, he told her that if she ever wanted him to divorce her, he would “pee in [her] mouth”. The complainant told members of the applicant’s family about his conduct, “they all took his side, and none of them listened to [her]”. She explained why, up to August 2022, she did not divorce him:

55. [63]

    The applicant’s trial counsel put various propositions to the complainant in cross-examination with which she did not agree or which she did not recall, including: that they had had sexual intercourse on the night of Saturday 20 August 2022 (which she did not recall); that the applicant told the complainant on the morning of Sunday 21 August 2022 that he missed his son (who was at SN’s place, having a sleep-over) (which she denied); and that the complainant had told the applicant that she did not want to have such a long break between sexual intercourse and that he kissed her and assured her that they would not have such a long break (which she denied).

56. [64]

    Defence counsel put various propositions to the complainant about what had occurred on 23 August 2022 after the alleged offending conduct. These are listed below together with the complainant’s responses to these propositions which are included in parentheses after the relevant proposition, as follows:

    1. (1)

       a family friend phoned and asked if she could visit which led to the complainant asking the applicant if they should let her come, to which he responded, “Why not”, following which the complainant told the caller that she could come over (which the complainant did not recall);

    2. (2)

       the applicant offered to cook lamb korma for the guests (which the complainant did not recall);

    3. (3)

       the applicant received a phone call from Muhammad Saleem, his boss, asking him to come to work that day, to which he responded that he could not come as they had guests coming that day for lunch (the complainant denied this, saying that the applicant did not usually start work until 3pm anyway after the children came home from school);

    4. (4)

       the applicant was working at the time (the complainant said that he told her as much but she did not ever see the income he was earning and did not know where he was going when he left the house);

    5. (5)

       after the complainant had checked that they had all the necessary ingredients (for lamb korma), the applicant started to cook for the lunch, with the complainant’s help (the complainant did not recall this);

    6. (6)

       the couple’s friends, Salman and Zainab, arrived for lunch with their newborn baby (which the complainant accepted);

    7. (7)

       Salman and the applicant were in the kitchen and the complainant and Zainab were in the living room (which the complainant accepted);

    8. (8)

       when Salman saw the applicant add yoghurt to the meal, he said that his wife did not eat yoghurt so the applicant went to a Thai restaurant in Liverpool to buy food for her (which the complainant accepted); and

    9. (9)

       at about 3.30pm, the applicant left the house to go to work (the complainant agreed that he had left the house at that time).

57. [65]

    On 23 August 2022, after the alleged offending conduct, Dr Ranessa Sebastian, the complainant’s general practitioner at the Women’s Health Centre in Liverpool, rang the complainant to advise her to go to the Emergency Department at Liverpool Hospital because her blood count was very low.

58. [66]

    On the same day as the alleged offending conduct, the applicant spoke to the complainant about what had happened. Her evidence was:

59. [67]

    In cross-examination, the complainant agreed that she “might have” bought prawns for the applicant on Wednesday 24 August 2022.

60. [68]

    The complainant agreed in cross-examination that on Saturday 27 August 2022 the following exchange may have occurred between herself and the applicant when she asked the applicant to drive her to SN’s place: the complainant asked where the (Toyota) Kluger car was, to which the applicant responded that he had sold it; she said, “I like the Kluger, you should not sell it”; when the children got into the car, the complainant said, “Your dad got us an old car”. The complainant agreed that by 8pm on Sunday 28 August 2022, their eldest son (who had slept over at SN’s on the previous night) was still not home and the applicant asked her to call SN to see what time they were coming home and the complainant agreed to do so.

61. [69]

    It was put to the complainant in cross-examination that the applicant said to her, “I think due to [SN], discipline of our house is getting disturbed and we should keep some limits. For next time, don’t leave [our eldest son] for an overnight stay. I don’t want troubles in our house like we had in 2017”. She agreed that the applicant would have said something like, “I don’t want troubles in our house like we had in 2017”.

62. [70]

    The complainant finally attended Liverpool Hospital on Monday 29 August 2022 (a week after the alleged offending conduct and Dr Sebastian’s advice that she ought do so). On that day she was given a blood transfusion and an iron transfusion. Her sister, SN, was with her while she was having the transfusions. The complainant agreed in cross-examination that she and the applicant were in contact by phone during the day and that the applicant had agreed to pick the children up from school (which she said was the only time in their marriage that this had occurred). The complainant also agreed that the applicant had sent a WhatsApp message with pictures of the food he had bought for the children. The complainant agreed that she told him that SN had brought food for her in the hospital. SN gave evidence that the applicant kept calling the complainant in hospital and laughing at her and saying, “You don’t need blood. You’re fine. I don’t know why you’re sitting in there. You’re a joke”.

63. [71]

    SN and her husband drove the complainant home from the hospital after the treatment.

64. [72]

    That evening, SN and the complainant exchanged texts as to how the complainant was and whether the police had arrived (see below). The complainant had not told SN about the offending conduct at that time, although SN was aware that the applicant had hit the complainant previously.

65. [73]

    SN’s evidence of dropping the complainant off was as follows:

66. [74]

    The complainant’s evidence as to what occurred when she returned home from the hospital at 9pm or 10pm was as follows:

67. [75]

    In cross-examination, the complainant agreed that she had asked the applicant why he had not given the children food, to which he responded that he had already provided food for them. She agreed that her response to him at the time may have been, “They are growing up, that’s why they are hungry again”.

68. [76]

    The complainant’s evidence was that the applicant had pushed her with an open hand as she was leaving the house (this charge was on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) for which the trial judge found him guilty). Her response was:

69. [77]

    In cross-examination, the complainant agreed that when the applicant said to her, “Come back inside, don’t stand outside”, she had responded, “either you will live in this house or I will live in it”. The complainant agreed that the applicant then went inside and told the children to go to bed before coming outside and saying to her, “it’s cold outside, please come in”. The complainant agreed that she told him, “I destroyed my health due to you and I don’t want to stay with you anymore”.

70. [78]

    The applicant told her not to call the police and that, if the police came for him, he would tell them that she was a bad mother and that DOCS would get involved. The complainant called the police and waited for them outside the house until 1, 2 or 3am but they did not come. In cross-examination, she agreed that she had called the police “[b]ecause [she] was sick of him”.

71. [79]

    Eventually, the complainant came inside to sleep because it was “very cold” outside and she was tired from the transfusions. In a text to SN, she said that she had slept between 2pm (which was corrected to 2am) until 5.30am.

72. [80]

    The complainant was cross-examined about her state of mind on 30 August 2022 in the following exchange:

73. [81]

    The following morning, 30 August 2022, the complainant sent the children to school, did some interpreting work and attended the Liverpool police station to complain that she had called the police the previous evening but they had not attended. She agreed in cross-examination that she left the house without telling the applicant where she was going. She did not say anything about the sexual assault as she was at the front counter of the police station. The police officer explained that the police would not come in response to “a small argument at home”.

74. [82]

    The complainant gave evidence in cross-examination that, in August 2022, she worked as a freelance casual interpreter for different agencies, including hospitals, “the legal system”, Centrelink and ParentsNext. The complainant agreed in cross-examination that she also interpreted in courts for alleged victims of domestic violence and came into contact with Domestic Violence Liaison Officers (DVLO) whom she knew to be specifically trained and allocated to help such alleged victims. She agreed that she asked to speak to a DVLO when she went to the Liverpool police station in August 2022 but that there was not one there. She agreed that her statement said that she had spoken to a female police officer but she did not recall that she had done so. She maintained in her cross-examination that she had not reported the alleged offending conduct at the Liverpool police station because there was no female police officer there and said that the statement was incorrect in that respect. She was cross-examined extensively about the disparity between her statement and her evidence in that respect.

75. [83]

    Following her attendance at the Liverpool police station, the complainant communicated with her sister, SN, including by text messages and they went to the Liverpool Women’s Health Centre. The complainant explained that she thought that they might be more helpful than the police as she had been there before. They remained together at the centre. SN gave evidence to similar effect.

76. [84]

    After they had been to the centre, the complainant and her sister went to collect the complainant’s children from school. The complainant agreed in cross-examination that the applicant was “hanging around outside the school, outside the house” when they arrived and asked SN where she was taking his children. The complainant said, as far as she knew, the applicant was not aware that she had gone to the police station and tried to talk to police. The complainant said that as soon as the applicant saw SN’s car, he pulled over behind her car.

77. [85]

    When the applicant’s trial counsel put to the complainant that SN had used a cricket bat to damage the applicant’s car, she denied it. She also denied that the police had ever discussed the allegation with her. The complainant said that there was a cricket bat in SN’s car because SN’s husband plays cricket. She agreed that there was a cricket bat in SN’s hand at one point outside the school. The complainant denied that she was contacted by police about this incident and said that she did not know whether SN had been contacted about the incident. The complainant agreed in cross-examination that the applicant had told them that he was going to call the police.

78. [86]

    SN’s evidence was that SN used her husband’s cricket bat (which was in her car) to hit the applicant’s car because she was so angry with his behaviour, which involved abusing her dead parents. In cross-examination, SN agreed that when she made a statement to police on 16 September 2022, she did not want to, and did not, tell the police that she had hit the applicant’s car with a bat.

79. [87]

    The COPS report for 1 October 2022 said:

80. [88]

    After this altercation with the applicant, SN drove the complainant and the children to SN’s place. SN’s evidence as to what occurred there was:

81. [89]

    That evening a close male friend of SN’s husband’s dropped SN and the complainant at the Green Valley police station, where the complainant made a statement about the alleged offending conduct. When they were still outside in the foyer, it was SN who first spoke to police. Constable Hannah Forrell then took the complainant and SN into a private room. The complainant was then interviewed by a female police officer (in the absence of SN) in the private room, following which she made a statement.

82. [90]

    Detective Senior Constable Ellma Jones attended the Green Valley police station to assist. Her evidence was that on entering the room where the complainant was, “the complainant appeared to be upset and nervous. She was crying and her hands were shaking”. SN’s evidence was that the complainant was “[a]bsolutely broken ... she couldn’t even walk by herself … [s]he was a complete mess”.

83. [91]

    The defence case about the complainant’s motive was put to her in the following exchange in cross-examination:

84. [92]

    The complainant made a total of three statements to the police, dated 30 August 2022, 19 October 2022 and 9 February 2023. The complainant confirmed in cross-examination that the first time she told SN that the applicant was forcing her to have sex with him was on the night of 30 August 2022, which was after the incident with the applicant and the cricket bat.

85. [93]

    On 30 August 2022, the applicant was arrested and an interim AVO was put in place for the protection of the complainant and their four sons. As was his right, the applicant declined to participate in a recorded interview. The complainant agreed that the applicant had not been allowed to see his children since 30 August 2022. She also said that she and the children had moved to Melbourne “a few months ago”.

The defence case

1. [94]

   There was no defence case, as such, in that no evidence was called on behalf of the applicant. However, the applicant’s trial counsel indicated in her brief opening following the Crown opening address pursuant to s 159(1) of the Criminal Procedure Act that the applicant maintained that the sexual touching and sexual intercourse which occurred between the applicant and the complainant on Monday 23 August 2022 (the time of the alleged offending conduct) was consensual. The complainant was challenged in cross-examination to that effect by the applicant’s trial counsel.

2. [95]

   The defence case was that the complainant had a clear motive to lie and wanted the applicant to be convicted because she wanted to separate from the applicant and keep custody of the children without the risk of DOCS becoming involved.

3. [96]

   The defence case was that, because of her motive and the matters referred to below, the complainant was not sufficiently credible to be accepted beyond reasonable doubt:

   1. (1)

      despite the complainant’s evidence that the applicant had forced her to have sex throughout the marriage, she had not told SN, with whom she was close, about this although she had complained to SN about the applicant for many years prior to the offending conduct;

   2. (2)

      the complainant did not tell SN about the alleged offending until the evening of 30 August 2022 shortly before they went to the Green Valley police station, although they had been in regular contact in the previous week since the alleged offending;

   3. (3)

      the complainant had not reported the alleged offending conduct to police at the Liverpool police station when she attended on the morning of 30 August 2022 even though, according to her signed statement, she had spoken to a female police officer when she attended there;

   4. (4)

      the complainant had actually lied about various matters (including SN’s use of the cricket bat in the altercation with the applicant on 29 August 2022 and that the applicant had not given the children any food while she was being treated at Liverpool Hospital on 29 August 2022);

   5. (5)

      the complainant had exaggerated her evidence about the applicant to secure a conviction (including that she had never had consensual sex with the applicant or that he had only ever picked up the children from school once in his life);

   6. (6)

      the complainant had maintained that the applicant forced her to have sex with him because he wanted more children, in circumstances where she had had a Mirena contraceptive device inserted as well as having a tubal ligation in November 2018, thereby rendering the risk of conception remote;

   7. (7)

      the complainant confirmed in the proceedings in the Local Court and District Court that she was not intimidated by, or scared of, the applicant and that he was “a calm, collected and non-violent person but because of the medication he gets bad mood swings”; and

   8. (8)

      the complainant had shown herself to be capable of asserting herself with respect to significant matters by not complying with the applicant’s demand that she wear a hijab immediately following their marriage but choosing to do so herself in 2015, after they had been married for about six years, by continuing to provide interpreting services for male clients notwithstanding the applicant’s prohibition and by calling police on the evening of 29 August 2022 after she returned from Liverpool Hospital.

4. [97]

   In closing address, the applicant’s trial counsel focussed on the matters referred to above to impugn the complainant’s credit with a view to raising a reasonable doubt about the applicant’s guilt.

The evidence adduced in this Court as to the advice given to the applicant by his trial counsel and solicitors and his instructions to them about giving evidence

1. [98]

   The applicant’s evidence in chief was given by affidavit sworn on 22 August 2025. He was cross-examined through an interpreter. In this Court, he paused after each question to wait for the interpreter to translate the question. The applicant answered each question in his native language and waited for the interpreter to translate his answers into English. Unlike in Hanna v R [2022] NSWCCA 7 at [67], the basis for the concerns of defence counsel about the applicant giving evidence at trial were not evident from the applicant’s evidence in this Court. However, there was no challenge to defence counsel’s concerns about, and assessment of, how the applicant would have presented as a witness at trial (addressed below). I accept that the concerns of Sarah Carr, the applicant’s trial counsel, were reasonably based.

2. [99]

   The applicant confirmed that he could understand English to a certain degree and that he had had an interpreter available to him at the trial and when conferring with his barrister and solicitor during the trial in the Court and in its precincts.

3. [100]

   In his affidavit, the applicant said that “[n]o one ever discussed with me the advantages and disadvantages of giving evidence before the trial or during the trial”. He confirmed that evidence in cross-examination. I do not accept that evidence, which was entirely at odds with the evidence of his legal advisers. It is also at odds with the gravamen of what Mr Moutasallem put to the applicant’s legal advisers in cross-examination and his submissions, which accepted that the applicant had been advised about the disadvantages of giving evidence. This matter significantly undermines the applicant’s credit. I do not accept him as a reliable witness.

4. [101]

   Ms Carr, gave evidence by affidavit and was cross-examined. She came to the bar in 2013. Her practice is 90-95% criminal. Sarah Kermode, a solicitor with Duffy Law Group, who represented the applicant up until 26 April 2024, also gave evidence by affidavit but was not required for cross-examination. Sharon Bentancor, solicitor at Duffy Law Group, gave evidence by affidavit and was cross-examined. As the Duffy Law Group file had been lost or misplaced, the file notes made by Ms Kermode and Ms Bentancor were not able to be tendered and were not available to the deponents to refresh their memories of what occurred.

5. [102]

   I accept Ms Carr’s evidence, as summarised below, including that she explained to the applicant that if he chose to give evidence he would be asked about his conduct generally by the Crown and that the ambit of the examination would not be limited by what he wanted to tell the jury. I also accept the evidence of Ms Kermode and Ms Bentancor, although their recollection was not as good as Ms Carr’s.

6. [103]

   On the basis of the affidavit and oral evidence, I find the following facts.

7. [104]

   On 26 June 2023, the applicant attended a conference at his solicitors’ offices, with Ms Carr and Ms Kermode, who both met him for the first time. This conference was scheduled to precede the Case Conference in the Local Court at which the applicant would indicate whether he wished to plead guilty or not guilty. Ms Carr had the opportunity to assess the applicant and to take instructions, in broad terms, from him. At that conference, he told her that he and the complainant had had consensual sexual intercourse on 23 August 2022 and that the complainant had only gone to police after she had been told (at Liverpool Hospital) that she might have cancer. He told Ms Carr that this news particularly distressed her as her mother died of cancer at the age of 42. Ms Carr noted in her file note that it would be necessary to have an interpreter present for “major conferences/trial”.

8. [105]

   Ms Carr’s evidence was that, in the course of this conference, she formed the preliminary view that the applicant would not make a good witness at the trial. She considered him to be unable to recount events in a chronological manner and there were difficulties in his style of conversation. She observed that he had difficulty focussing on what he had been asked and “tended to focus only on a particular area”.

9. [106]

   Ms Kermode’s recollections of the conference included that the applicant insisted that SN was the reason why the complainant had complained to the police about his conduct. She also recalled that the applicant was adamant that he would plead not guilty to the charges. Ms Kermode formed the initial view that the applicant should not give evidence at the trial “due to [the applicant’s] difficulties in giving a consistent and chronological version of the relevant events, and his fixation on [SN’s] role in him being charged.”

10. [107]

    The Case Conference took place on 29 June 2023, following which the applicant was committed for trial in the District Court to commence on 13 May 2024.

11. [108]

    Ms Carr’s initial impression of the applicant was confirmed when he attended his solicitors’ office without an appointment one day between 26 June 2023 and when the trial began. He was focussed on seeing his children and appeared to find it difficult to understand that he would need to apply to the Family Court to obtain access to his children, having regard to the AVO which was in place, and that he would need a separate grant of Legal Aid for that purpose. Ms Carr’s recollection of this second conference accorded with the applicant’s recollection that he had seen Ms Carr twice in person before his trial. The applicant recalled the second conference as being in about November 2023.

12. [109]

    On 13 March 2024, the Crown served a tendency notice pursuant to s 97 of the Evidence Act 1995 (NSW), which alleged the following tendencies:

13. [110]

    The material attached to the notice included a COPS entry dated 28 February 2012 which said:

14. [111]

    This material was not ultimately tendered in the trial, although it fell within the category of material which Ms Carr was concerned would be tendered or would become admissible if the applicant chose to give evidence (see below).

15. [112]

    When reading this material, Ms Carr became concerned that these allegations concerned events more than 10 years before the alleged offending but “strongly aligned with [it].”

16. [113]

    Ms Kermode’s involvement in the matter ceased on about 26 April 2024. She was replaced by Ms Bentancor at about that time. Ms Bentancor was the solicitor on the matter at least up until the end of the trial.

17. [114]

    Ms Carr did not recall speaking to the applicant again at any length until 13 May 2024, which was the day on which his trial was set down to commence. However, the trial did not commence until the following day as the question of admissibility of evidence for a tendency purpose was dealt with on 13 May 2024. As the applicant was on bail, Ms Carr and Ms Bentancor conferred further with the applicant on 13 May 2024 and before court began and ended on each day of the trial as well as during adjournments. Ms Carr observed that, during such conferences, although there was an interpreter present, the applicant usually answered her questions before they had been interpreted. According to Ms Carr, the applicant did not use the interpreter “for any substantive topic or conversation”. She also found that “he often used idiosyncratic words or phrasing which can make it more onerous to comprehend what he is saying”. She considered that this tendency “could lead to his evidence being conflicting or contradictory between different answers”.

18. [115]

    Ms Carr’s evidence was that the first time she raised the issue with the applicant about whether he would give evidence was in her conference with him on 13 May 2024, the first scheduled day of the trial.

19. [116]

    Ms Bentancor recalled at least two occasions on which the applicant told her and Ms Carr that he wanted to “tell his story”. He also told them that he wanted to be heard. Ms Bentancor understood from these statements that the applicant wanted to give evidence in his trial. Ms Carr’s evidence was that the applicant often told her that he wanted information to be put before the jury but without indicating that he would be the one to do that.

20. [117]

    In the course of the brief defence opening at the conclusion of the Crown opening (and before the first prosecution witness had been called), Ms Carr did not indicate to the jury whether the applicant would give evidence. She explained her view at that time:

21. [118]

    Ms Carr’s cross-examination of the complainant began on 15 May 2024. Her recollection was that partway through her cross-examination and possibly before Court resumed on 16 May 2024, the applicant gave her a typed document in which he set out his version of what had occurred during the course of the marriage. She used this document as the basis of a considerable amount of her subsequent cross-examination of the complainant, although there were some matters which she chose not to put to the complainant as she adjudged it not to be in the applicant’s interests for her to do so.

22. [119]

    Before the trial judge adjourned the Court on 15 May 2024, there was discussion about how long the trial would last. The trial judge estimated that the Crown case would be completed by the end of the week. The applicant’s trial counsel said:

23. [120]

    Ms Carr explained in her affidavit that she expressed herself in this way as she was still allowing for the possibility that the applicant would decide that he did wish to give evidence.

24. [121]

    Ms Carr also gave evidence as to the involvement of persons associated with the applicant in the course of the trial. She said:

25. [122]

    Ms Carr’s cross-examination of the complainant was completed on 16 May 2024 following which the Crown called its four remaining witnesses: Senior Constable Forrell, Senior Constable Jones, SN and Senior Constable Mustafic. Senior Constable Mustafic was still in examination in chief when the jury was sent out that afternoon.

26. [123]

    In the absence of the jury and before the trial judge adjourned the Court at the end of 16 May 2024, the following exchange occurred between the trial judge and the applicant’s trial counsel about whether there would be a defence case:

27. [124]

    Ms Carr added the following before the Court adjourned that afternoon:

28. [125]

    Before the adjournment on the afternoon of 16 May 2024, the trial judge flagged to the jury and counsel that he would be delivering judgment in an unrelated matter at 10am on 17 May 2024. For this reason, the Court did not resume the hearing of the matter until well after 10.30am on 17 May 2024. This enabled Ms Carr and Ms Bentancor to confer with the applicant and obtain instructions from him as to whether he would give evidence at his trial. Ms Carr’s evidence was:

29. [126]

    Ms Carr explained her thought processes in advising the applicant not to give evidence:

30. [127]

    The material of concern (which was not tendered in the Crown case but which might have been tendered if the applicant gave evidence) included material such as the COPS entry for 28 February 2012 (extracted above), in respect of which Ms Carr gave the following evidence:

31. [128]

    Ms Carr was also concerned about the applicant being cross-examined about the circumstances in which the complainant’s tubal ligation occurred as well as his only wanting sons.

32. [129]

    Another factor in Ms Carr’s decision to recommend that the applicant not give evidence was that she considered that she had obtained “good results” from her cross-examination of the complainant. These included the matters listed above, including particularly, the complainant’s lies about SN’s use of the cricket bat to damage the applicant’s car, as well as the complainant’s tendency to exaggerate and demonise the applicant (that the applicant had never done anything nice and had never made dinner for the children or that they had never had consensual sexual intercourse). Ms Carr’s view, following her cross-examination of the complainant, was that “there was a genuine prospect of [the applicant] being acquitted”.

33. [130]

    Ms Bentancor’s evidence was that on the morning of 17 May 2024 before the trial resumed, Ms Carr discussed the advantages and disadvantages of the applicant giving evidence and recommended that he not give evidence. In the course of this conference, Ms Carr went through the tender bundle which had accompanied the Crown’s tendency notice, “particularly old police briefs” and told the applicant that it would not be good for the jury to see those documents. Ms Carr told the applicant that it was “effectively the last time” to decide.

34. [131]

    The applicant also raised the issue of whether another person ought be called in his case, being one of the invitees to lunch on 23 August 2022 but Ms Carr advised him that it was not “a good look” not to call the applicant but to call another witness. Ms Carr told him that unless he gave evidence she would only be able to rely on the answers given by the complainant (in which she had extracted concessions to assist the applicant’s case).

35. [132]

    Ms Carr agreed that she did not tell the applicant that there was a significant risk in his not giving evidence and explained that she did not consider it to be a significant risk, particularly when contrasted with what she adjudged to be the significant risks of his giving evidence. She said that she “saw no advantage of putting him in the witness box” and accepted that because she saw no advantage, she probably did not tell him that there was any advantage in his giving evidence. Ms Carr’s evidence was that, although she strongly recommended that the applicant not give evidence and advised him of the disadvantages of giving evidence (that he would be cross-examined about a range of topics about which his evidence was unlikely to assist him), she also told him that he had a right to give evidence.

36. [133]

    After this discussion, the applicant then spoke to his “peers”, being the group of support people who attended his trial. After consulting with his peers, he instructed Ms Carr that he would not give evidence in the trial. No evidence was called by the applicant in this Court from any of the people he consulted from his peer group before making his decision not to give evidence.

37. [134]

    Ms Carr recalled that she insisted that the applicant instruct her through the interpreter as to whether he wanted to give evidence or not.

38. [135]

    Shortly after the Court resumed on 17 May 2024, the applicant’s trial counsel said, as recorded on the transcript:

39. [136]

    The matters set out above are largely uncontroversial. The substantial issues between the parties is what advice was given to the applicant about whether or not to give evidence and whether the advice to him not to give evidence was sound.

40. [137]

    Ultimately, Mr Moutasallem accepted that the applicant’s lawyers had discussed with him the disadvantages of giving evidence, at least before Ms Carr indicated to the trial judge that he would not give evidence. However, Mr Moutasallem contended that the applicant’s lawyers had failed to advise the applicant of the advantages of giving evidence and the risks of not giving evidence. He identified these as including the following propositions:

    1. (1)

       where an accused has not participated in a recorded interview, denying the allegations, it is all the more important that the accused give evidence denying the offence;

    2. (2)

       juries like to hear sworn denials of sexual assault allegations;

    3. (3)

       if no evidence is given by an accused, there is no defence case and therefore nothing to counterbalance the prosecution case; and

    4. (4)

       the changes to Part 5 of the Criminal Procedure Act relating to the directions which may be given regarding the jury’s assessment of a complainant’s evidence (including those concerning delay, inconsistencies and the lack of “typical or normal response” to non-consensual sexual intercourse) have the effect of elevating the need for an accused to give evidence.

41. [138]

    Mr Moutasallem submitted that the applicant’s lawyers failed to give him adequate advice because there was a balancing exercise to be carried out and they did not highlight the advantages of giving evidence, including that his giving evidence would have amounted to a “defence case”.

Consideration

1. [139]

   The applicant bears the onus of establishing facts from which it ought be concluded that a miscarriage of justice resulted from his trial: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 (TKWJ) at [63] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) and Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13 (Craig) at [32] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

2. [140]

   Ultimately, Mr Moutasallem submitted that the applicant should have been advised that, given the four propositions identified above in [137] and despite the fact that he would be subjected to rigorous cross-examination which may render admissible damaging evidence about him, there were advantages in his giving evidence. For the reasons given further below, I do not accept this submission.

3. [141]

   However, before addressing this submission, it is necessary to consider the preliminary question: whether the applicant has established that, if he had been given the advice for which Mr Moutasallem contended, he would have chosen to give evidence in his trial. The applicant did not give evidence to that effect. When this deficiency was pointed out to Mr Moutasallem, he submitted that evidence to that effect would have had limited weight as being self-serving and affected by hindsight. He submitted that this Court ought infer from the evidence of the applicant’s statements to his legal advisers that he wanted to be heard by the jury that he would, had he been given such advice, have chosen to give evidence, had he been “correctly” advised.

4. [142]

   I do not accept this submission. There is a significant difference between, on the one hand, the applicant telling his legal advisers that he wanted to be heard by the jury and, on the other, the decision to step from the dock to the witness box and expose himself to cross-examination about his behaviour during the course of his marriage to the complainant which had a significant potential to harm his defence of the charges. Without express evidence that he would have made that choice (about which he could have been cross-examined in this Court), I find it difficult to accept, on the balance of probabilities, that he would have done so. The applicant has not discharged the onus which he bears. The evidence does not establish that the trial would have been conducted differently if the putative advice had been given. The applicant’s appeal must, accordingly, fail for this fundamental deficiency: see Craig at [37].

5. [143]

   This deficiency is sufficient to dispose of the appeal. However, in deference to the detailed submissions of counsel, I propose to address the further questions raised by them.

6. [144]

   Generalisations about whether to advise an accused to give evidence are rarely instructive since this forensic evaluation depends on facts and circumstances which are germane to the particular case. These matters may include the following:

   1. (1)

      whether the complainant’s evidence has been impugned in cross-examination to the extent that it may not be accepted beyond reasonable doubt (which would result in an acquittal);

   2. (2)

      how the accused is likely to present in the witness box (including whether the accused tends to answer questions directly or indirectly; whether the accused tends to justify actions which may be regarded as reprehensible by a jury; whether the accused’s demeanour is autocratic and entitled, which may make it more likely that he would have sex with the complainant even if she did not consent);

   3. (3)

      whether there is a real risk that damaging material which has not been tendered in the prosecution case will become admissible and be tendered in the course of the cross-examination of an accused;

   4. (4)

      whether the accused’s evidence is likely to support the complainant’s evidence about peripheral matters and thereby make it more likely that the jury will accept, to the requisite standard, the complainant’s evidence about the matter in dispute (in this case, whether the complainant consented to the sexual intercourse);

   5. (5)

      whether it is arguable that any verdict of guilty on the basis of the evidence in the prosecution case would be unreasonable, with the consequence that the verdict could be challenged on appeal on that basis;

   6. (6)

      whether, if the accused gives evidence, the prospect of a verdict of guilty being found to be unreasonable is likely to be foreclosed; and

   7. (7)

      whether the Crown case is so strong that the applicant has, in effect, nothing to lose by giving evidence.

7. [145]

   The four propositions for which Mr Moutasallem contended (set out in [137] above) are, at least, debatable. The “defence case”, in its broad sense, can, and frequently is, presented through a defence opening pursuant to s 159(1) of the Criminal Procedure Act and cross-examination of prosecution witnesses. The right to silence is a significant right and is the subject of important directions to the jury, including that no inference can be drawn against an accused by reason of the accused exercising that right by not answering questions when arrested or in not giving evidence at the trial. The Court is entitled to assume that the jury complied with these directions: Demirok v The Queen (1977) 137 CLR 20 at 22 (Barwick CJ); [1977] HCA 21 and Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13] (Gleeson CJ and Gummow J); [31]-[38] (McHugh J).

8. [146]

   In the present case, the “benefit” of the applicant giving evidence that the complainant consented to sexual intercourse was that it would have been necessary for the trial judge to give the so-called Liberato direction (after Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66) in accordance with De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [12] as follows:

9. [147]

   It is plain that Ms Carr’s assessment of the applicant was that there was no realistic chance that, as to the issue of whether the complainant consented to sexual intercourse and sexual touching on 23 August 2022, he would either be believed or that the jury would consider that what he said might be true. In these circumstances, as far as Ms Carr adjudged it, there was no actual benefit to be obtained from his giving evidence since the jury would simply put the applicant’s evidence to one side. The dangers of the applicant giving evidence were obvious: the jury might, after hearing the cross-examination of the applicant, be convinced beyond reasonable doubt of his guilt, even if they had not been persuaded to that standard at the close of the prosecution case.

10. [148]

    Mr Moutasallem relied on R v ND [2004] 2 Qd R 307; [2003] QCA 505, in which ND successfully appealed against his convictions of rape and incest against S, the daughter of ND’s de facto wife. In his trial, ND accepted the advice of his trial counsel not to give or call evidence which was alleged to be erroneous in the following three respects:

    1. (1)

       advice that, if ND gave evidence, he would be cross-examined to his detriment about his physical mistreatment or neglect of S (about which S had not been cross-examined);

    2. (2)

       ND was not advised of the importance of making a sworn denial before the jury; and

    3. (3)

       ND was not advised of any possible relevance of his not giving evidence at trial to the outcome of an appeal against conviction.

11. [149]

    The Queensland Court of Appeal held that the advice that ND would be cross-examined about his physical mistreatment or neglect of S was incorrect (since such questions would have been objectionable) and that it was erroneous for his advisers not to tell ND about the importance of a sworn denial. Holmes J (McPherson JA agreeing, McMurdo JA dissenting on this ground) said at [30]:

12. [150]

    Holmes J referred to the relevant principles as follows:

13. [151]

    Mr Moutasallem accepted that the Queensland Court of Appeal in R v NE [2004] 2 Qd R 328; [2003] QCA 574 (McMurdo P, Davies JA and Chesterman J) dismissed an appeal on the same grounds as were allowed in R v ND. In R v NE, the appellant had conceded that he was advised of the advantages and disadvantages of giving evidence and that his decision not to give evidence was based on sound legal advice. In R v NE Davies JA explained the result in R v ND as follows:

14. [152]

    The leading case on the applicable principles where an appeal relies on alleged incompetence of counsel when advising an accused whether to give evidence is Craig. In Craig, C was charged with murder of his de facto partner by stabbing. C had a criminal history which included convictions for offences in the Northern Territory, in the course of which the victim was fatally stabbed. C was incorrectly advised by his counsel that, if he gave evidence, he would be questioned about his criminal history. C did not give evidence and was convicted of murder. The High Court observed that the Queensland Court of Appeal did not find, and C did not say, that, absent the incorrect advice, he would have given evidence. It dismissed C’s appeal against conviction.

15. [153]

    The following principles, as articulated in Craig, are fundamental:

    1. (1)

       a fair trial requires that the accused be aware of the right to give evidence in his or her defence, even if that choice may be unwise: Craig at [33]; and

    2. (2)

       the decision whether the accused will give evidence at the trial is for the accused and not for defence counsel: Craig at [26].

16. [154]

    Even if the accused is aware of these two matters, there may be circumstances in which a court finds that a miscarriage of justice has been occasioned. There may be circumstances in which the accused’s decision not to give evidence was made on the basis of incorrect legal advice and, but for that advice, the accused would have chosen to give evidence. The Court “looks to the nature and effect of the incorrect legal advice on the accused’s decision”: Craig at [27].

17. [155]

    Where the alleged incompetence relates to a forensic decision which is for counsel to make, the appellate court makes an assessment of whether an objectively rational justification for the decision can be discerned: Craig at [23] (citing TKWJ at [8]) and [33]. Craig, at [34], established that, by contrast, where the allegation is that the accused was incorrectly advised about whether to give evidence, the appellate court must be satisfied that:

    1. (1)

       it was the accused’s wish to give evidence; and

    2. (2)

       the incorrect legal advice effectively deprived the accused of the opportunity to do so (because the accused would have given evidence absent the error in the legal advice).

18. [156]

    In this context, the High Court in Craig observed, at [27], that:

19. [157]

    To the extent to which R v ND considered that Sankar v State of Trinidad and Tobago [1995] 1 WLR 194 (Sankar) stands for the wide proposition rejected by the High Court in this passage, it is no longer good law. In Sankar, the appellant had not been advised of his options about giving evidence and his instructions were not sought. In these circumstances, there was, as the High Court observed in Craig at [26], a miscarriage of justice.

20. [158]

    In R v Szabo [2001] 2 Qd R 214; [2000] QCA 194 (Szabo), Thomas JA (cited with approval by this Court in White v R [2018] NSWCCA 1 at [69] (Davies J, Hoeben CJ at CL and Bellew J agreeing)) said:

21. [159]

    The above extract encapsulates the importance of an appellate court not requiring defence counsel to give advice to an accused in “bamboozling” detail or to attempt to give an accused a crash-course in criminal evidence and procedure. It is the accused who must decide whether to give evidence and, as Thomas JA said at [41], it is the accused who must live with the consequences. Wondering about the counterfactual is rarely productive. This Court must be astute to prevent miscarriages of justice which may arise when an accused truly does not appreciate that he or she must make the choice whether to give evidence or is advised on a fundamentally flawed basis (as opposed to a basis in respect of which some error can be identified, such as in Craig). However, armchair appeals such as the present are not to be encouraged.

22. [160]

    In the present case, I am satisfied, on the basis of the evidence given by Ms Carr and Ms Bentancor that there was adequate discussion and opportunity for the applicant to make his decision whether to give evidence. Further, based on my own analysis of the evidence, summarised above, I am not persuaded that it could be said that, unless the applicant gave evidence he was bound to be convicted. There was, as Ms Carr said in her evidence, a reasonable prospect that the applicant would be acquitted since the jury may not have accepted the complainant’s evidence as to her lack of consent beyond reasonable doubt, given the matters raised in cross-examination about her credibility. In addition, there were substantial difficulties with the applicant giving evidence, including those identified by Ms Carr, and having regard to the COPS reports that established by incontrovertible evidence that the complainant had made complaints to police since at least 2012 about the applicant insisting on sexual intercourse with her despite her lack of consent.

23. [161]

    As Thomas JA said, in effect, in Szabo, it was not necessary for Ms Carr to explain to the applicant all the pros and cons which were in her mind when advising him not to give evidence. Nor was it necessary for her to inform him of a potential “advantage”, such as the right to a Liberato direction, which she reasonably believed would be of negligible value because the prospects of the jury considering, on the basis of his evidence, that it was possible that the complainant consented to the sexual touching and intercourse were, effectively, nil. This Court ought not encourage defence lawyers to give so much detail when advising accused clients as to whether to give evidence that they “bamboozl[e]” them.

24. [162]

    Ms Carr’s advice that the applicant should not give evidence was reasonable. It could not be described as incompetent, much less flagrantly so. The applicant had little, if anything, to gain by giving evidence and much to lose. The applicant was not deprived of the opportunity of deciding, ultimately, whether to give evidence, and whether to accept or reject the advice of his legal advisers. Indeed, I accept Ms Carr’s evidence that the applicant’s prospects of acquittal would have been significantly reduced had he given evidence. Unlike in Craig, where C’s appeal was dismissed, the present applicant was not incorrectly advised. At its highest for the applicant, there was an immaterial omission from the advice in that the theoretical (but, in the context of the case, worthless) advantage of giving evidence was not spelled out.

25. [163]

    The applicant has not established that he was not adequately or properly advised as to whether he should give evidence on oath at trial (particular a.). The decision not to give evidence was his decision, following the reasonable recommendation by his trial counsel (particular b.). This decision did not deprive him of a chance of acquittal which was fairly open (particular d.). Accordingly, the ground has not been made out, even aside from the fundamental deficiency in the applicant’s evidence that he did not establish that the trial would have been conducted differently had he been given advice as to the advantages (such as they were) of giving evidence. The sole ground of appeal has not been made out.

Further matters

1. [164]

   Mr Moutasallem made submissions about what he said constituted “best practice”, including whether and when defence counsel should obtain a proof of evidence from an accused. It is not necessary to address these submissions as they do not arise.

2. [165]

   Further, Mr Moutasallem submitted that it was desirable for the question whether an accused should be advised to give evidence to be addressed at various points in time, including pre-trial. While the general proposition – that it is for the accused to decide whether to give evidence – ought be raised, as it was in the present case, at an early stage, it is not desirable that an accused be obliged to follow, on a day by day, witness by witness basis, the myriad of forensic considerations which contribute to a legal adviser’s assessment of whether to recommend that an accused gives evidence or not. The time at which the accused is obliged to make that decision is at the close of the prosecution case. It is a question for judgment when the matter is first addressed with an accused and at what points it is revisited. Trials are dynamic and the inroads made into the evidence of prosecution witnesses can usually only be assessed when the witness has completed his or her evidence. Similarly, an assessment of the strength of the prosecution case may only be made when most, if not all, evidence has been called by the Crown. I discern no basis for criticism of the applicant’s trial lawyers in the timing of their advice as to whether he should give evidence.

3. [166]

   I note that the applicant was not required by his legal advisers to give written instructions confirming his decision not to give evidence. It is desirable that such instructions be obtained in that form when important decisions are made by an accused, such as the decision whether to give, or not to give, evidence or the decision to plead guilty. The requirement to sign written instructions (with the assistance of an interpreter in an appropriate case, such as the present) serves not only to record the instructions but also to bring home to the accused the importance and finality of the decision, which is ultimately one for the accused. For a textbook example of note-taking regarding instructions to enter a plea of guilty see Van Zwam v R [2017] NSWCCA 127 at [19]-[26].

Proposed orders

1. [167]

   For the reasons given above, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [168]

   McNAUGHTON J: I have had the advantage of reading the draft judgment of Adamson JA. For the reasons set out by her Honour I agree with the orders proposed.

3. [169]

   MUSTON J: I too have had the advantage of reading the draft judgment of Adamson JA. I agree, for the reasons given by her Honour, that leave to appeal ought be granted and the appeal dismissed.