Appeal Allowed Due to Admission of Irrelevant Evidence

The Court of Criminal Appeal allowed an appeal due to the admission of irrelevant and prejudicial evidence at trial, which constituted a miscarriage of justice. The appeal was brought by the appellant who argued that the admission of such evidence denied him a fair trial.

Reported Decision: 189 A Crim R [ADDRESS] of Criminal Appeal

CITATION: [NAME] v [NAME] [2008] NSWCCA 231

HEARING DATE(S): 22 September 2008

JUDGMENT DATE: 8 October 2008

JUDGMENT OF: Beazley JA at 1; [NAME] at 97; Price J at 98

1. Appeal allowed; DECISION: 2. Quash the [NAME]'s verdict of conviction given on 5 February 2007; 3. Order that there be a new [NAME].

CATCHWORDS: CRIMINAL LAW – appeal - miscarriage of justice – competence of counsel - failure of counsel to object to irrelevant and prejudicial evidence – evidence that portrayed appellant as violent, sexually predatory and a child molester – failure of counsel to seek direction from [NAME] judge in relation to prejudicial evidence – whether omissions were a tactical decision of defence counsel – failure of [NAME] judge to apply the Evidence Act 1995, s 137 – failure to [NAME] judge to direct [NAME] in respect of irrelevant and prejudicial evidence - denial of fair [NAME] amounted to miscarriage of justice – unsafe and unsatisfactory verdict – new [NAME] ordered

Crimes Act 1900, s 61I LEGISLATION CITED: Criminal Appeal Act 1912, ss 5, 6. Evidence Act 1995, ss 32, 33, 55, 97, 100, 110 Evidence Regulations 2005, cl 5

CATEGORY: Principal judgment

Ali v R [2005] HCA 8; (2005) 214 ALR 1 Chisari v R (No 2) [2006] NSWCCA 325 Mouroufas v R [2007] NSWCCA 58 Nudd v R [2006] HCA 9; 80 ALJR 614; 162 A Crim R 301 CASES CITED : R v Birks (1990) 19 NSWLR 677 R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44 R v Stalder [1981] NSWLR 2 Rolfe v [NAME] [2007] NSWCCA 155; (2007) 173 A Crim R 168 Seymour v [NAME] [2006] NSWCCA 206; 162 A Crim R 576 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

PARTIES: [NAME] (Appellant) [NAME] (Respondent)

FILE NUMBER(S): CCA 2007/2917

COUNSEL: [redacted] [NAME] ([NAME])

SOLICITORS: [redacted] [NAME] ([NAME])

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/71/0056

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

LOWER COURT DATE OF DECISION: 23 March 2007

IN THE COURT OF CRIMINAL APPEAL CCA 2007/2917

BEAZLEY JA [NAME] J

8 October 2008 [NAME] v [NAME]

The appellant was convicted by a [NAME] of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (maximum penalty 14 years imprisonment). The appellant was sentenced to a total of 3 years imprisonment, comprising a non-parole period of 2 years.

The appellant alleged there had been a miscarriage of justice, based on the failure of his solicitor to object to irrelevant and prejudicial evidence, tendency or coincidence evidence, and evidence of bad character, or seek directions from the [NAME] judge in respect of this evidence. Further, the appellant alleged that the [NAME] judge had failed to apply the mandatory provisions of the Evidence Act, s 137. He also alleged that his conviction was unsafe and unsatisfactory.

In allowing the appeal:

Held per Beazley JA ([NAME] JJ agreeing)

1. The incompetence of counsel at [NAME], of itself, will not attract appellate intervention. The question is whether there has been a miscarriage of justice: [39]-[58]. R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Ali v R [2005] HCA 8; (2005) 214 ALR 1; Nudd v R [2006] HCA 9; 80 ALJR 614; 162 A Crim R 301 (all applied); Seymour v [NAME] [2006] NSWCCA 206; 162 A Crim R 576; Mouroufas v R [2007] NSWCCA 58; Rolfe v [NAME] [2007] NSWCCA 155; (2007) 173 A Crim R 168 (all referred to).

2. The failure of counsel to object to irrelevant and prejudicial evidence, leaving the [NAME] with evidence before them that the appellant was violent, sexually predatory and a child molester, amounted to a miscarriage of justice: [60]-[62], [64]-[69], [81]-[83]. TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Ali v R [2005] HCA 8; (2005) 214 ALR 1; Nudd v R [2006] HCA 9; 80 ALJR 614 (all applied).

3. The provisions of the Evidence Act, s 137 are mandatory. The [NAME] judge had an obligation not to admit the evidence in respect of which there was a danger of unfair prejudice to the to the appellant, which outweighed its probative value: [60]-[62], [66]-[69], [82].

R v Le [2002] NSWCCA 186; (2002) 130 A Crim R 44 (applied).

4. The [NAME] judge's wrongful admission of irrelevant and prejudicial evidence, and the failure to give appropriate directions to the [NAME], constituted a miscarriage of justice: [60]-[62], [66]-[69], [82], [83]. TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Ali v R [2005] HCA 8; (2005) 214 ALR 1; Nudd v R [2006] HCA 9; 80 ALJR 614 (all applied).

5. Due to the admission of prejudicial evidence, [NAME] lost a reasonable chance of acquittal. The verdict was thus unsafe and unsatisfactory: [86], [87].

6. The conviction was quashed and a new [NAME] ordered: [87].

In the Court of CRIMINAL APPEAL CCA 2007/2917

BEAZLEY JA [NAME] J

8 October 2008 [NAME] v [NAME] Judgment 1 BEAZLEY JA: The appellant was convicted by a [NAME] of one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment. The appellant was sentenced to a total of 3 years imprisonment, comprising a non-parole period of 2 years, commencing 5 February 2007, the date the [NAME] returned its verdict of guilty, and expiring on 4 February 2009. 2 The appellant appeals against his conviction on the basis that the [NAME] miscarried and that the verdict was unsafe and unsatisfactory. These grounds were complementary and raised the following essential issues:

(A) Whether the [NAME] miscarried, due to: 1. the incompetence of the [NAME] legal representative at [NAME], in regards to his failure (i) to object to evidence that was irrelevant to the charge and prejudicial to [NAME]; (ii) to pursue an objection to the evidence of [NAME]; and (iii) to seek directions from the [NAME] judge in respect of parts of this evidence, or alternatively, a discharge of the [NAME]; 2. the failure of the [NAME] judge to direct the [NAME] to ignore evidence that was irrelevant to the charge and prejudicial to [NAME]; 3. the failure of the [NAME] judge to give the [NAME] an appropriate direction as to the use to which it could put evidence that, shortly after the incident, the appellant said he was going to [NAME]; 4. the wrongful admission by the [NAME] judge of the evidence of [NAME]; 5. the failure of the [NAME] judge to give proper directions to the [NAME] in respect of parts of the transcript of the ERISP that should not have been given to them; and

(B) whether the conviction was unsafe and unsatisfactory, because irrelevant and prejudicial material had been admitted into evidence in circumstances where this was not a strong [NAME] case.

Brief summary of the facts 3 The complainant alleged she was sexually assaulted by the appellant in an apartment to which she had gone with the appellant and the [NAME] friend, [NAME]. The apartment was [NAME]'s residence. The three persons had a drink together in the lounge room. The [NAME] evidence was that at one stage, she excused herself to go to the bathroom, but as she went to do so, the appellant forced her into a small bedroom, pushed her onto the bed and sexually assaulted her. 4 The complainant said she was able to remove herself from the incident by telling the appellant that she needed to go to the toilet. She said she left the bedroom and immediately left the apartment. She said the appellant chased her and grabbed her. She then saw a car coming along the street, which was being driven by [NAME], and in which [NAME] was a passenger. They stopped and [NAME] encouraged her to get into the car with them. The complainant said that in response to a suggestion by [NAME] that the appellant had "put the hard word on her", she complained that the appellant had "done more than that", but did not otherwise specify the details of what had happened. 5 [NAME] then drove the complainant and her daughter to the home of another friend, [NAME]. Contact was made with the [NAME] brother, who came to [NAME]'s and telephoned the police. 6 The appellant and his wife were friends of the complainant, as was [NAME]. The complainant had not previously met [NAME]. 7 The appellant complains that irrelevant and prejudicial evidence was admitted at the [NAME] due to the incompetence of his solicitor in failing to object to the admission of the evidence. He further complains that the [NAME] judge then failed to give directions to the [NAME] to ignore that evidence. He contends that he was thereby denied a fair [NAME]. It followed, on his submission that there was a miscarriage of justice and the verdict was unsafe and unsatisfactory: see Criminal Appeal Act 1912, s 6.

Irrelevant and prejudicial evidence 8 The appellant identified the following evidence (being the emphasised portions of the material below) as being irrelevant and prejudicial.

(a)(i) 9 The complainant said that after she had left [NAME]'s unit, she had run about half a block, when the appellant had caught up with her and started walking her back towards the unit. At this point, the complainant saw a car which she noticed was being driven by [NAME], in which [NAME] was a passenger. The complainant said that her daughter got out of the car and said, "Mum are you alright?", to which the complainant said, "No I'm not". Counsel for the [NAME] asked the complainant whether [NAME] said anything to her. The complainant replied: "[NAME] looked over the back to, to me, and goes, 'He's put the hard word on you, hasn't he? ' And I said, 'He's done more than that [NAME]'. And she – I started crying and she started crying. And she said, 'It's okay, he's done it before' ."

In cross-examination, the complainant said that [NAME] had stated, " Oh, he's done it before … he said he'll never do it again ". 10 (It should be noted that the [NAME], in the opening address to the [NAME], referred to [NAME]'s proposed evidence that the appellant had "put the hard word on" the complainant.) 11 [NAME] did not object to this evidence. 12 The appellant complains that this evidence was tendency or propensity evidence. No tendency notice was served on [NAME] as required by s 97 of the Evidence Act 1995. It was also submitted that this evidence raised bad character and that [NAME] should have sought that the [NAME] judge direct the [NAME] to ignore this evidence, or give an appropriate direction to prevent its misuse.

(a)(ii) 13 Having given the expanded evidence in cross-examination set out at [9] above, the complainant continued: " And with that [[NAME]'s] out of the car and they're fighting. He's, she's hitting him and he's hitting her and he pushed her to the ground and then he's over the top of, he was actually on top of her --" 14 [NAME] intervened in the [NAME] answer, saying, "I'll just stop you there", and moved to question the complainant as to whether she had given her daughter and [NAME] a detailed account of what had happened in the bedroom. 15 The appellant contends that the evidence of the fight between the appellant and his wife was irrelevant to the proof of the charge and had no probative value. It was submitted it had substantial prejudicial value, in that it portrayed the appellant as being a person of violent disposition and thus of bad character. 16 Apart from the intervention to which I have referred, [NAME] did not object to this evidence, or ask that it be struck from the record as being non-responsive to his question. Nor did he ask the [NAME] judge for a direction to be given to the [NAME] to ignore the evidence.

(b) 17 [NAME], in her examination in chief, also gave evidence of an altercation between the appellant and his wife. She said: "… [NAME] and [the appellant] ended up having, they were pushing each other around and saying, he, she was swearing at him. He was saying to her, 'I'm finished with you, you're nothing but' – I'm sorry about my language – 'a slut' ".

The daughter's evidence continued: "And [[NAME]] was saying, 'I don't have my grandkids anymore because you're a child molester' ." 18 The appellant complains this evidence was irrelevant and highly prejudicial; that it was evidence of tendency or propensity; that no notice had been given under s 97 of the Evidence Act; and that it was evidence of extreme bad character. He further contends that a direction should have been given by the [NAME] judge to ignore the evidence.

(c) 19 A friend of the complainant, [NAME], gave evidence that very late in the evening of 29 December 2003, [NAME], and the complainant came to her door. She had been with each earlier in the evening. [NAME] said the complainant was crying and told her what had happened between her and the appellant, namely, that the appellant had pushed her into the bedroom and tried to get on top of her. The [NAME] then asked whether [NAME] had given [NAME] any more of an explanation as to what had been going on. [NAME] said "no", because [NAME] was "really angry and upset". [NAME] was asked what made her think that, to which she replied, "Well [[NAME]] was yelling and screaming and they'd just had a fight". (This was a reference to the fight between the appellant and his wife.) 20 The [NAME] asked, "What sort of things was she screaming, what was she saying?" to which [NAME] answered, "That he's nothing – dirty, you know, mongrel and all that". 21 Senior counsel for the appellant said that had complaint been in dispute in this matter, this evidence may have been admissible, as tending to support the evidence of complaint having been made to [NAME]. That is the way the [NAME] judge referred to it in his summing up. In this regard, although complaint was not at issue, [NAME] had suggested to the [NAME] that a complaint had not been made at the earliest opportunity, because the complainant had not given any detail to her daughter or to [NAME] when she had met them in the street within minutes of the incident. The [NAME] judge dealt with this in his summing up by asking the [NAME], rhetorically, whether it would be expected that the complainant would have given full details to [NAME]. He then said: "In any case, things developed quickly. It appears [NAME] gained some understanding of an event that had happened because she immediately attacked her husband ." 22 The appellant contends, however, that the question of complaint was not in dispute. The matter in dispute was the extent of the complaint, which was a matter bearing upon the [NAME] credibility. It was submitted that this aspect of [NAME]'s evidence had little probative value, but was highly prejudicial, raised bad character and, therefore, should have been rejected by the [NAME] judge. Alternatively, [NAME] should have sought that a direction be given to the [NAME] to ignore the evidence.

(d)(i) 23 The next complaint relates to evidence given by the [NAME] brother, [NAME]. [NAME] gave evidence that [NAME] telephoned him and said something to the effect that the complainant wanted him to go and see her as, "someone tried to rape her and they grabbed her by the throat". After receiving this telephone call, [NAME] went to [NAME]'s place, where he understood the complainant, [NAME] and [NAME] to be. He said that whilst he was there, the complainant told him that the appellant tried to rape her and that the other person present in the unit ([NAME]) had a hammer beside the bed with which he threatened her. The complainant told him that when she attempted to leave, "two other blokes tried to chase her to help catch her". 24 The appellant submitted this evidence was both irrelevant and highly prejudicial. It should have been objected to. Alternatively, [NAME] should have sought that a direction be given to the [NAME] to ignore the evidence.

(d)(ii) 25 [NAME] also gave evidence that about an hour and a half after he had returned home, the appellant arrived and told him that he was going to "WA" ([NAME]) and said, "Thanks for being my friend, catch you later". 26 It was submitted that the comment by the appellant that he was going to [NAME] was irrelevant, as it was not relied upon by the [NAME] as evidence of flight or an intention to flee. It was submitted that in any event, that evidence would not have been properly admissible on that basis and [NAME] should have sought that the [NAME] judge direct the [NAME] either to ignore the evidence, or as to the use to which the evidence could be put.

(e) 27 The [NAME], in his opening to the [NAME], stated the complainant had seen a claw hammer in the bedroom where the assault took place. In her evidence, the complainant said that when she was in the room she was scared, knowing there was another person in the lounge room and not knowing whether they had planned to assault her. The complainant said she was "thinking there's a hammer there sitting beside the bed". She said she did not know whether to scream and she did not know why the hammer was there. She said that "just heaps of stuff was going through my head". 28 [NAME] gave evidence that the hammer was his and that it was either on the bedside table or on the bed. He said he had the hammer to do running repairs on the doors in the apartment. He explained that he used to have to tap all the "pins" down (by which I understand him to mean the pins within the hinges of the door), because they popped up frequently. He said he assumed the hammer was in the bedroom because that was the last room that he had used it in. 29 There was no evidence that the appellant was aware of the presence of the hammer. He contends this evidence was irrelevant and in any event, its prejudicial value exceeded any probative value, which, on the [NAME] argument was nil. The appellant contended that his solicitor should have sought that the [NAME] judge give a direction to the [NAME] that this evidence be ignored, or at the least that there be a direction so as to ensure that this evidence not be misused.

[NAME]'s response to the admission of the above evidence 30 [NAME] counsel on the appeal conceded that most of the above evidence was irrelevant. He also accepted that it was possibly prejudicial. He submitted, however, that it cannot be known what tactical decisions are ever taken at [NAME] and it was possible that objection might not have been taken to the evidence for tactical reasons. He suggested [NAME] may have decided it was preferable for all of the evidence referred to above, which on its face was prejudicial, to go before the [NAME], so as to establish a case that the [NAME] version of events that night was improbable. 31 It was submitted that this was the likely tactical approach that had been taken, when regard was had to [NAME]'s final address to the [NAME]. In that address, [NAME] had drawn the [NAME]'s attention to the significant differences between the evidence of the various witnesses. When [NAME], the [NAME] brother, was told of the assault, his attitude was that the complainant should sort it out herself. 32 [NAME] stated to the [NAME] that commonsense would dictate that if something of that nature had happened to one's sister, that would not be the attitude a brother would take. On the contrary, he would do something about it, whereas [NAME] "did nothing". (That statement was not accurate, as [NAME] rang the police). [NAME] then referred to the evidence set out at (d)(ii) above, where [NAME] said the appellant had called to see him, to say he was going to [NAME]. The solicitor said to the [NAME] (continuing the error he had already made as to the brother doing "nothing"): "So [the appellant] goes around and sees [[NAME]] and once again what happens, nothing, doesn't do anything, doesn't ring the police, doesn't confront him, nothing. I mean that – if we accept his evidence you'd have to have some concerns. Obviously he wasn't there but the other important point is that if the [[NAME]] guilty, and if the [appellant] has done it, why is he going to go around and say goodbye to the brother of the alleged victim about an hour-and-a-half after it's happened, very difficult to accept." 33 [NAME] counsel suggested that, overall, [NAME] might not have objected to the evidence of which complaint is made, because he was seeking to gain a sympathy vote from the [NAME] in response to the somewhat vicious attacks on the [NAME] character in the evidence. In this regard, the appellant was portrayed as a man who was unfaithful to his wife, had a history of "putting the hard word on" women, that is, that he was sexually predatory; that he was violent towards his wife; and was a paedophile. He submitted it was likely that [NAME] had made such a tactical decision, given the reliance upon the evidence of the [NAME] brother that the appellant had told him he was going to [NAME]. 34 [NAME] counsel also pointed out that the only evidence of which complaint is now made, that was not contained in the brief of evidence, was the evidence of [NAME] that [NAME] had called the appellant a "dirty … mongrel". It was likely, therefore, that as [NAME] had advance notice of the remainder of the evidence, he was not taken by surprise. It could be inferred, therefore, that he had taken a decision not to object to it. In short, this could be seen as part of [NAME]'s tactical approach to the conduct of the case.

Principles governing a fair [NAME] in the context of the competency of an [NAME] person's legal representation 35 Appeals against conviction are provided for by s 5 of the Criminal Appeal Act. Section 6(1) provides that on an appeal against conviction under s 5(1), the court shall allow the appeal "if it is of opinion that the verdict of the [NAME] should be set aside … on any … ground whatsoever [where] there was a miscarriage of justice". Section 6(1) is subject to the proviso that even if the points raised by the appeal are decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. This is commonly referred to as 'the proviso'. 36 The precepts that only relevant evidence is admissible; that tendency evidence is inadmissible unless notice is given; that evidence of bad character is only admissible in well recognised circumstances; and that the court must refuse to admit evidence where the danger of unfair prejudice outweighs its probative value, are fundamental to a fair [NAME]. The [NAME] overall contention on the appeal is that he was deprived of that fundamental right. 37 This contention raised two principal challenges to the sustainability of the verdict against him. First, the [NAME] complains that his legal representative at [NAME] should have objected to the material set out in (a)-(e) above, or should have sought directions from the [NAME] judge in respect of this evidence, that the [NAME] ignore the evidence and/or seek directions to prevent the evidence being misused. It was submitted that his failure to do so demonstrated a high level of incompetence, such that the [NAME] miscarried. 38 Secondly, the appellant contends that the [NAME] judge failed to properly deal with the evidence in the [NAME], either by rejecting the evidence or, alternatively, by failing to give the [NAME] appropriate directions to disregard the evidence of which complaint is made. 39 A cardinal principle of the adversary system of the legal process under which criminal trials are conducted is that, as a general rule, parties are bound by the manner in which they conduct those proceedings. This principle includes the manner in which the proceedings are conducted by a party's legal representative. In R v Birks (1990) 19 NSWLR 677, [NAME] pointed out, at 683: "As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted … The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case." 40 Importantly for present purposes, his Honour observed, at 684, that it was well settled that the incompetence of counsel at [NAME], of itself, will not attract appellate intervention. Nonetheless, the courts had always acknowledged the existence of a power and duty to quash a conviction in some cases. His Honour stated, at 685, that the relevant principles that applied where it was established that [NAME] person's legal representation at [NAME] was incompetent were: "1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an [NAME] person is bound by the way the [NAME] is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a [NAME], perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 41 Senior counsel submitted that these principles have been consistently applied, save that, there is no necessity for an [NAME] person to establish that his legal representative's incompetence was properly characterised as "flagrant". However, as will become apparent, the question is not whether conduct is '"flagrant". Rather, the question is whether there has been a miscarriage of justice. 42 In TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [NAME], at [31], stated that the question is whether some act or omission in the [NAME] resulted in a miscarriage of justice. [NAME], at [74] ff, examined the circumstances in which it could be said there was a miscarriage of justice by reason of counsel's conduct and, in particular, the standard for determining whether counsel's conduct constituted a material irregularity. His Honour stated that whatever description is given to counsel's conduct, the question was whether the act or omission of counsel has resulted in an unfair [NAME]. 43 [NAME] stated, at [76], that if an [NAME] person has been deprived of a fair [NAME] according to law, that constitutes a miscarriage of justice. His Honour concluded in this regard that where a [NAME] had been unfair, [NAME] should not have to show that counsel's conduct might have affected the result, because no matter how strong the prosecution case appears to be, "an [NAME] person is entitled to the [NAME] that the law requires". His Honour explained however, at [77], that in probably the majority of cases, even if the conduct of counsel is irregular, that will not necessarily deprive [NAME] person of a fair [NAME]: "Not every error makes the [NAME] unfair". However, he noted that: "… a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the [NAME] has resulted in the conviction of an [NAME] person: see Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 516." (Emphasis added) 44 In discussing what standard was to be applied in determining whether counsel's conduct was a material irregularity, [NAME] said, at [79]: "The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, 'whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue': R v Scott (1996) 137 ALR 347 at 362. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the [NAME]? Second, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the [NAME] as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel.

Accordingly, 'it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence': R v Birks (1990) 19 NSWLR 677 at 685. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the [NAME]." 45 At [80], his Honour posed the question as to the circumstances in which an appellant would be able to discharge what his Honour described as "the heavy burden of establishing that counsel's conduct constituted a material irregularity amounting to a miscarriage of justice". [NAME] considered that "flagrant incompetence" was a likely circumstance in establishing a material irregularity such as to provide the stepping stone to a finding of a miscarriage of justice. It will not be sufficient to show that forensic decisions were made in respect of which competent counsel would have differing views as to their suitability: see [81]. 46 In Ali v R [2005] HCA 8; (2005) 214 ALR 1 the appellant appealed against his conviction on the basis that there had been a miscarriage of justice in that he was not tried fairly because of the incompetence of [NAME] counsel. [NAME] (with whose reasons [NAME] agreed in a separate judgment) noted, at [99], that many decisions made in the course of a [NAME], including tactical decisions, are often made hurriedly or intuitively. Other difficult decisions often needed to be made as a [NAME] unfolded. Their Honours stated that it was in the light of such matters that an evaluation had to be made as to whether: "… the conduct [of [NAME] counsel] produced a miscarriage of justice, that is, whether it deprived [NAME] of a chance of acquittal that was fairly open. As [NAME] in [NAME] v The Queen said: '[W]hether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived [NAME] of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open. One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test.'" 47 Their Honours concluded, at [100], that it had not been demonstrated that any conduct on the part of counsel had deprived [NAME] of a fair chance of acquittal. 48 Hayne J (with whom [NAME] agreed) stated, at [23], that the fact that counsel could have taken an objection to evidence does not demonstrate either that counsel was incompetent or that there had been a miscarriage of justice. Rather, the question was whether counsel should have objected. His Honour adverted, at [110], to his conclusion in [NAME] that the question of miscarriage does not depend upon a factual inquiry as to why counsel acted in a particular way. He explained, at [25]: "Rather, the question is whether there could be a reasonable explanation for the course that was adopted at [NAME]. If there could be such an explanation, it follows from the fundamental nature of a criminal [NAME] as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred." (Citations omitted)

Then, importantly, his Honour stated, at [26]: "… when considering whether a failure to object to evidence has brought about a miscarriage, it is necessary to consider the effect of the evidence which it is said [NAME] counsel could have had adduced in a different form or could have prevented being led." 49 In Nudd v R [2006] HCA 9; 80 ALJR 614; 162 A Crim R 301, [NAME], at [7], explained the concept of miscarriage of justice in these terms: "The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal [NAME] is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair [NAME]." (Emphasis added) 50 His Honour observed, at [8], that where it is claimed that an appellant has not had a fair [NAME], then the court is primarily concerned with "what happened at, or in relation to, the [NAME]", rather than why it happened. Thus: "… where the conduct of counsel, as a participant in the [NAME] process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred."

In other words, it is the " fairness of the process that is in question, not the wisdom of counsel ": [9]. [NAME] reiterated the general rule that counsel's decisions bind the client. His Honour stressed the nature of the adversarial system and observed that the fairness of the process was to be judged in that light.

Accordingly, a complaint that counsel's conduct resulted in an unfair [NAME], is considered, at least in most cases, by reference to " an objective standard ". 51 In [NAME], it was accepted that there could be rare cases in which counsel's misbehaviour or ineptitude was so extreme as to constitute a denial of due process. [NAME] adopted the two examples given by [NAME] in [NAME], namely, where for no valid reason, counsel failed to cross-examine a material witness, or did not address the [NAME]. [NAME] noted that he understood [NAME] to be referring to cases where there was no rational explanation for counsel's decision, not merely to a case where an appellate court might consider it had been unwise for counsel to adopt a particular course. 52 [NAME] considered the case against the appellant in [NAME] to be so overwhelming, that there could not have been any real doubt as to the [NAME] guilt. His Honour concluded, at [20], that there was no failure of process that departed from the essential requirements of a fair [NAME]. 53 [NAME] JJ also emphasised that the question was whether or not there had been a miscarriage of justice and said that it was important for a court not to be distracted by questions of whether or not [NAME] counsel's conduct was appropriately described as, for example, incompetent with or without some emphatic term such as "flagrantly". Their Honours stated, at [24]: Alleging that [NAME] counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the [NAME]: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at 134 [31] per [NAME], of whether there was a material irregularity in the [NAME]: at 149-150 [79] per [NAME], and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the [NAME]: at 135 [33] per [NAME], 149 [79] per [NAME], 157 [101] per [NAME], 157 [104] per Hayne J." 54 [NAME] considered there were cases where it was not necessary to prove that the outcome would have been different, but for the incompetence of counsel. His Honour concluded, at [100], that there were rare cases where legal representation may have been of such a quality, either because there may have been misbehaviour, errors or incompetence in the legal representation of an [NAME] at [NAME] that was so egregious, frequent or obvious as to amount to a miscarriage of justice. His Honour observed that "The 'proviso' postulates upholding the verdict at the conclusion of a [NAME] that has met the minimum standards required for a fair [NAME]. It does not envisage the affront to the appearance of justice of upholding orders that have followed a proceeding that did not amount, in law, to a proper [NAME] at all …" 55 [NAME] were of the opinion that on any assessment, whether subjective or objective, counsel's conduct in that case was incompetent to a serious degree. Nonetheless, their Honours concluded, at [162], that the appellant was not deprived of a chance of acquittal, because the [NAME] case against him was, effectively, unanswerable. 56 There are numerous other cases dealing with the incompetence of legal representation. I will refer only to Seymour v [NAME] [2006] NSWCCA 206; 162 A Crim R 576 where Hunt AJA (Simpson and Rothman JJ agreeing) said: "[20] It is, however, important to note that such a ground of appeal neither requires nor permits an inquiry into the competence of the counsel in question; what must be established is the objective fact that there was a miscarriage of justice as a result of counsel's conduct, in the sense that there has been a loss of a chance of acquittal which was fairly open to [NAME]: [NAME] v The Queen at [13], [16]–[17], [79], [83], [107]; [NAME] v The Queen at [7], [12], [18], [38], [100]; [NAME] v The Queen at [2], [8]–[12], [24]–[25], [62], [64]–[68], [81], [151], [157]. An appellant carries a heavy burden: [NAME] v Miletic [1977] 1 VR 593 at 597 (cited by [NAME] in [NAME] v The Queen at [74]).

[21] Relevant to the existence of a miscarriage of justice in the particular [NAME] are the issues of whether the conduct of counsel represented a legitimate choice a competent counsel could fairly make in the circumstances of that [NAME] and whether, viewed objectively, it was a rational tactical decision in the particular forensic situation in which it was made. When that situation is examined, issues such as the forensic advantage which may have been sought and possible prejudice which may have been caused by counsel's conduct are relevant but not necessarily decisive considerations: [NAME] v The Queen at [16]–[17], [24]–[28], [31], [33], [81]–[85], [95], [97], [106]–[112]; [NAME] v The Queen at [9], [12], [24]–[25], [98]–[99]; [NAME] v The Queen at [9]–[10], [55], [157]–[158]." 57 This summary was adopted by this Court in Mouroufas v R [2007] NSWCCA 58; Rolfe v [NAME] [2007] NSWCCA 155; (2007) 173 A Crim R 168.

Was the evidence admissible and/or prejudicial? 58 There will be no miscarriage of justice if evidence is properly admitted. In this case it was conceded that the evidence of which complaint is made was not relevant.

Accordingly, it was not admissible. However, as is apparent from the foregoing that is not the test for determining whether there has been a miscarriage of justice. Rather, it is necessary to consider what effect the wrongly admitted evidence, (or other error at [NAME]) had on the outcome of the [NAME]. 59 In this case, the appellant contends that the evidence of which he complains falls into one or more of the following categories: evidence that was irrelevant; evidence that was prejudicial; tendency or coincidence evidence; and evidence of bad character. 60 As to (a)(i): The evidence that [NAME], said to the complainant, "He's put the hard word on you, hasn't he?" and "It's okay, he's done it before" was prejudicial. Unless it was relied upon as tendency evidence, it was irrelevant and was therefore inadmissible: Evidence Act, s 55. Even if some basis of relevance could be found (other than as tendency or propensity evidence) the evidence was prejudicial. The [NAME] judge was under an obligation to refuse to admit the evidence, if its probative value was outweighed by the danger of unfair prejudice to the defendant: [redacted] "… the terms of [s 137] are mandatory. They must be complied with whether or not a party who might gain from their invocation actually invokes them. It is notable that Pt 3.11 (in which s 137 appears) … [is] not listed as among the provisions which the court may, with the parties' consent, dispense with: s 190." 61 In my opinion, this evidence fell into that category of evidence that should have been excluded under s 137. It was evidence that characterised the appellant as a sexual predator. As such, it was evidence of bad character and was the type of evidence that could and most likely would have influenced the [NAME]'s determination in circumstances where the case depended upon the credibility of the complainant, to more readily accept her evidence. 62 The only possible relevance of this evidence was as tendency or propensity evidence. However, notice had not been served on [NAME] of the intention to use the evidence as tendency or propensity evidence: Evidence Act, s 97; Evidence Regulation 2005, cl 5. Section 97 provides that such evidence is not admissible in the absence of notice, unless the court dispenses with the notice requirements: Evidence Act, s 100. There was no such dispensation. 63 I deal separately with the admission of evidence of bad character below. 64 As to (a)(ii) and (c): The evidence of the fight between the appellant and his wife was not relevant. It was not argued that it was part of the res gestae. It was evidence of bad character because it indicated that the appellant was prepared to be violent towards women and was thus prejudicial. The prejudicial value of this evidence became more apparent during the [NAME], when the complainant expanded upon the details of the assault, stating that the appellant "was just like an animal"; he "was pulling my face, my hair"; he was "pulling me by the hair"; and that he "pulled me down by the hair". 65 No previous complaint had been made that the appellant had been pulling the [NAME] hair and the description of him being "like an animal" had not been given before the [NAME]. It was possible, indeed likely, that the [NAME] would use this evidence of bad character as support for the [NAME] evidence that the appellant had been violent towards her, which, on her account, occurred during the course of the sexual assault. The [NAME] was likely, therefore, to have treated the evidence of bad character as directly supporting the [NAME] evidence of the sexual assault. 66 As to (b): The evidence given by [NAME], in which she stated that [NAME] had said to [NAME], "I don't have my grandkids anymore because you're a child molester", was highly prejudicial. It was not relevant. Even if arguably relevant, it had no or little probative value and the [NAME] judge was required to reject it given its highly prejudicial nature: Evidence Act, s 137. 67 It was also evidence of extreme bad character. Stated in general terms, the evidence of the bad character of an [NAME] person is not relevant to the guilt of [NAME] of the particular crime with which that person is charged. The prosecution may only raise the bad character of [NAME] to negate evidence that [NAME] person adduces of good character: Evidence Act, s 110. 68 In R v Stalder [1981] NSWLR 2, Street CJ (Begg and Yeldham JJ agreeing), considered the limitations on the admissibility of rebuttal evidence as to bad character by the [NAME], in accordance with s 412 of the Crimes Act (see now s 110 of the Evidence Act). His Honour stated, at 15: "These prescriptions of the effect and scope of character evidence do not override the deeply rooted common law principle precluding the [NAME] from calling evidence of bad character solely for the purpose of seeking to establish affirmatively as part of its case in chief that [NAME] is a person of bad character and hence could be regarded as more likely to have committed the crime with which he is charged."

Later, at 18, his Honour stated: "The section has … been from the inception of its precursor in 1876 construed with due regard to the common law principle denying to the [NAME] freedom to call evidence of bad character to establish the likelihood of guilt … This basic principle of the common law is also to be found in the restriction placed upon the legitimate use of evidence of bad character called in rebuttal of evidence of good character … The [NAME] is entitled to take up this issue and to attempt to negate it by evidence of bad character. The [NAME] is not, however, entitled to assert a counter proposition of likelihood of guilt. These considerations underlie significantly both the desirability of juries being carefully instructed upon the legitimate use which can be made of the rebutting evidence of bad character and the approach to be taken by a [NAME] judge in ruling upon the discretionary objection based upon unduly prejudicial significance of evidence of bad character." 69 As I have said, this was evidence of extreme bad character, the prejudicial value of which was immense. It had had no probative value. The [NAME] judge was obliged to reject the evidence, regardless of the failure of [NAME] to object to it. 70 As to (d)(i): The evidence of the [NAME] brother of the telephone call from [NAME] was also evidence of violence, although it should be noted that the complainant did not give evidence of being "grabbed by the throat". Nor did [NAME] give evidence that she had made any such statement. The brother's evidence was hearsay and was evidence of bad character. If it was intended to be relied upon as proof of complaint, then it was incumbent upon the [NAME] judge to determine, pursuant to s 137, whether its probative value was outweighed by its prejudicial value. 71 It is possible that [NAME] did not object to this evidence, preferring to take a tactical stance that this was another aspect of the evidence that was inconsistent and embellished, so as to support a submission to the [NAME] that the [NAME] witnesses should not be believed. However, the solicitor made no reference to this evidence in his address to the [NAME], notwithstanding that he emphasised the inconsistencies in other parts of the evidence. 72 Although this was evidence of bad character, it would not, in my opinion, have been sufficient to establish a miscarriage of justice. Further, I am of the opinion that the failure to object to this evidence is not the makeweight that establishes that there was, overall, a miscarriage of justice.

Accordingly, I would leave this particular complaint to one side in determining whether there has been a miscarriage of justice. 73 As to (d)(ii): The evidence that the appellant went around to the [NAME] brother's house some hours after the incident and said he was going to [NAME] was not relied upon by the [NAME] as evidence of flight or of an intention to flee. Rather, it was merely relied upon as evidence of what occurred later on some hours after the incident. In my opinion, unless it was relied upon as evidence of flight, it was irrelevant and inadmissible. 74 The [NAME] conceded as much in its submissions on the appeal. However, [NAME], in his address to the [NAME], relied upon the evidence to portray the [NAME] version of events as improbable. The [NAME] thus asserts that [NAME]'s failure to object to this evidence should be seen as part of the tactical decisions made by him at [NAME]. 75 In my opinion, this is not only a reasonable assumption, it is significantly supported by the manner in which [NAME] referred to this evidence in his address to the [NAME]. In any event, I am of the opinion that this was evidence about which different [NAME] advocates could take differing positions.

Accordingly, there was no miscarriage of justice in the admission of this evidence. Rather, it is one matter in respect of which the appellant is bound by the conduct of his solicitor, in accordance with the principles discussed above. 76 As to (e): The other evidence of which complaint is made is the evidence of the hammer in the room. The complaint made by the appellant, that his Honour failed to deal with the innocent explanation as to why there was a hammer in the bedroom, is not made out. His Honour summarised [NAME]'s evidence on this matter. However, there is still a question whether the evidence should not have been admitted, pursuant to the operation of s 137. Given that [NAME]'s evidence was before the [NAME], I would not have necessarily concluded that this evidence needed to be excluded under s 137.

Was there a miscarriage of justice? 77 Nothing is known about the [NAME] legal representative at [NAME] other than that he was a country solicitor. Nor does the Court have any understanding as to why he did not object to the challenged evidence. There was no evidence before the Court from the solicitor or the appellant as to the running of the [NAME]. 78 However, it is apparent from the solicitor's address to the [NAME] that he had made tactical decisions both during the course of his [NAME] and in his address to the [NAME]. One tactical decision that he made, that is obvious from the transcript of his address to the [NAME], was a decision not to cross-examine the [NAME] brother. [NAME] referred to this in his address to the [NAME] when, having given an overview of the evidence to that point, he said: "Now so we're now back at [[NAME]'s] and that I think of all the evidence that we've heard … and this was I think that some of you looked somewhat aghast when [[NAME]] being the brother of [the complainant] gave evidence and he wasn't cross-examined by me because the other witnesses had been cross-examined, he gave very short evidence and he wasn't cross-examined by me at all." (Emphasis added) 79 The other tactical decision that is apparent from his address to the [NAME], was that [NAME] relied upon the fact the [NAME] version of events had expanded, from the time [NAME] and her own daughter stopped the car in the street, to the version of the complaint that she gave to the police. [NAME] emphasised this to the [NAME], before dealing with the evidence of the [NAME] brother. Overall, the picture that emerges from the address to the [NAME] is that the solicitor was implying that there was some hysteria on the part of the female witnesses. 80 It is also apparent from the manner in which the solicitor dealt with the brother's evidence, that he relied on it to demonstrate that nothing criminal had happened between the appellant and the complainant. It is probable, therefore, as I have already indicated, that a tactical decision was made in relation to this evidence. The appellant should be bound by that decision because its admission did not result in any miscarriage of justice. 81 However, the same cannot be said in respect of the evidence in (a)(i); (a)(ii); (b); and (c). This evidence was prejudicial, as I have explained. The consequence of the admission of that evidence was that the [NAME] was left with evidence that the appellant was a person of a violent disposition towards women, with a history (albeit non-specific) of "putting the hard word on" women, and who was a "paedophile", which meant his wife could not see her grandchildren. These aspects of the evidence should have been objected to by [NAME]. 82 Further, the [NAME] judge had an obligation not to admit the evidence that I have identified in respect of which there was a danger of unfair prejudice to the appellant, which outweighed its probative value, if any. The [NAME] judge failed to undertake the mandatory task required by s 137 not to admit this evidence. As a result of that failure in the [NAME] process, prejudicial evidence was before the [NAME] and was likely to be used by them in determining the guilt of the appellant. 83 Accordingly, I consider that there was a miscarriage of justice in that evidence being adduced.

Was the verdict unsafe and unsatisfactory? 84 The appellant contends that the case against him was not so strong that it was likely he would have been convicted in any event. He contends, therefore, that he lost a reasonable chance of acquittal. 85 The [NAME] case required the acceptance of the [NAME] evidence. Her evidence was unsupported by the witness [NAME]. Although there was evidence of immediate complaint, that complaint was responsive to a question asked by [NAME] and the complaint was not made in any detail. The detail did not emerge until the complainant spoke to the police. Even then, the complainant expanded upon the extent of the violence used in her evidence. 86 There were significant inconsistencies in the evidence of the other witnesses. Some of these have been adverted to above. It is, of course, usual for evidence to vary from witness to witness. People observe and remember events and conversations in differing degrees of detail. Part of the dynamics of a [NAME] is the working out of whether evidence is so different as to not be credible. In this case, however, the effect of the inadmissible evidence was that the [NAME] were left with the portrayal of a man who had violent and sexually predatory tendencies and was a child molester. It is highly likely that this evidence would have influenced the [NAME]'s determination as to whether they believed the complainant. It follows, in my opinion, there was a high likelihood that the inadmissible evidence affected the outcome of the [NAME]. 87 Having regard to the prejudicial nature of the evidence that was admitted, the Court cannot be satisfied that no substantial miscarriage of justice has occurred. The appeal, therefore, should be allowed, the conviction quashed and a new [NAME] ordered.

Other grounds of appeal 88 There were two other grounds of appeal with which I should deal briefly. The first was a complaint that [NAME] should not have been permitted to read from a statement that he had made on 7 January 2004. The [NAME] sought leave that [NAME] refresh his memory in accordance with s 32 of the Evidence Act in regards to what was in his statement. The statement had been prepared from the notes he had taken when he interviewed the complainant at [NAME]'s home in the early hours of the morning of 30 December 2003. He said he did not take down the exact conversation he had with the complainant at that time: "It was just a rough version of the incident". His notebook was not available and [NAME] indicated that in that circumstance, "it was a bit difficult", as he could not compare the difference between what was in the notebook and what was in the statements. 89 The [NAME] judge indicated that the statement was admissible under s 32 of the Evidence Act and granted leave pursuant to this section. This, in fact, was an error. The relevant section is s 33, which makes specific provision for evidence given by a police officer and provides that despite the constraints on a witness reviving a memory by the use of an earlier produced document pursuant to s 32, "a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer". The evidence may only be given if the statement was made "at the time of or soon after the occurrence of the events to which it refers": s 33(2)(a). 90 Senior counsel for the appellant did not contend that a statement made about eight days after the incident was not sufficiently contemporaneous so as to fall outside s 33(2)(a). The submission on this particular challenge was not clear. It seems that the way the matter was eventually put is that it was a hearsay statement. However, the evidence was admitted as evidence of complaint and no error has been demonstrated in allowing the police officer to read from the statement. It was within the [NAME] judge's discretion to allow [NAME] to read from the statement: see Chisari v R (No 2) [2006] NSWCCA 325 per Grove J (with whom [NAME] and [NAME] agreed), at [28]-[30]. 91 The second complaint related to an irregularity at [NAME], when a portion of a transcript of the [NAME], which was irrelevant and in respect of which the taped version was not played to the [NAME], was provided to the [NAME]. The [NAME] had been given the transcript to enable them to follow the tape recording as it was being played, if they so wished. During the playing of the tape, a decision was made not to play it in its entirety. However, the [NAME] already had the transcript of the whole tape. 92 The [NAME] was asked to return the transcript so that the irrelevant material could be removed. The appellant submits that [NAME] failed to seek a discharge of the [NAME] or directions from the [NAME] judge to the [NAME] regarding material not before them. The appellant further submits the [NAME] judge should have directed the [NAME] to put out of their minds anything they may have read in the material that was removed. His Honour did not do so, but simply told the [NAME] that the end of the transcript was missing and a decision had been made not to play the balance of the tape to them because it contained material that was irrelevant and did not take the matter any further. 93 It was submitted that as a consequence of the above matters, [NAME] lost a chance which was fairly open to him of being acquitted. 94 In the portion of the ERISP that was not played to the [NAME], the appellant had been asked questions as to whether he had an argument with his wife and whether there had been a physical altercation; whether he had hit his wife the previous evening; whether he had ever hit his wife in the past; whether he had ever grabbed his wife in a physical manner during an argument; whether he had cheated on his wife over the past 13 years; and whether he had taken any illegal substance the previous evening. 95 In my opinion, some of this material was prejudicial and ought to have been the subject of a direction to the [NAME] that should they have read further than the tape was played, it was not part of the evidence in the [NAME] and they should ignore it. However, having regard to the conclusion I have reached as to the outcome of this appeal, it is not necessary to finally make a decision as to whether that failure of its own would have been sufficient to require a new [NAME]. When it is added into the matters to which I have already referred, it is another aspect of the [NAME] that was unfair and the appellant was deprived of a fair chance of an acquittal. 96 Accordingly, I propose the following orders:

1. Appeal allowed;

2. Quash the [NAME]'s verdict of conviction given on 5 February 2007;

3. Order that there be a new [NAME]. 97 [NAME]: I agree with Beazley JA. 98 PRICE J: I agree with Beazley JA. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.