Hofer v R

1. [1]

   MACFARLAN JA: On 19 April 2016 the applicant was arraigned on 11 counts of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). He pleaded not guilty to each count and his trial proceeded until 10 May 2016 when he was found guilty on Counts 2, 3, 4, 5, 6, 7, 9 and 11 and not guilty on Counts 1 and 8. The trial judge had earlier directed the jury to enter a verdict of not guilty on Count 10.

2. [2]

   Counts 1 to 8 concerned eight different acts of sexual intercourse that were alleged to have been engaged in by the applicant with the complainant C1 on the evening of 29 October 2014 or in the early hours of 30 October 2014. Counts 9, 10 and 11 concerned three different acts of sexual intercourse that were alleged to have been engaged in by the applicant with the complainant C2 on the evening of 30 October 2014.

3. [3]

   On 23 September 2016 the applicant was sentenced to an overall period of imprisonment of 9 years 9 months, with a non-parole period of 6 years 6 months to date from 31 October 2014. The applicant is thus eligible for parole on 30 April 2021.

4. [4]

   The applicant appeals, and to the extent necessary seeks leave to appeal, against his sentence on the following grounds:

5. [5]

   Ground 1 concerns the applicant’s fitness to be tried at the time of his trial. As that issue has been raised for the first time on appeal, the manner in which he gave evidence and instructed his legal representatives at the trial is of importance to its determination. In those circumstances, it is appropriate to defer dealing with it until after the evidence at the trial has been described and Ground 2 has been addressed.

The first complainant’s evidence (C1)

1. [6]

   C1 gave evidence that she was 23 years of age at the time of the alleged offences, was an American citizen and had recently arrived in Australia for a working holiday. She had booked accommodation at a hostel for one week but wished to find cheaper accommodation. As a result, she responded to an online advertisement that was placed by the applicant seeking someone, preferably a female aged 21 to 35, to share his one bedroom apartment. After exchanging messages, the applicant picked C1 up from her hostel in a taxi. They went to a bar where they consumed alcoholic drinks. The applicant encouraged her to drink more than she would have wished. They then went to another bar (the Little Guy Bar) where the applicant encouraged C1 to drink more, to the point where C1 described herself as “feeling quite intoxicated”. C1 said she “was feeling uncomfortable with [the applicant] because he would do things like touch [her] arm or [her] knee” and she “just had a weird feeling about him”. She sent a text message to a friend at the hostel saying “I feel weird with this guy, I want to come back to the hostel”. Nevertheless after being at the bar for approximately an hour they walked to the applicant’s apartment so that she could see what had been advertised.

2. [7]

   At the apartment, C1 told the applicant that she did not want to have sex and repeated that later. C1 then gave detailed evidence of the various acts of sexual intercourse charged in Counts 1 to 8 that occurred. Counts 1 and 8 on which the jury returned not guilty verdicts related, on C1’s evidence, to the applicant putting his finger in her anus and an act of penile/vaginal intercourse respectively. C1 said she was “quite intoxicated” at the time that the latter act occurred and was “in and out of consciousness”.

3. [8]

   When C1 realised that the applicant had not used a condom a discussion occurred between them as to the applicant having had chlamydia in the past. C1 then immediately dressed and left the apartment, with the applicant following and hailing her a taxi.

4. [9]

   In the taxi she said that she was crying a lot and that she told the driver that the applicant had made her have sex with him. On her return to the hostel, she told the hostel manager that she had been raped. The next morning C1 told two police officers who came to the hostel that she had been raped. They advised her to go to the local hospital and to make a formal complaint, which she did.

5. [10]

   The applicant’s counsel cross-examined C1 vigorously and at length, principally to the effect that by her conduct C1 encouraged the applicant to believe that she would and did consent to the sexual activity.

Other Crown witnesses concerning C1

1. [11]

   A barman working on the night of 29 October 2014 at the second bar to which C1 and the applicant went gave evidence that the applicant had tried to kiss C1 and she had said “not here, or no or reacted in a negative manner … ”.

2. [12]

   The taxi driver who picked up C1 at the end of the evening gave evidence that when he approached in his taxi a male (the applicant) was grabbing C1’s wrist and she was trying to get away. He said that when in the taxi C1 said that the man had taken advantage of her and that “he wanted to do something like adult thing” [sic]. The taxi driver also gave evidence that C1 was “upset and crying”. He asked, “[w]hy are you upset?” C1 responded that the “man was not nice and [was] offering me cheap accommodation”.

3. [13]

   The hostel manager gave evidence that when C1 returned to the hostel she was upset, started crying, fell to her knees on the staircase, and said “I think I just got raped”.

4. [14]

   A senior constable who happened to be at the hostel on the morning of 30 October 2014 gave evidence that the hostel manager said to him that a girl, C1, was “crying and very distressed” and “said she was raped and collapsed”. The constable asked the manager if she could go upstairs and ask the girl to come down as he wanted to speak to her about what had occurred. C1 described to the constable her visit with the applicant to his apartment and that he had said “let’s have sex”, to which she said “no”. She told the constable that “[t]his guy forced me”.

The second complainant’s evidence

1. [15]

   C2 gave evidence that in October 2014 she was 17 years of age, had recently moved from Queensland to Sydney and had stayed with friends and at a refuge. She responded to the same online advertisement as that to which C1 responded. The applicant informed C2 that the apartment was vacant and that he wanted to meet C2 for dinner and then show her the apartment.

2. [16]

   C2 said the following exchange occurred over dinner:

3. [17]

   After dinner they went to a hotel and started drinking. When the applicant asked about her relationships, she again told him she was a lesbian to indicate that she was not interested in him sexually. The applicant asked to see a photo of her partner and C2 showed him a photo of her and her best friend.

4. [18]

   After C2 consumed around three schooner glasses of cider she felt “pretty tipsy”. She and the applicant then went to the Little Guy Bar, where the applicant had taken C1 the previous night. The applicant encouraged her to drink more and whilst they were dancing C2 said that “he just grabbed my body really tight and he pushed his penis into my backside and it was really like forceful and I just kind of froze”. When C2 went outside for a cigarette she said that she was so drunk that she could not hold the cigarette in her lips.

5. [19]

   They then walked to the applicant’s apartment. C2 said that she was unable to walk properly because she was so intoxicated and that she had never been that drunk before.

6. [20]

   In the apartment C2 told the applicant that she did not want to have sex with him but he proceeded to do so. C2 then gave evidence of the penile/vaginal acts the subject of Counts 9 and 11. At one point she sent a friend an SMS saying “help me” and then either made or received a phone call from the friend. When the applicant complained about her talking on the phone she got dressed and started walking out of the house. The applicant walked with her to the bus stop and when the bus came, according to C2:

7. [21]

   C2 got off the bus at Town Hall and immediately “fell to the floor”. She started to scream and was approached by a man. C2 handed the man her phone, which was still connected to her friend.

8. [22]

   After her friend arrived to find her on the ground, he ran to the police station and came back with a police woman. C2 told the police woman that the applicant had raped her.

9. [23]

   C2 was then cross-examined at length by the applicant’s counsel. The cross-examination was principally to the effect that C2’s conduct was such that the applicant could reasonably have understood that C2 would and did consent to the sexual activity that occurred.

10. [24]

    As C2 did not give evidence of the act charged in Count 10 in the Indictment, the trial judge directed the jury to return a verdict of acquittal on that charge.

Other Crown witnesses concerning C2

1. [25]

   Mr McBride, a barman at the Little Guy Bar, gave evidence of the applicant and C2’s presence at the bar on the night of 30 October 2014. He said that “[i]t seemed like [the applicant] wanted to talk to [C2] himself and he didn’t really want her talking to other people … ”. In cross-examination he agreed that C2 seemed very excited to be at the bar and that neither she nor the applicant appeared drunk.

2. [26]

   A female to whom C2 had spoken at the Little Guy Bar and who was referred to in the evidence as the Irish girl gave evidence that C2 was intoxicated and that the applicant was very possessive of her. She stated that C2 had told her that she was a lesbian and that she “heard her exclaiming that point again to other people in the bar later”. She gave evidence that upon C2 and a male (the applicant) leaving the bar, C2 grabbed her hand. The applicant however put his hand around C2’s waist, pulled C2 towards him and with his other hand prised her fingers off C2’s hand.

3. [27]

   A female friend of C2 gave evidence of a complaint by C2 to her on the evening of 30 October 2014, as did a male friend of C2. This friend spoke to C2 on the phone when she was on the bus after leaving the applicant. He said that he later found C2 on the footpath crying, screaming and yelling “get him off me” and that she said “he raped me”. Another man, who was with him that evening, also gave complaint evidence.

4. [28]

   As well, two police officers gave evidence of the complaints by C2 to them of sexual assault of her by the applicant. These complaints were made late on 30 October or early on 31 October 2014.

Crown evidence relevant to both complainants

1. [29]

   The investigating police officer gave evidence of the arrest of the applicant and that he asserted that his interactions with the complainants were consensual. He also gave evidence of obtaining CCTV footage from the two bars and the hotel to which the applicant had taken C1 or C2, and of obtaining mobile telephone records and records of Facebook communications.

2. [30]

   The Crown also called evidence of medical examinations of C1 and C2, DNA evidence obtained from C1 and C2 and pharmacological evidence.

The case for the applicant – the applicant’s evidence

1. [31]

   The applicant gave evidence that in October 2014 he occupied a single room at premises in Glebe and that he had advertised online for a person to share it with him. He gave detailed evidence of his interactions with the complainants, both at the bars, hotel and at his apartment. The effect of his evidence was that considerable sexual activity had occurred with the complainants, largely as alleged, but that they consented to all of it.

2. [32]

   The Crown Prosecutor’s cross-examination of the applicant included the following exchanges which are the subject of Ground 2 of appeal:

3. [33]

   After the weekend adjournment, the applicant’s cross-examination on Monday 3 May 2016 included the following:

DETERMINATION OF APPEAL GROUND 2 – WHETHER IMPERMISSIBLE CROSS-EXAMINATION OF THE APPLICANT

1. [34]

   The gravamen of the applicant’s complaint in relation to this ground of appeal is that in his cross-examination of the applicant the Crown Prosecutor impermissibly suggested, expressly and impliedly, that the applicant was lying in his evidence about eight identified matters because his counsel had not put those matters to the relevant complainant (or in relation to the eighth matter, to the police) in cross-examination. The relevant evidence given by the applicant was to the following effect:

   1. (1)

      C1 had an orgasm during oral sex performed by the applicant on her (T489-90).

   2. (2)

      C2 told him that she was bisexual and did not tell him that she was a lesbian (T498-9, 502-3).

   3. (3)

      C2 had used her tongue when she and the applicant kissed (T499, 504-5).

   4. (4)

      C2 performed oral sex on the applicant (T518).

   5. (5)

      The applicant asked C2 if he could ejaculate inside of her (T519).

   6. (6)

      The applicant and C2 both had an orgasm during sexual intercourse (T519).

   7. (7)

      Whilst the applicant was having sexual intercourse with C2, she was on the phone to her “unofficial boyfriend” (T523-4).

   8. (8)

      The complainants had been coached by police (T520-1).

2. [35]

   It was correct that none of the eight matters were put to C1 or C2 (or in the case of the eighth, to police) save for the fourth matter which the prosecutor realised during his cross-examination of the applicant was in fact put to C2 (and he apologised to the jury for suggesting otherwise) and the seventh matter which arose out of a misunderstanding by the prosecutor of the evidence. C2 gave evidence of the seventh matter which substantially reflected that later given by the applicant. Of the eight matters the first, fourth, fifth and sixth were referred to by the applicant in his evidence-in-chief. He referred to the other matters only in cross-examination.

3. [36]

   The absence of questions to the Crown’s witnesses on these topics was referred to in the Crown’s closing address only in a limited fashion as follows:

4. [37]

   Nevertheless, the applicant contends that the Crown’s questions to the applicant were impermissible and, at least in the absence of any attempt by the applicant’s counsel or the trial judge to lessen their impact, were both material and highly prejudicial to the applicant.

5. [38]

   The applicant’s contentions derive support from the following authorities.

6. [39]

   In R v Dennis [1999] NSWCCA 23, the Crown challenged evidence given by the accused by drawing the accused’s attention in cross-examination to the fact that his counsel had not put the proposition the subject of the evidence in cross-examination to the relevant crown witness. In closing, the Crown put to the jury that this indicated that “the accused was changing his version, even as he was giving evidence in the witness box it seems” (at [29]). McInerney J, with whom Spigelman CJ and Wood CJ at CL agreed, described the cross-examination as “very prejudicial” to the accused and the Crown’s address on this issue as “very highly prejudicial” (at [28] and [33]). In agreeing with McInerney J that the appellant’s conviction should accordingly be quashed, Spigelman CJ said at [46] that the “degree of prominence given to this issue is such as to undermine the requirements of a fair trial”.

7. [40]

   In R v Abdallah [2001] NSWCCA 506; 127 A Crim R 46, there was a difference between the accused’s counsel’s opening statement to the jury and the accused’s later evidence. Sheller JA (with whom Dowd and Kirby JJ agreed) pointed out at [24] that in that situation and also where the accused’s counsel has failed to cross-examine the complainant on aspects of the defence case:

8. [41]

   In Picker v The Queen [2002] NSWCCA 78, Smart AJ (with whom Beazley JA and Bell J agreed) at [41] described cross-examination similar to that undertaken in the present case, in which the accused was asked whether he had heard various propositions that he stated in evidence put to the complainant in cross-examination, as “impermissible and highly and unfairly prejudicial to the appellant’s case”. It was suggested by the Crown Prosecutor in that case that because the propositions had not been put to the complainant, the accused was making up his evidence. Whilst in his closing address the Crown Prosecutor asserted that the accused had fabricated his evidence, he did not expressly link that to the failure to put certain matters to the complainant in cross-examination.

9. [42]

   Smart AJ concluded:

10. [43]

    In R v Orchard [2013] NSWCCA 342, where aspects of the accused’s evidence had not been put to the relevant prosecution witness, the Court made the following observations:

11. [44]

    As made clear in these authorities, it is at least ordinarily impermissible to attack an accused’s evidence on the basis of a failure of his or her counsel to have put matters of which the accused gives evidence to the Crown witnesses in the course of their cross-examination. This is because there may be many reasons why counsel did not take that course. The absence of it being taken accordingly provides no sound basis for an inference that the accused is not telling the truth about those matters.

12. [45]

    One reason why a reasonable counsel acting for the applicant in the present case might have considered that it would not advance his client’s interests to put some of the eight subject matters to C1 or C2, as appropriate, is that in large measure the applicant did not dispute that the sexual activity described by C1 and C2 occurred. Rather, his case was, contrary to C1 and C2’s evidence, that the activity was consensual. In these circumstances, counsel might reasonably have thought it unnecessary, and perhaps counterproductive, to descend in cross-examination of C1 and C2 to details of the sexual activity. For example, counsel may have thought that the applicant’s case would not be advanced by putting to C1 that she had an orgasm during sexual intercourse with the applicant as, although an acceptance of that may have assisted that case, the proposition would more likely have been rejected. Different explanations, such as counsel’s oversight, might apply in relation to the remaining matters.

13. [46]

    The Crown’s impermissible questions were not merely incidental aspects of the applicant’s cross-examination. They occupied a substantial part of it and grew more frequent as the cross-examination drew to a close. Indeed, in my view, it is fair to say that these questions constituted the principal means of attack by the Crown on the applicant’s evidence.

14. [47]

    The Crown’s cross-examination of the applicant occupied approximately 47 pages of transcript between pages numbered 471 and 525, eight pages having dealt with other matters. The Crown asked the applicant approximately 29 impermissible questions, spread throughout the cross-examination. Impermissible questions were asked on five of the last eight pages of the cross-examination. In the part of the cross-examination recorded on two of those pages almost at the end of the cross-examination (pp 520 and 524) the Crown put expressly to the applicant that the absence of his counsel making relevant suggestions to the Crown’s witnesses demonstrated that the applicant was fabricating his evidence. This was plainly the intended inference from the Crown’s other impermissible questions and was the message with which the Crown left the jury at the end of the cross-examination. That the impermissible line of questioning was, although referred to, not a feature of the Crown’s closing address did not in my view deprive it of significance as, in its address, the Crown continued to maintain that the applicant’s evidence was false. The manner in which the Crown attacked that evidence would have been fresh in the jury’s mind as the Crown’s closing address commenced immediately after its cross-examination of the applicant concluded.

15. [48]

    Whether the prejudice to the applicant caused by the Crown’s impermissible questions in cross-examination could have been cured by appropriate directions to the jury by the trial judge need not be addressed. No such directions that, for example, identified other possible reasons why suggestions reflecting the applicant’s evidence had not been made to the Crown’s witnesses were sought by the applicant’s counsel nor given by the trial judge.

16. [49]

    For these reasons, I conclude that the applicant’s interests were prejudiced to a significant extent by the Crown’s impermissible questions and by the absence of any attempt by the trial judge to attempt to cure that prejudice. There was therefore a “miscarriage of justice” within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). As indicated in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18] “any departure from trial according to law, regardless of the nature or importance of that departure” is a “miscarriage of justice” for the purpose of provisions like s 6(1) of the Criminal Appeal Act (see also King v The Queen (2012) 245 CLR 588; [2012] HCA 24 at [53]).

17. [50]

    That being the case, it is necessary to consider whether the applicant’s proposed appeal should nevertheless be dismissed in accordance with the “proviso” to s 6(1) because “no substantial miscarriage of justice has actually occurred”.

Whether the proviso is applicable

1. [51]

   Decisions in recent years in which the High Court has considered the application of the proviso include Weiss; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59; Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46; Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517; Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689; Kalbasi v Western Australia [2018] HCA 7; (2018) 92 ALJR 305 and OKS v Western Australia [2019] HCA 10; (2019) 93 ALJR 438.

2. [52]

   Principles of relevance to the application of the proviso in the present case that I derive from these authorities are as follows.

3. [53]

   First, in applying the proviso, the “fundamental question” for the appellate court is to decide whether there has been a substantial miscarriage of justice (Kalbasi at [16]).

4. [54]

   Secondly, it is a necessary but not sufficient condition for application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved the accused’s guilt beyond reasonable doubt (Weiss at [44]; Baiada at [29]; Lane at [38]). Where an appellate court is so satisfied, this “will in many instances support the conclusion that there has been no substantial miscarriage of justice” (Kalbasi at [13]; see also Weiss at [44]; Baini at [30]). In some cases, it will not. Where the appellate court is not satisfied that the accused’s guilt has been proved beyond reasonable doubt on admissible evidence there “will always be a substantial miscarriage of justice” (Kalbasi at [13]).

5. [55]

   Thirdly, for the purpose of determining whether there has been a substantial miscarriage of justice, the appellate court must undertake an independent assessment of the whole of the record of the trial (Weiss at [41] and [43]). That examination requires account to be taken of the jury’s guilty verdict (Weiss at [43]).

6. [56]

   Fourthly, there are natural limitations on the appellate court’s ability to determine whether the accused’s guilt has been proved beyond reasonable doubt, particularly in cases in which the credit of witnesses is of importance because the appellate court has not seen and heard the witnesses give their evidence (Kalbasi at [15]; OKS at [31]; Weiss at [41]). Reliance by the appellate court on the jury’s guilty verdict may enable those limitations to be overcome (Baini at [32]). Such reliance avoids the appellate court impermissibly exercising the functions of the jury (Lane at [48]; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]).

7. [57]

   Fifthly the appellate court will not be able to rely on the jury verdict where the verdict may have been affected by errors in the trial process (OKS at [29]; Kalbasi at [15]; Lane at [48]; Collins at [36]). In some cases however an error will have been of no significance in determining the verdict returned by the jury (Weiss at [43]).

8. [58]

   Sixthly, in an extreme case the appellate court may be able to rely, for the purpose of determining whether guilt has been proved beyond reasonable doubt, not on the verdict, but on its own conclusion that oral evidence contrary to the Crown’s case is obviously false (Castle at [66]).

9. [59]

   I turn then to the present case. Even if the jury here accepted the complainants’ evidence, it still had to consider whether the applicant’s evidence might “reasonably possibly” be true, that is, that the applicant had believed that C1 and C2 consented to the sexual activity (even if they did not) (Douglass at [13]). In this sense a criminal trial is thus not a “word against word” contest between the complainant and the accused (Douglass at [12]).

10. [60]

    In these circumstances it would be no answer to the applicant’s appeal to conclude that the complainants’ evidence was forceful and strongly supported by complaint evidence. Absent an impermissible usurpation of the jury’s function (or a conclusion that the applicant’s evidence was obviously false) this Court would have to rely upon the jury’s verdicts of guilty if it were to conclude that the applicant’s evidence was not reasonably possibly true, in the same way that it would have to rely on the guilty verdicts to hold that the complainants’ evidence ought to be accepted.

11. [61]

    The jury’s verdicts cannot however be relied upon in this way because they were impugned by the Crown’s impermissible cross-examination and by the absence of any attempt by the judge or the applicant’s counsel to have the prejudice to the applicant which flowed from that cross-examination rectified.

12. [62]

    For the reasons I have given earlier, it could not be said that the cross-examination could not have had any significance in the jury’s assessment of the applicant’s evidence (compare Weiss at [43]). Nor could it be said that the applicant’s evidence was obviously false as concluded in Castle at [66] in relation to the evidence of Mr Castle. In that case, the plurality in the High Court found it open to the Court of Criminal Appeal to conclude that Mr Castle’s evidence “was not just implausible and inconsistent with the objective evidence, it was ‘so obviously false that it carrie[d] no weight at all’” (Castle at [52] and [66]). The same cannot be said of the applicant’s evidence.

13. [63]

    For these reasons, the proviso to s 6(1) of the Criminal Appeal Act is inapplicable. This is because I am not satisfied that the evidence properly admitted at trial proved the appliciant’s guilt beyond reasonable doubt. As this necessary condition of the application of the proviso has not been established, it is inapplicable. The applicant’s convictions must therefore be quashed by reason of the trial miscarrying for the reasons identified in ground 2.

The relevant legal principles

1. [64]

   The Mental Health (Forensic Provisions) Act 1990 (NSW) stipulates procedures to be followed when a question as to an accused’s fitness to be tried is raised before trial. If the accused is found to be unfit, following a non-adversarial hearing, he or she cannot be tried but must be referred to the Mental Health Review Tribunal for further assessment. These procedures were not however followed in the present case and the applicant’s fitness to be tried arises for consideration for the first time on this appeal.

2. [65]

   In R v Presser [1958] VR 45 at 48, Smith J described the “minimum standards which [an accused] needs to equal before he can be tried without unfairness or injustice to him” as follows:

3. [66]

   In Kesavarajah v The Queen (1994) 181 CLR 230 at 245; [1994] HCA 41 the plurality summarised these minimum standards as requiring the ability:

4. [67]

   In Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [26] and [27], Gleeson CJ referred with approval to the following further propositions concerning an accused’s fitness for trial (citing R v Taylor (1992) 77 CCC (3d) 551 at 564-565):

5. [68]

   As to the position where the question of an accused’s fitness to stand trial is raised for the first time on appeal, Howie J (with the concurrence of Tobias JA and Shaw J) said in R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283 at [31]:

6. [69]

   This passage was referred to with approval in R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [294]-[295]. In that case, the Court emphasised as follows that a reduction in the capacity of an accused with respect to the matters identified in R v Presser is insufficient if the minimum standards are nevertheless still met:

7. [70]

   In that case the appellant was found to be fit to be tried notwithstanding that he had a frontal lobe dysfunction and a brain tumour which was amenable to treatment, and had displayed inappropriate behaviour during the course of the trial. The Court concluded as follows (at [303]):

Dr Furst’s report of 11 August 2015

1. [71]

   Following an assessment of the applicant on 15 July 2015, Dr Richard Furst, a consultant forensic psychiatrist, stated in a report dated 11 August 2015 that:

2. [72]

   Dr Furst concluded as follows:

3. [73]

   Contrary to Dr Furst’s recommendation, the applicant’s fitness to be tried was not re-assessed prior to his trial.

The applicant’s trial

1. [74]

   The applicant’s trial commenced on 19 April 2016 and concluded on 10 May 2016. He was sentenced on 23 September 2016.

2. [75]

   No reference was made during the course of the trial to any possible unfitness of the applicant to be tried. His trial counsel gave evidence before this Court that shortly after 11 August 2015 he had read a copy of Dr Furst’s report of that date but that his subsequent dealings with the applicant did not give him any concerns about his mental health which would have caused him to question the applicant’s fitness to be tried. Trial counsel said in affidavit evidence before this Court:

3. [76]

   In cross-examination trial counsel said that an observation of Dr Furst in his 11 August 2015 report that the applicant appeared “lucid on superficial assessment” did not raise in his mind the possibility that, despite trial counsel’s observations indicating otherwise, the applicant was “suffering from significant mental illness”.

4. [77]

   In evidence before this Court were 14 pages of handwritten notes prepared by the applicant as instructions to his legal representatives in relation to his trial. They deal in detail with the applicant’s version of the events that occurred on the days in question. Also in evidence was an 11 page typed document that was prepared from notes including the applicant’s handwritten notes. This document was located in the applicant’s file by his solicitor in this appeal. The applicant’s trial counsel recalled having notes of one or both of these types as part of his instructions but did not have sufficient recollection to be able to identify the particular notes that were tendered in this Court.

Reports obtained for the purposes of sentencing

1. [78]

   In a pre-sentence report of 8 July 2016 Professor David Greenberg, a consultant forensic psychiatrist, concluded that he had “no reasonable grounds” to believe that the applicant was “a mentally ill person suffering from a mental illness or a mental disorder as defined within the meaning of Chapter III of the NSW Mental Health Act 2007”. He continued:

2. [79]

   In a report dated 6 July 2016 Ms Erin Wroblewicz, a community corrections officer, referred to the applicant as having been “diagnosed with schizophrenia in custody” and being “currently prescribed an anti-depressant and an anti-psychotic”. She said:

3. [80]

   For the purposes of sentence, Dr Furst prepared a further report, dated 19 September 2016, following an assessment of the applicant made by him on 31 August 2016. Under the heading “Mental State Examination”, Dr Furst stated:

4. [81]

   After referring to delusional thinking and emotional disturbance at the time of the applicant’s alleged offences, Dr Furst said:

Dr Furst’s third report

1. [82]

   Subsequent to the applicant’s sentencing, Dr Furst was requested to report on the applicant’s fitness to be tried at the time of his trial. Dr Furst took account of his assessment of the applicant on 31 August 2016, reviewed the transcript of the applicant’s evidence at the trial and reported further on 17 November 2018.

2. [83]

   Dr Furst commented on the transcript of the applicant’s evidence at his trial as follows:

3. [84]

   Dr Furst concluded as follows:

Dr Furst’s oral evidence

1. [85]

   In this Court Dr Furst was examined at length about his reports and his consideration of the transcript of the applicant’s evidence at his trial. His view about the applicant’s fitness to be tried remained as expressed in his third report, as indicated in the following exchange with the Crown’s counsel:

2. [86]

   As well, Dr Furst agreed that the number of non-responsive answers that the applicant gave during his evidence was not “particularly significant or out of the ordinary” and that the applicant’s assertions in evidence that there had been coaching of witnesses and editing of CCTV footage were not necessarily delusions from a psychiatric point of view but rather simply represented self-serving assertions.

Conclusion concerning the applicant’s fitness to be tried

1. [87]

   Based on the evidence to which I have referred and my own assessment of the transcript of the applicant’s evidence at his trial, I consider that the test postulated in RTI has been satisfied, that is, if the question of the applicant’s fitness to be tried had been raised at his trial, “the court acting reasonably must have found that [he] was fit to stand trial” (see [68] above).

2. [88]

   The only expert evidence specifically directed to the applicant’s fitness for trial was that of Dr Furst. Whilst he expressed an adverse view as to that some eight months prior to trial (in his report of 11 August 2015), he contemplated in that report that the position might change if the applicant had adequate treatment. This appears to be what occurred as, according to his report of 17 November 2016, Dr Furst regarded the applicant as relevantly fit when he assessed him on 31 August 2018, some two and a half months after the trial concluded, and expressed the view in that report that he would also likely have been fit to be tried at the time of the trial. As his oral evidence confirmed (see [86] above), his inability to rule out the possibility that the applicant was unfit to be tried at the time of the applicant’s trial was based upon the fact that he had not consulted with the applicant at the time of trial.

3. [89]

   Like Dr Furst, I consider that examination of the transcript of the applicant’s evidence at his trial indicates his fitness to be tried at that time. Such an examination was treated by this Court in Rivkin as of significance. In the present case, the applicant gave evidence in a lucid and forceful manner, leaving me in no doubt that he understood the nature of the proceedings and what was occurring at the trial, and was well able to communicate his version of events and to defend his interests. Again like Dr Furst, I do not regard the small number of unresponsive answers that the applicant gave as of any significance. Overall, the applicant was very responsive in his answers. The number of unresponsive answers he gave was well within the range applicable to most witnesses.

4. [90]

   Moreover, the applicant’s references to the possibility of the complainants being coached and to CCTV film being edited were quite explicable as self-serving responses by which the applicant sought to explain evidence that presented difficulties for his case. As Dr Furst acknowledged, they were in those circumstances of no real significance from a psychiatric point of view. Even if there was a delusional element to those assertions, the observations of Gleeson CJ in Eastman (see [67] above) confirm that that would not in itself be an indication of unfitness to be tried.

5. [91]

   In addition, the evidence of the applicant’s trial counsel (see [75] above), the applicant’s detailed handwritten instruction notes (see [77] above) and the absence of any evidence from the applicant himself suggesting that he had any difficulty understanding or participating in the trial process strongly support the conclusion that he was fit to be tried (see the observations in Rivkin in [69] above).

6. [92]

   I do not consider that the views formed by this Court, and indeed also by Dr Furst, should be given less significance because of Dr Furst’s observation in his 11 August 2015 report that the applicant appeared “lucid on superficial assessment” (see [76] above). The assessment that is able to be made of the applicant by means of scrutiny of the transcript of his evidence in court goes far beyond a “superficial assessment”.

DETERMINATION OF GROUND 3 – WHETHER THE TRIAL MISCARRIED ON ACCOUNT OF THE INCOMPETENCE OF THE APPLICANT’S COUNSEL

1. [93]

   As Gleeson CJ pointed in R v Birks (1990) 19 NSWLR 677 at 685; (1990) 48 A Crim R 385, as a general rule an accused is bound by the conduct of his or her counsel at trial and incompetence of that counsel is not a ground for setting aside a conviction. Rather, the critical question in this context is whether there has been a miscarriage of justice (Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at 665 citing McHugh J in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [79]; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [24]). Ordinarily, that question is to be determined by reference to the objective features of the trial, without regard to explanations from, or instructions to, trial counsel (TKWJ v The Queen at [8] and [16]; Nudd at [9]).

2. [94]

   As indicated in addressing ground 2, the objective features of the trial in the present case indicate that there has been a miscarriage of justice. It is unnecessary therefore to resort to consideration of explanations of, or instructions to, counsel. Nevertheless, as evidence of those matters was adduced in this Court without objection, it is appropriate to indicate that regard to them confirms that there has been a miscarriage of justice.

3. [95]

   The criticism of the applicant’s trial counsel made in the applicant’s written submissions on appeal was limited, first, to incompetence in failing to have the applicant’s fitness for trial reassessed prior to the trial taking place. In light of the terms of Dr Furst’s pre-trial report of 11 August 2015 (see [71] above), it is clear that counsel, who became aware of the report at or soon after it was issued, should have had the applicant reassessed. Nevertheless, no miscarriage of justice resulted because, as I have found, the applicant would have been found fit to be tried if that issue had been considered at the time of his trial.

4. [96]

   Secondly, the applicant contended on appeal that his trial counsel was incompetent in failing “to object to the impugned cross-examination of the applicant, or to take steps to rectify, in any way, the unfair prejudice that this caused”. The applicant’s trial counsel did in fact object when the impermissible questions were commenced to be asked although the objection was not pursued in a persistent and vigorous fashion. Importantly however counsel failed to take any of the possible courses of action open to him to seek to overcome the prejudice to his client resulting from the impermissible questions.

5. [97]

   In the present case, matters 1 to 6 identified in [34] above were clearly reflected in the instructions which it can be concluded were available to his trial counsel. The applicant’s trial counsel did in fact put the fourth matter to C2 in cross-examination. The applicant referred to the seventh matter in his handwritten instructions, writing that “[w]hilst having sex [C2] answered a phone call talking generally to a male friend. After the call I asked her if it was her boyfriend”. As evidence to a similar effect was in fact given by C2, the need to put this matter to her in cross-examination did not arise. The eighth matter was not referred to in the applicant’s instructions but was referred to in the 11 August 2015 report of Dr Furst which the applicant’s trial counsel read soon after its issue.

6. [98]

   As I have said, there may well have been acceptable reasons why those matters were not put to Crown witnesses and on appeal the applicant did not contend otherwise. Instead, the criticism of the applicant’s trial counsel was that he did not take one of the steps potentially available to him to have the prejudice to the applicant remedied. These were referred to in Birks at 683 and summarised in R v Orchard at [43] as including:

7. [99]

   In cross-examination, the applicant’s trial counsel acknowledged that he had not taken any of these steps and was unable to give an explanation for why he had not done so.

ORDERS

1. [100]

   Considerable time has elapsed in bringing the challenge to the applicant’s convictions to a hearing in this Court. Counsel for the applicant explained before this Court what had occurred but as the merits of the appeal have been fully argued and I have concluded that a substantial miscarriage of justice has occurred, it is not necessary to address this point. Moreover, in light of that conclusion, any necessary leave to appeal should be granted. As a result, I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal, to the extent necessary.

   2. (2)

      Grant the applicant all necessary extensions of time.

   3. (3)

      Quash each of the appellant’s convictions that were entered pursuant to the jury verdicts returned in the District Court on 16 August 2019.

   4. (4)

      Direct a retrial of the appellant on the charges on which he was convicted.

2. [101]

   FULLERTON J: I have had the advantage of reading the judgments of Macfarlan JA and Fagan J.

3. [102]

   I agree that leave should be granted to extend the time for filing the appeal and that leave to appeal be granted. I also agree, for the reasons given by Macfarlan JA, that ground 1 has not been made out.

4. [103]

   I agree with Fagan J that grounds 2 and 3 of the appeal have not been made out and gratefully adopt his Honour’s reasons for so finding. I also agree with his Honour that even were the second ground of appeal to be made out, there has been no resulting miscarriage of justice.

5. [104]

   Accordingly, in disposition of the appeal, I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal, to the extent necessary.

   2. (2)

      Grant the applicant all necessary extensions of time.

   3. (3)

      Appeal dismissed.

6. [105]

   In proposing those orders, I wish to make the following remarks.

7. [106]

   I endorse the concerns expressed by Fagan J that where a prosecutor embarks upon a cross-examination of an accused on the basis of defence counsel not having put to a prosecution witness a matter about which the accused later gives evidence, whether that is done to lay the foundation to put to the accused that they are fabricating their evidence or to make an adverse comment on their credibility in closing address, in strict compliance with the prosecutor’s overriding duty of fairness, the prosecutor should only pursue that line of cross-examination where there is a proper basis to do so. The obligation of the prosecutor to refrain from any cross-examination of the accused that may give rise to unfairness is fundamental to a fair trial.

8. [107]

   As with the cross-examination of the accused in this case, I suspect that all too frequently the forensic caution which a prosecutor should exercise before embarking upon a cross-examination of an accused with a view to laying the ground work for what Fagan J conveniently described in [123] of his judgment as a “Birks comment” on the accused’s evidence, is overlooked or the importance of caution not appreciated. The reasons for the need to exercise caution are numerous and obvious (see the extract of Llewellyn v R in Fagan J’s judgment at [125] where Garling J reviewed the authorities and the principles that emerge from R v Birks and later authorities at [136]-[137]).

9. [108]

   An incautious or intemperate cross-examination of an accused directed to what was “not put” to a Crown witness may have the unintended effect of driving a wedge between the accused and counsel, including where the explanation for defence counsel’s failure to cross-examine a Crown witness in a particular way would, or might, reveal a privileged communication, including the accused’s refusal to follow counsel’s advice or the accused’s failure when giving evidence to appreciate the significance of that advice. An incautious or intemperate cross-examination of an accused might also have the unintended effect of doing nothing more than exposing a failure on the part of defence counsel to cross-examine a Crown witness because of ineptitude or carelessness, neither of which should be permitted to operate to penalise the accused. Where this does occur, it becomes the responsibility of the trial judge to alert the jury to the range of explanations for why a particular question was not asked, or a line of questioning not undertaken by defence counsel, in order to avoid the risk of unfairness to the accused from the prosecutor’s questioning.

10. [109]

    In some cases (and in my view this is one of them), while there may be no unfairness to an accused of that particular kind, it nevertheless becomes obvious to the prosecutor, usually after the event, that such inconsistency between the accused’s evidence and the approach of defence counsel in discharge of their duty to contradict a prosecution witness about the matters of fact that are in issue in the trial as might at one time have appeared to be material, pales into insignificance in the context of the cross-examination as a whole. Where this occurs, the Crown invariably makes no ultimate submissions about the cross-examination in closing address and the cross-examination is left in forensic limbo. In those circumstances, it would seem to me to follow that no proper basis for the adverse inference inherent in the Birks comment was ever available, and that were a more considered approach to have prevailed at the outset, the impugned cross-examination would not have been embarked on at all.

11. [110]

    I agree with Fagan J’s observations at [126] that even where it is shown on appeal that the prosecutor cross-examined the accused about the apparent failure of defence counsel to put a proposition, or state of affairs, to a Crown witness without an adequate basis, or where the jury is invited by the Crown to draw an inference adverse to the accused’s credit without adequate guidance or direction from the trial judge, a miscarriage of justice may not be the inevitable conclusion. The significance of the Crown’s cross-examination of an accused with a view to making a Birks comment will likely depend on the relative importance of the matter that was not put to a Crown witness, including its significance in the context of the issues that were litigated at trial, and the way in which those issues were dealt with by the Crown and the defence in final addresses. I acknowledge, as does Fagan J at [124], that in a particular case the significance of the matter not put may be so central to the matters in issue that the cross-examination of the accused about it is capable of adversely impacting upon the accused’s credit, including by laying the foundation for a submission that they were fabricating their evidence.

12. [111]

    However, for the large majority of cases not in that category, this Court is frequently given the task on appeal of unravelling whether the Crown lacked justification for questioning the accused to justify the making of a Birks comment, or whether the jury were given sufficient guidance as to what inferences they might properly draw from that cross-examination, or both, in order to determine whether the impugned questioning was productive of such unfairness that a miscarriage of justice has been occasioned.

13. [112]

    I propose a practical way of averting the risk of a trial miscarrying or a conviction being overturned where a prosecutor has embarked upon a cross-examination of an accused with a view to laying the foundation for a Birks comment without a proper basis for doing so without limiting the entitlement of the prosecutor, in an appropriate case, to seek persuade the jury that the accused’s account has been recently invented or fabricated. This approach may also avoid a conviction being overturned because a trial judge’s directions about the prosecutor’s cross-examination either gave it unwarranted significance by diverting the jury from the matters which ought to have been the focus of their attention or because the directions were inadequate in some material respect.

14. [113]

    Where the prosecutor identifies in the accused’s evidence a material fact or a state of affairs which was not put to a Crown witness for their comment by defence counsel, before embarking upon a cross-examination of the accused the prosecutor should apply for leave to reopen the Crown case for the limited purpose of having the witness recalled. This will allow cross-examining counsel to put the matter to the witness, or if counsel does not wish to do so, perhaps for valid forensic reasons, for the Crown to invite the witness to comment upon the matter raised or volunteered by the accused. Where appropriate an application for leave to ask a leading question may need to be made.

15. [114]

    In making the application for leave to recall the witness, the circumstances underpinning the failure to cross-examine the Crown witness will inevitably be exposed, logically either a decision deliberately taken by defence counsel or a failure to do so through inadvertence or carelessness. Where the prosecution witness is recalled on the Crown's application (perhaps a joint application with defence counsel), and the witness denies the matter asserted by the accused, the credit contest is between the witness and the accused, as it should be.

16. [115]

    That approach would likely have avoided altogether what happened in this case. Here the prosecutor’s cross-examination of the accused proceeded on the untested assumption that defence counsel would have “put” the various matters to the complainants, were those matters the subject of instructions from the accused, because he would have been obliged to do so. This same untested assumption presumably grounded the prosecutor’s belief at the time he embarked on the cross-examination that he had a proper basis to lay the foundation for a closing submission that the accused should not be believed, either because he was adding to his evidence to shore up his credit or lying with the same motive. If the prosecutor did not hold that belief, the cross-examination should not have been embarked upon at all. In this case, were he to have taken the approach I propose, the untested and, in my view, misplaced assumption by the prosecutor that he had a proper basis to embark on the cross-examination of the accused, would have been exposed and the cross-examination avoided altogether.

17. [116]

    The Crown’s failure to take what I regard as an appropriate and cautionary approach before putting to the accused that he was fabricating his evidence has been revealed. He made no attempt to clarify with defence counsel whether the accused had in fact instructed him as to any of the six matters in contention but which counsel had overlooked putting to the complainants, or to clarify whether counsel had made the forensic decision not to put to the complainants some of the features of his instructions and the accused had volunteered those details against advice or, perhaps, enquiring of counsel whether he had overlooked advising his client not to volunteer those details,.

18. [117]

    In the result, no submission was advanced by the Crown as to what the jury might make of the cross-examination in their deliberations to verdict likely because the Birks comment was abandoned as without forensic weight or significance. It seems to me that the impugned cross-examination, at its highest, went no further than the Crown’s criticism of defence counsel’s lack of thoroughness in his questioning – a matter that was entirely peripheral to the jury’s deliberations. Viewed in that way, and after taking into account the detailed analysis undertaken by Fagan J of the import of the prosecutor’s cross-examination of the accused in the context of the issues at trial and the full complement of evidence in the trial, I am satisfied no miscarriage of justice has resulted.

19. [118]

    The challenge the accused makes to the competence of his counsel is limited to his failure to take steps to avert the consequences of the prosecutor’s misguided cross-examination of the accused, by either objecting to the cross-examination, or at least seeking a direction from the trial judge that the failure to put propositions to the complainants may be explained for any number of reasons which have nothing at all to do with whether the accused’s account is true, or might possibility be true. While that is a course that might have been taken, given the way that defence counsel litigated the trial on the accused’s behalf, with the focus in his cross-examination of the complainants and in his closing address on whether the Crown could prove beyond reasonable doubt the accused knew or believed the complainants were not consenting to intercourse, a forensic approach which was not suggested by the applicant’s counsel on the appeal to reflect adversely on trial counsel’s competence, the failure to seek or object to the intervention of the trial judge does not amount to incompetence of a kind which would warrant the overturning of the convictions.

20. [119]

    FAGAN J: As proposed by Macfarlan JA, I would grant the necessary extension of time and leave to appeal. For the reasons given by Macfarlan JA I would reject ground 1. I have reached a different conclusion from his Honour regarding ground 2, which I would also reject, and I would reject ground 3. I would dismiss the appeal.

Principles relevant to ground 2

1. [120]

   The cross-examination complained of under ground 2 arose from perceived breaches of the rule in Browne v Dunn (1893) 6 R 67. That rule was expressed in the following terms by Hunt J in Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 16:

2. [121]

   It has been held that this rule of practice applies in criminal trials in New South Wales (R v Birks) although in MWJ v The Queen [2005] HCA 74 at [18] Gleeson CJ and Heydon J noted that:

3. [122]

   Ground 2 is concerned with one of the potential sanctions for non-compliance with the rule in Browne v Dunn, namely, inviting the jury to disbelieve evidence of a matter that has not been put to an opposing witness. In JD Heydon, Cross on Evidence, (11th ed 2017, LexisNexis) at [17460] the learned author describes that sanction in the following terms (from which I have omitted the author’s copious citation of authority):

4. [123]

   If a jury is to draw an inference adverse to the accused as a result of defence counsel not having put to a prosecution witness a matter of which the accused later gives evidence it would seem that three premises must be demonstrated from which the jury would be invited to follow a particular path of reasoning. The first premise is that the matter was not put to the relevant witness. The second is that defence counsel had a duty to put in cross-examination all relevant matters of which the accused had provided instructions. The third premise is that counsel fulfilled this duty. The jury is then invited to infer that because the matter was not put, defence counsel must have had no instructions as to it when conducting his cross-examination; therefore the accused must have fabricated his evidence on the matter after questioning of the Crown witness had concluded. This is broadly how the jury were invited to reason in R v Birks. As a shorthand I will refer to this as a “Birks comment” on the accused’s evidence.

5. [124]

   Amongst the examples in the cases of the Crown cross-examining an accused along these lines there are some in which questions have been asked of the accused concerning all three premises and where the Crown has also suggested a conclusion of recent invention directly to the accused. Further explanation of the reasoning has subsequently been given in the Crown’s final address and/or in the summing up. In other cases the accused has been cross-examined as to the premises but the path of reasoning and the conclusion of fabrication have been left to final address and/or to the summing up. A matter that has not been put to a Crown witness may in a particular case be so important and the failure to put it so stark that cross-examination of the accused on the premises of a Birks comment may carry the clear implication of recent invention even before the reasoning has been spelt out.

6. [125]

   In Llewellyn v R [2011] NSWCCA 66 at [134]-[135] Garling J considered R v Birks and extracted the principles from that and later authorities as follows:

7. [126]

   Where cross-examination of this nature has taken place without a proper basis, or where the Crown or the trial judge has invited the jury without appropriate qualifications to draw an inference adverse to the accused’s credit, there will not necessarily be a miscarriage of justice. The effect upon the trial may depend upon the relative importance of the matter that was not put to a Crown witness and in relation to which the Birks comment was made. RWB v R [2010] NSWCCA 147 is an example.

8. [127]

   In RWB v R the Crown cross-examined the accused about his counsel’s failure to put to the complainant an event that the accused subsequently asserted in his evidence in chief, “the clear suggestion [of the cross-examination of the accused] being that he had fabricated this part of his evidence”: see [6]-[7]. The Crown in final address invited the jury to conclude that the accused was “making that up” because:

9. [128]

   The trial judge then told the jury (at [65]):

10. [129]

    It was conceded by the Crown on the appeal in RWB v R “that the submissions of the Crown prosecutor ought not to have been endorsed by the directions of the trial judge, at least without [identifying] alternative potential explanations for the omission of counsel to cross-examine on that subject matter”. However, at [114]-[118] Simpson J (as her Honour then was) concluded that the matter that had not been put to the complainant was “of minimal significance”. Assuming that the accused had not mentioned it to counsel, that was unlikely to have been important to the jury. Her Honour said that “the evidence in question did not have, in the trial, anything like the significance it has assumed in the appeal”; the Crown’s comment in final address and the trial judge’s endorsement of that comment occasioned no miscarriage of justice. Johnson and McCallum JJ concurred. Even if this ground of appeal had been made out their Honours would have applied the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW).

11. [130]

    Unlike other cases in which cross-examination of this type has been considered, the present application for leave does not in my view turn upon whether the Crown lacked justification for questioning the accused for the purpose of making a Birks comment. Nor does it turn upon whether the Crown or the trial judge insufficiently explained to the jury the range of reasons why defence counsel might not have put certain matters to Crown witnesses. The questioning impugned under ground 2 was only a fragment of what would have been required to convey to the jury an implication of recent invention. It was inconclusive and ineffectual. It was not followed, either in the Crown address or in the summing up, by any invitation to the jury to reason that because matters were not put to Crown witnesses therefore the accused must have fabricated them. No path of reasoning toward such an inference was articulated, at any stage of the trial.

12. [131]

    R v Dennis [1999] NSWCCA 23 provides, by way of counter example to the present case, an illustration of a trial judge explaining to a jury both the premises for an inference of recent invention and the reasoning by which that inference might be drawn:

13. [132]

    Nothing like that was offered to the jury in the present case, by the Crown or by the trial judge. The impugned questioning of the applicant did not go beyond the first premise of a Birks comment. The jury could not have taken from the cross-examination any more than that the Crown was critical of defence counsel’s lack of thoroughness in questioning the two complainants. The present case has similarities with Lysle v R [2012] NSWCCA 20 where the Crown’s questions “were not calculated to take the Crown far” and were not found to be unfair: at [32]-[36] (RS Hulme J, Basten JA and Schmidt J agreeing).

14. [133]

    To elucidate the absence of prejudice from the questioning in this case it is necessary to consider each of the nine impugned passages individually, taking into account the limited extent to which the Crown addressed on some of them. It is also necessary to have regard to their collective effect. The first passage concerned a matter that defence counsel had not put to complainant C1, relevant to counts 1-8. The eighth impugned passage concerned a failure to put to police officers that they had coached witnesses. The other seven passages concerned matters not put by defence counsel to complainant C2, relevant to counts 9-11. Some reference should first be made to the context in which the questioning took place.

Evidence and corroboration of C1 – counts 1-8

1. [134]

   Macfarlan JA has summarised the evidence of C1 at [6]-[10]. Some additional details seem to be important. The applicant lived in a house that he shared with others. He had the use of a single bedroom. The advertisement he placed on the internet, to which C1 responded, displayed a photograph of the bedroom showing one double bed. Within the advertisement was a heading “The Property”, under which there were particulars including “1 bedroom house” and “1 bathroom”. Under a second heading, “The Room”, the particulars included “Prefer females” and “1 room available”. C1 gave evidence that she interpreted this as meaning that a bedroom was available for her exclusive use. She only learned during the course of her evening with the applicant that he occupied the bedroom depicted and that he was offering to share it. C1’s recollection was that this was discussed during the hour between 11:00pm and approximately midnight while they were at the bar known as The Little Guy. At that time the applicant told C1 he could bring in another bed if they reached agreement on her moving in. She said that she would want that.

2. [135]

   The effect of C1’s evidence was that the applicant plied her with alcohol at two bars over approximately 3½ hours from about 8:30pm until about midnight. He bought all the drinks, including a number of strong cocktails. C1 said that the applicant ordered drinks for her without asking while she was in the bathroom and that he encouraged her to drink by telling her of a custom that each time he said “Cheers” they should both drink two finger widths together. None of this was disputed. However, in cross-examination by the Crown the applicant denied that he was “trying to get [C1] drunk”. He denied that she appeared affected by alcohol when they left The Little Guy at midnight and walked to his house, ostensibly for the applicant to show C2 the room available to share. He presented her with a bottle of alcoholic cider when they arrived at the house.

3. [136]

   It was common ground that acts of sexual intercourse took place between the applicant and C1. She gave evidence that she did not consent to intercourse of any kind. That evidence was compelling. At the time the applicant was 47 years old. He was about 6 foot 3 inches tall. At 130 kg he was carrying significant weight. C1 was 23 years old and had only met the applicant that evening for the purpose of looking at accommodation. Her evidence that she was not sexually interested in him was given convincingly and must have appeared highly credible to the jury, taking into account their age difference and the brevity of their acquaintanceship. Having regard to the uncontested evidence about the quantity of alcohol C1 had consumed, the jury had no reason to doubt her evidence that when she was in the applicant’s room and he commenced sexual acts she felt physically helpless and was drifting in and out of consciousness. Therefore, although C1 did not suggest that she physically resisted the applicant, this did not cast doubt on her evidence that she was not consenting.

4. [137]

   C1 gave evidence that when she felt the applicant taking her dress off she said, “No, I don’t want to do anything”. She said she “wanted to protest more […] but I felt very intoxicated and was unable to respond properly”. The applicant progressed from massaging her back to massaging her bottom and then penetrating her with his fingers. He next “asked if he could go down on [her]” and C1 said she did “not believe [she] responded to [that] in any coherent sort of language” because of her intoxication. The applicant continued to perform various sexual acts whilst she felt “like a rag doll at that point, and unable to have control of my limbs”. During these acts she repeated to him “multiple times”, “Stop” and, “No, I don’t […] want to have sex. I want to go home”.

5. [138]

   Immediately following the sexual assaults, while in the bathroom of the applicant’s house, C1 sent a text message, “Help”, to her friend. Shortly afterwards, upon getting into a taxi on Glebe Point Road, C1 exhibited distress that was apparent to the driver. In the early hours of the morning, after a short journey to her backpacker hostel in Darlinghurst, C1 said to another occupant of the hostel, “I think I’ve been raped”. All of these matters corroborated C1’s direct evidence of non-consent.

6. [139]

   In light of the strong Crown case that C1 did not consent it is unsurprising that defence counsel made little effort to elicit from her in cross-examination that she was in fact consenting. In one question counsel asked whether, during the applicant’s sexual acts, C1 “really did not care what [she] and [the applicant] did that night”, to which she replied, “I did care, sir”. Later in the cross-examination defence counsel suggested that C1 had “attempted to masturbate him”. She replied:

The applicant’s evidence on counts 1-8

1. [140]

   The applicant’s evidence in chief was that C1 expressly consented to the sexual acts that he acknowledged having engaged in. He said that at the outset he asked C1 if he could remove her clothing “and she said yes”. When he had difficulty undoing a clip, “she undid the clip and stood up and removed her dress”. He said that he massaged her for 20 to 30 minutes and then:

2. [141]

   The applicant said that he believed C1 consented to him using his fingers. He denied that he had penile vaginal intercourse with C1 at any stage. He said that throughout his sexual acts with her:

First impugned passage of cross-examination – counts 1-8

1. [142]

   In cross-examination the applicant denied that at the bars he was “trying to get [C1] drunk”. He said that when he touched her in the second bar he believed “from her body language she indicated that she was receptive, however I could be wrong”. He claimed that they had held hands either in one of the bars or when leaving one of them. He said he had believed, during their time together in the bars, that C1 was sexually interested in him. He rejected propositions that in his bedroom C1 had said no when he asked her if he could perform oral sex on her and when he asked her to perform oral sex on him.

2. [143]

   Following the above topics of cross-examination, the first impugned passage occurred, as follows:

3. [144]

   This cross-examination had no prejudicial effect. In fact it had no effect whatsoever. The applicant did not concede that the relevant matter had not been put to C1. The question whether or not this had been absent from defence counsel’s questioning of her was left in the air. The prosecutor’s cross-examination did not reach the point of establishing even the first premise for reasoning to a conclusion that the applicant must have recently fabricated his thought that C1 “might have had an orgasm”. The second and third premises of a Birks comment were not mentioned. The reasoning toward such a comment was not spelled out by the cross-examiner. The questions did not of themselves imply, to a jury unschooled in the principles in Browne v Dunn and R v Birks, that the applicant must have changed his story between giving instructions to his counsel and giving evidence on oath, or that he must be unworthy of credit.

Reference to the first impugned passage in the Crown address

1. [145]

   In final address the Crown urged the jury to “accept without hesitation [C1’s] evidence that she said from the outset no sex and that she communicated that clearly to the accused”. The Crown submitted that from this “it was clear to the accused that she was not consenting to any sexual activity”. Further, on the element of knowledge of non-consent the Crown argued that the jury would be satisfied:

2. [146]

   Following this the Crown said:

3. [147]

   As was the case when the first passage of impugned cross-examination took place, the prosecutor said nothing in his address to explain what if any significance the jury should attach to defence counsel’s failure to put details to the complainant, let alone by what path of reasoning. The jury could not have read into this single sentence an invitation to conclude that the applicant was not to be believed, on any particular point or generally, because of an omission from his counsel’s cross-examination. I do not see that the jury could have filled in the missing premises and worked out for itself a logical basis for inferring that the applicant must have recently invented the possibility that C1 had an orgasm.

4. [148]

   In any event the point was of no consequence. Whether or not the applicant thought C1 “might have had an orgasm” was immaterial to any issue in the case. At best, it was peripheral. No argument was ever presented to the jury in address or in summing up as to how the applicant’s thoughts on this possibility might bear upon whether she consented to his sexual acts (an element that was not put in issue in defence counsel’s final address) or upon whether the applicant knew she was not consenting when he commenced intercourse with her (which was made the critical issue in address).

5. [149]

   The meaning for the jury of this small part of the Crown address was obscure not only for lack of the premises and articulated reasoning for an inference of recent invention. It was obscure also because it included criticism of the failure to put to C1 an act of digital penetration. This was an uncharged additional particular of intercourse that the applicant volunteered, potentially against his own interests, as an addition to the cunnilingus that was the subject of count 3.

6. [150]

   The Crown’s inconclusive comment in address did not provide retrospective explanation of the first impugned passage of cross-examination, so as to give that questioning a prejudicial effect. The defence address made no reference to any of the Crown’s cross-examination about failure to put matters to the complainants. Nor was any of that cross-examination referred to in the summing up. Hence, nothing occurred later in the trial to make the first impugned passage of cross-examination any more significant or prejudicial than it had been when the questions were asked. Nor could any of the other impugned passages, considered below, have been perceived by the jury to combine with the first passage to alter its anodyne complexion.

Evidence and corroboration of C2 – counts 9-11

1. [151]

   Accepting Macfarlan JA’s summary of C2’s evidence in chief (at [15]-[22]) I note the following additional details of the case concerning counts 9-11. The applicant and C2 had dinner at a Thai restaurant over about half an hour from 8:00pm. They had drinks at a nearby hotel for another half hour to 9:00pm and then continued drinking at The Little Guy from 9:00pm until 10:30pm. An Irish girl who spoke with C2 at The Little Guy said that she was evidently intoxicated and that she expressed concern at being in this state, late in the evening, without yet having undertaken the room inspection that was her purpose in meeting with the applicant.

2. [152]

   When the applicant and C2 left The Little Guy at 10:30pm to walk to the applicant’s house, CCTV footage showed C2 holding onto the hand of the Irish girl and the applicant prising it free and pulling C2 towards him and away from the premises. In oral evidence the Irish witness confirmed this interpretation of the footage. C2 said that she had never before been as drunk as she was when she left the bar. She could not walk properly.

3. [153]

   In examination in chief C2 said that once inside the applicant’s room, where she thought she was to make an inspection, the applicant pushed her onto the bed and held her down forcibly. He pulled her pants off and at the same time said, “Let’s just do this”. She said, “No, I don’t want to do this” and tried to close her legs “but he pulled them really a lot and, yeah, my legs just fell open”. He then had penile vaginal sex with her (count 9) while she “just kept telling him I don’t want to do it, and I just froze, I didn’t even … hit him or anything, I just lay there”. C2 said that her upper clothing remained on. Then the applicant “flipped [C2] over” and “opened [C2’s] legs from the back” and penetrated her again (count 11). She said that at some time during the sexual activity she attempted to speak on her mobile phone, which was within her reach on the bed.

4. [154]

   In cross-examination the applicant’s counsel put the following matters to C2, each of which she denied:

   1. (1)

      that she undressed herself and when the applicant attempted to remove her top she said, “Allow me” and did it herself;

   2. (2)

      that at the commencement of the applicant’s sexual acts she did not say no and in fact said nothing more after the words “Allow me”;

   3. (3)

      that she “crashed” on top of the applicant and initiated intercourse;

   4. (4)

      that the applicant suggested oral sex and she said yes;

   5. (5)

      that he performed oral sex on her;

   6. (6)

      that she got on top of him after the oral sex and had penile-vaginal sex;

   7. (7)

      that the applicant suggested to C2 “to do it doggy” and they had further intercourse;

   8. (8)

      that she offered to perform fellatio on him.

5. [155]

   When cross-examined about her behaviour at The Little Guy, C2 agreed with counsel’s suggestion that the applicant touched her on the bottom. She said this made her uncomfortable and caused her to get up and dance with some girls. She agreed that the applicant kissed her but she said she did not reciprocate and just stood there. Counsel suggested that the applicant embraced her in the bar. C2 said that he “pulled [her] in for a hug” and that, again, she did not reciprocate. The Irish witness said that the applicant “kept putting his arm around [C2’s] waist and trying to get her attention” and in response she “just latched onto my arm and sort of kept pulling at my arm and trying to push his arm away”. C2 rejected defence counsel’s proposition that she and the applicant discussed having sex while they were still at the bar.

6. [156]

   Defence counsel pressed C2 with photographs taken after she left the applicant’s house at about 11:30pm following his sexual acts. These showed that she had her arm around his waist as the 433 bus pulled up for her on Glebe Point Road, that she kissed him immediately before boarding and that she smiled as she stepped on. She said that the smile was a pretence and that she had her arm around him and kissed him because she was afraid and in shock after what had happened in his room.

7. [157]

   C2 said that she was physically repulsed by the applicant. Her evidence of non-consent was strongly corroborated by her behaviour the moment the bus departed. CCTV footage showed that she immediately commenced to cry inconsolably and to pull at her clothing. She spoke on the phone to a friend, hysterically. Her uncontrollable distress continued when she joined her friends in the city and subsequently when she was attended by police.

The applicant’s evidence – counts 9-11

1. [158]

   The applicant said that C2 appeared in a happy mood and only slightly intoxicated when she arrived with him at the front of his house. He said that in his room they both fully undressed themselves, she lay face down on the bed and he massaged her. Then he asked “would you like me to lick you, but it could have been, go down on you” and she said yes so he “performed oral sex”. He said that C2 then “crashed above me, grabbed the base of my penis and inserted … my penis into her vagina. She did not ask for my consent”. The applicant said that intercourse stopped when C2 attempted to speak on the phone and he then asked “if she would like to perform oral sex on me”, to which she said yes and “performed fellatio on me”. He claimed that he asked C2 “if she would like to do doggy style”, to which she said yes and assumed the position. He said he proceeded to have penile vaginal intercourse with her in that position and asked if he could ejaculate inside her. She agreed and they both had an orgasm.

2. [159]

   Under cross-examination by the prosecutor the applicant denied that C2’s wishes were “quite irrelevant to you by an early stage of the evening”. He denied that he set out to get her drunk and said that she did not become “very inebriated”. He maintained his description of the sexual activity between himself and C2 in his bedroom and rejected the proposition that this account was deliberately untruthful. C2’s account of the activity and of her saying no to the applicant was put to him in full by the prosecutor but he rejected it.

Second and third impugned passages of cross-examination

1. [160]

   The second impugned passage of cross-examination concerned the applicant’s assertion, in response to a question from the Crown, that C2 told him she was bisexual not a lesbian. The only questions and answers in this passage that appear relevant to ground 2 are the following:

2. [161]

   The third impugned passage, four pages further on in the transcript, concerned the same subject. It followed questions put to the applicant about whether he would have been jealous if C2 had wanted to remain in one of the bars, without him. The third passage proceeded as follows (emphasis added):

3. [162]

   These second and third passages of cross-examination, like the first, only addressed one premise of a Birks comment and did not articulate reasoning to support an inference of recent invention. The Crown did not ask the applicant about the second and third premises (regarding the duty of counsel to put all matters upon which the applicant had instructed him) or confront him with the implication that he had changed his account. But unless these matters were presented to the jury at some point – and they never were – the questioning went nowhere. In addition to the prosecutor refraining from any suggestion that defence counsel’s questions of C2 indicated a lack of instructions about the lesbian/bisexual matter, he made no challenge to the applicant’s answer (in bold), “may be my barrister should have cross-examined her better”. The Crown acquiesced in deflection of blame to counsel, neutralising any inference of a change of account between the applicant’s instructions and his evidence on oath.

4. [163]

   In address the Crown made no express submission of recent invention based on these two passages. The only reference to this part of the impugned cross-examination was this:

5. [164]

   That submission was followed by a reminder of evidence regarding a contemporaneous text message sent by C2 to her girlfriend, stating that she had told the applicant she was a lesbian. The Crown said this was powerful evidence corroborating C2’s version of what she had said about her sexuality.

6. [165]

   The fleeting reference in the Crown’s address did not fill in the essential premises and reasoning that were missing from any attempt to make a Birks comment by these two passages of questioning. No such comment or invitation was made in terms in the address. The strong corroboration provided by C2’s text message was the only basis upon which the Crown submitted the jury should prefer her evidence about what she told the applicant. The two impugned passages of cross-examination on this subject were left as no more than an apparently pointless criticism of defence counsel for omitting details from his questions to the complainant.

7. [166]

   As the trial judge gave no explanation of reasoning towards a Birks comment and said nothing about defence counsel’s failure to put to C2 that she told the applicant she was bisexual, the inefficacy and neutrality of the Crown’s cross-examination and address on this subject was unaltered by the summing up.

8. [167]

   In my view the second and third impugned passages of cross-examination involved no prejudice to the applicant.

Fourth and fifth impugned passages of cross-examination – counts 9-11

1. [168]

   The fourth impugned passage of cross-examination concerned the accused’s evidence in answer to the prosecutor that C2 had tongue-kissed him at The Little Guy, as follows:

2. [169]

   Related to this is the fifth passage, five pages on:

3. [170]

   These two passages, whether considered alone or together, were not prejudicial to the applicant for the same primary reason as that given in relation to the first three impugned passages. The questioning went no further than the first premise of a Birks comment. It did not convey explicitly that the jury should infer that the applicant had made up the tongue kiss after C2 had been questioned. Nor would such an inference have been obvious to the jury given the lack of any argument in the addresses or any direction in the summing up as to why such a conclusion might follow.

4. [171]

   Again, this line of questioning would have conveyed to the jury no more than a collateral and inconsequential criticism of a lack of thoroughness in the defence cross-examination of C2.

Sixth impugned passage of cross-examination

1. [172]

   The sixth impugned passage concerned the applicant’s evidence in chief that C2 had performed oral sex on him (emphasis added):

2. [173]

   Within a page of transcript the Crown retracted and apologised for this cross-examination, as follows:

3. [174]

   Apart from any other consideration, this retraction and apology appears to have neutralised any possibly prejudicial effect of the sixth impugned passage of cross-examination. Further, when the applicant mistakenly took at face value the Crown’s suggestion that defence counsel had not put to C2 that she performed oral sex on him, he provided an explanation, namely, lack of adequate opportunity for himself and his barrister to prepare for trial (the answer highlighted in bold). This was not challenged by the Crown, let alone rebutted, either at this point in the questioning or anywhere else. When the prosecutor accepted that he had proceeded upon a false premise and apologised, the whole matter came to nothing. If there was any effect it was to make the applicant appear rational, reasonable and overly willing to make a concession.

4. [175]

   As it happens, the transcript shows that while it was certainly put to C2 that the applicant asked her to perform fellatio on him and that she agreed, it is not entirely clear that defence counsel’s questions of C2 invited her to accept that she carried out the act. That does not diminish the neutralisation of the sixth impugned passage, in the manner referred to above. The subject was never returned to in address or in summing up.

Seventh impugned passage of cross-examination – counts 9-11

1. [176]

   The Crown prosecutor reminded the applicant that he said in chief that he had asked C2 whether it was all right for him to ejaculate inside her. There followed the seventh impugned passage of cross-examination, in these questions and answers (emphasis added):

2. [177]

   This was another incomplete cross-examination on only the first premise of a Birks comment. The applicant’s first answer (in bold) deflected the questioning into another criticism of his counsel for oversight. The Crown did not during the questioning or in address challenge the applicant’s imputation of blame to his barrister. The concluding suggestion that the applicant was fabricating had no logical force without both an explanation to the jury that counsel was obliged to put to C2 any matters upon which the applicant had instructed him and a rebuttal of the applicant’s attribution of fault to counsel.

3. [178]

   The Crown’s address made no reference at all to this seventh impugned passage. It caused no prejudice to the applicant and gave rise to no miscarriage of justice.

Eighth impugned passage of cross-examination – counts 9-11

1. [179]

   The eighth impugned passage occurred in response to the applicant’s denial that he said to C2, soon after she entered his bedroom, “Let’s do it” or words to that effect. The relevant evidence was as follows (emphasis added):

2. [180]

   Once again only the first premise of a Birks comment was touched upon and the subject of defence counsel not having cross-examined police officers about coaching witnesses was not returned to or elaborated in the Crown’s address or in the summing up. Further, the Crown left unchallenged the applicant’s answer (in bold) that his legal team thought it “best not to” require the relevant police to attend for cross-examination on his allegation of witness coaching and that he reserved his right “to take the New South Wales police force on in the Supreme Court” over the matter. This incomplete cross-examination, on a collateral topic, was of no consequence and did not create prejudice.

Ninth impugned passage of cross-examination

1. [181]

   The ninth impugned passage arose from an error on the part of the prosecutor. It had been C2’s evidence that the person with whom she was in phone contact both while the applicant was sexually assaulting her and again later when she was riding the 433 bus to the city was a young man she had been seeing but who was not her “official boyfriend”. There was no question of any of this having to be put to C2 by defence counsel because it came from the complainant herself. The prosecutor’s error in questioning the applicant upon a supposed failure of his counsel to cross-examine C2 about the matter was pointed out by the applicant during the passage of impugned questioning, in the answer emphasised below. Any potential prejudicial effect was thereby immediately dispelled.

2. [182]

   The ninth passage was as follows:

3. [183]

   If anything was implied to the jury by this passage it would only have been that the applicant responded to the Crown reasonably, with a sensible answer correcting the prosecutor’s misapprehension. In this context, the question “Are you just making things up as you go along Mr Hofer?” was random, not logically connected to the surrounding questions and not given any force by them. The matter was not referred to again in address or in summing up. This cross-examination was neither prejudicial nor significant.

Combined effect of the passages

1. [184]

   All the impugned passages in the present case may be contrasted with the cross-examination that was found impermissible in Picker v R [2002] NSWCCA 78, set out in the judgment of Smart AJ in that case at [40]. The accused in that case was taxed with four details of his encounter with the complainant, none of which had been put to her in cross-examination. The four matters were raised by the prosecutor one after the other and in relation to each a question was asked: “That’s something you’ve just made up isn’t it?” or “And that’s because she never said such a thing to you at all?” or “Because you’ve just made them up haven’t you?” At [42] Smart AJ held:

2. [185]

   There was no such unmistakable gist of the cross-examination of the applicant. In the present case there was not an insistently repeated suggestion of recent invention as seen in Picker v R. Another contrast with Picker v R is that the offending cross-examination in that case was followed by an extravagant Crown address, expressed in “florid” and “caustic” terms, emphasising fabrication with respect to the aspects of the accused’s evidence that had not been put to the complainant. The address in the present case was restrained.

3. [186]

   The applicant’s counsel in this Court submitted:

4. [187]

   I do not accept these submissions. They are made from the point of view of an experienced criminal court advocate with full appreciation of the rule of professional practice in Browne v Dunn. The submissions derive from counsel’s experience that if purported details of a sexual assault are not put in cross-examination of the complainant and if they first emerge in the accused’s evidence, they are likely to be a departure from the instructions upon which the cross-examination took place. Similar knowledge and experience of trial procedure is a likely explanation of why the Crown’s cross-examination in these passages was so incomplete and ineffectual. The prosecutor may well have thought that he was exposing lack of credit in the accused. Both Crown counsel at the trial and the applicant’s counsel in this Court have made an unfounded assumption about how the jury would have perceived the questioning in the absence of instruction about the fundamental premises and path of reasoning that are involved in a Birks comment upon credit.

5. [188]

   The jury were never told why, if at all, it mattered that defence counsel had failed to ask the complainants about a handful of details of which the applicant later gave evidence. Birks reasoning is not intuitive and an implication of recent invention would not have suggested itself to the jury from the nine impugned passages. The sum of these insignificant lines of cross-examination of the applicant is, still, insignificant. I would reject ground 2.

The proviso

1. [189]

   If I am an error in concluding that there was no prejudice to the applicant from the questioning impugned under ground 2 I would nevertheless apply the proviso to s 6(1) of the Criminal Appeal Act and dismiss the appeal. It is a necessary condition of taking this course that the Court should form its own affirmative conclusion, upon the whole of the evidence at trial and taking into account the jury’s verdict, that guilt was proved beyond reasonable doubt: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81. I have no hesitation in reaching that conclusion.

2. [190]

   The first element of each offence, the commission of an act of sexual intercourse, was admitted for all counts upon which the applicant was convicted except counts 6 and 7. Those were two instances of penile-vaginal penetration of C1. The applicant denied that there had been any intercourse of this nature throughout the episode with C1 but the jury found these two counts proved. They evidently felt a reasonable doubt about the last alleged occasion of penile penetration because they acquitted on count 8. C1’s evidence that penile penetration had occurred was clear and was unshaken in cross-examination. She was too intoxicated to resist but sufficiently conscious to know what was being done to her and to feel and express great distress about it immediately after. No doubt the jury considered that a woman of 23 would know whether she was penetrated by a 130 kg virtual stranger during an episode such as this, even in the impaired state of consciousness she described. While C1 was highly credible, the applicant lacked credibility, largely as a result of his inherently implausible denial of knowledge that the complainants were not consenting to any sexual acts.

3. [191]

   The second element of each offence, lack of consent, was not in dispute on defence counsel’s address and was established beyond reasonable doubt by the evidence of C1 and C2. Both were thoroughly corroborated by contemporaneous text messages and immediate complaint. The Crown also established beyond reasonable doubt that the applicant knew the complainants were not consenting, or at the least that he was reckless as to their non-consent. The applicant’s evidence that each complainant expressly agreed to some of his proposals for intercourse and that in some respects they took the initiative was compellingly contradicted by C1 and C2 and was irreconcilable with the manifest and extreme distress of each of them in the immediate aftermath. His evidence that he thought they agreed was objectively improbable given the age difference, the brief period over which each complainant had made his acquaintance and the limited, non-romantic business purpose for which they had met with him. The incontestable evidence that the applicant had plied each of these young women with alcohol evinced his intent, from the outset, to reduce their capacity for resistance; it showed his reckless disregard for whether they consented or not.

4. [192]

   Turning to the question whether a significant miscarriage of justice actually occurred, I do not consider that the Crown’s questioning, if it was prejudicial at all, could be said to have gone to the root of the trial. If the jury took from these passages an impermissible and unjustified invitation to infer recent invention, this could only have been in relation to one or more of the details upon which the impugned questioning was conducted. It is true that there was no caution from the judge that failure to put these points to the complainants may have been through counsel’s fault rather than because the applicant had given no instruction on the matters and fabricated them afterwards. However the imputation of blame to counsel was positively advanced by the applicant himself in relation to three of the impugned passages and, in relation to another, the applicant correctly identified that the relevant matter had come from the Crown’s witnesses and did not have to be put to her.

5. [193]

   The four passages in which the Crown’s criticism of “failure to put” was adequately answered by the accused himself, without challenge, were as follows:

6. [194]

   Further, as neither the Crown nor the trial judge suggested to the jury the second or third premises of a Birks comment, nor invited them to adopt the Birks path of reasoning, no caution about the dangers of and alternatives to an inference of recent invention was necessary.

7. [195]

   In Weiss v The Queen the High Court said (at [43]):

8. [196]

   If the impugned cross-examination was impermissible and to some degree prejudicial, in my opinion it would, or at least should, have had no significance for the jury. Certainly if there was such an error it was not one that involved any significant denial of procedural fairness or that constituted a serious breach of the presuppositions of the trial. The Crown case was of such strength on the central issue of whether the applicant knew the complainants did not consent that one may be confident there was no substantial miscarriage of justice in the verdicts returned.

9. [197]

   This conclusion is reinforced with respect to some of the passages by the unimportance of the underlying subject matter. For example, the topic of the second and third impugned passages, whether or not C2 told the applicant early in the evening that she was a lesbian, was inconsequential to the issue of knowledge of non-consent. The possibility that the applicant might have been disabused of a perception of consent as a result of C2 declaring that she was a lesbian could have had some relevance if the applicant had claimed that his belief in her consent came only from subtle indicators of physical attraction over the course of the evening. But what the applicant’s counsel put to C2 about her behaviour in the bedroom and the evidence the applicant then gave on that subject rendered subtle indications from earlier in the evening, either for or against physical interest, immaterial. As earlier recounted, the applicant’s evidence was that in the bedroom C2 was not only willing but eager: she undressed herself, said yes to his offer to perform oral sex on her and allowed it, “crashed above me, grabbed the base of my penis and inserted … [it] into her vagina”, said yes to his invitation that she perform oral sex on him and then performed it and, when invited to engage in penile vaginal sex from another position, assumed the position without demur.

10. [198]

    It is true that in address defence counsel gave considerable attention to the behaviour of C2 at the bars and to what the applicant might have inferred regarding her interest in him. But the jury were confronted with the difference between the applicant’s description of C2 ravishing him in his bedroom and, on the other hand, her evidence that this 130 kg man held her down on the bed while he removed her lower clothing against her protests and then forced himself upon her. Whether or not the jury would feel a reasonable doubt about the applicant knowing that C2 did not consent turned upon their assessment of these two starkly conflicting accounts. They must have accepted C2’s narrative of the bedroom scene and felt that the applicant’s account did not give rise to a reasonable doubt about it. Acting reasonably and in accordance with the trial judge’s directions their conclusion on this evidentiary contest could not sensibly have been affected by any view of whether the applicant was truthful in saying that C2 told him earlier in the evening that she was bisexual rather than lesbian.

11. [199]

    Another example of inconsequential subject matter is the seventh impugned passage. The question whether he did or did not ask to ejaculate inside C2 and whether either or both of them had an orgasm, in each case after he had commenced penile-vaginal penetration, could have little impact upon the critical question of whether the applicant knew that C2 did not consent.

12. [200]

    For illustrative purposes one may contrast the relative immateriality of the matters that counsel did not put to the complainants in the present case with the basis of the prejudicial cross-examination of the accused in Picker v R. In that case the matters that had not been put were central to the issue of consent, being the complainant’s conduct toward the accused and her conversation with him, in her home immediately before sexual intercourse took place. They were the very matters from which the accused said that he came to an understanding that he was invited to engage in sex, just before it occurred. Pointed cross-examination about the failure of counsel to have suggest these details to the complainant when she was in the witness box was incomparably more significant than any of the matters taken up with this applicant in the impugned passages.

13. [201]

    If, contrary to my view, ground 2 should be upheld, I would apply the proviso and dismiss the appeal so far as it rests upon this ground.

Birks comments by the Crown, in general

1. [202]

   The decision whether to cross-examine an accused upon the failure of defence counsel to put some matter to a Crown witness is always thrust upon the prosecutor with very little opportunity to reflect upon whether such questioning should be pursued. If the accused first gives evidence of the relevant matter during examination in chief then the decision must be made by the time cross-examination begins. If a relevant matter is first asserted under cross-examination then the decision must be made while the prosecutor is on his feet. This time pressure perhaps explains why so many appeals have been generated as a result of the Crown ill-advisedly undertaking cross-examination of this kind, notwithstanding the numerous cautions issued by this and other intermediate appellate courts.

2. [203]

   Upon hearing in the accused’s evidence an assertion that was not put to the Crown’s witness, it may in the past have been a reflex of prosecutors to cross-examine towards a Birks comment. By now, 20 years after the decision in R v Birks, it should be an entrenched practice to refrain from doing so until the foundations and implications of such questioning have been carefully considered, possibly during an adjournment or in discussion in the absence of the jury.

3. [204]

   This ground has been gone over so often at intermediate appellate level that, at the defence end of the bar table, counsel should by now be well aware that if the prosecutor does commence to cross-examine the accused regarding failure to put some matter to a Crown witness, action should be taken to avert unfair prejudice. If the fault has really been of counsel, that may be intimated to the prosecutor. If he or she accepts the explanation it would be expected that the implication of recent invention would be expressly disavowed. If it is not accepted by the Crown that fault lay with a defence legal representative, the incidence of fault may nevertheless be proved by the accused calling his or her solicitor to establish what the instructions were: R v Birks at 681E. If the accused does not waive privilege in order to reveal the terms of his or her instructions, the Crown will not have a foundation for asserting recent invention: Llewellyn v R at [138(c)]. If the questioning has progressed to a point where a clear implication of recent invention has arisen, defence counsel would need to seek a direction from the trial judge to explain that the failure to put the relevant matter may have arisen from circumstances other than fabrication and that that the jury should not draw the inference.

4. [205]

   Whilst appeals on this basis would be averted if the Crown should resolve never to cross-examine or to address juries towards a Birks comment, that would remove the discipline upon defence counsel to put their clients’ cases fully to Crown witnesses. It would give free rein to accused persons to fabricate matters that Crown witnesses might have been able to refute. Subject to constraints upon the Crown not splitting its case, the protection against such developments would lie in trial judges granting leave to the Crown, where necessary, to recall in reply any witness who had not had an opportunity to respond to some matter raised for the first time in the accused’s evidence: MWJ v The Queen at [40] (Gummow, Kirby and Callinan JJ)

Ground 3 – incompetence of counsel

1. [206]

   Ground 3 was argued on the basis that defence counsel should have pressed his objection when the first impugned passage of cross-examination occurred and called evidence from his solicitor to establish that the accused had given instructions upon matters that counsel failed to put to the complainants. Evidence was adduced on the appeal to establish the matters about which defence counsel had instructions from his client. It was submitted that counsel should have objected to the Crown making any Birks comment in address and should have asked for a direction to protect the applicant against an unjustifiable inference of recent invention.

2. [207]

   I consider that none of these bases for suggesting dereliction of counsel’s duties has been established because the cross-examination was ineffective and insignificant, for the reasons given in relation to ground 2. I would reject ground 3.

3. [208]

   I would join in the orders proposed by Fullerton J.