R v Bisht[2013] QCA 238

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The appellant was charged with raping a woman at a skateboard park in Paddington on or about 3 September 2010 (count 1) and with sexual assault of another young woman on or about 7 November 2010 (count 2).  On 22 October 2012, the prosecution endorsed the indictment that it would not proceed with count 2.  The appellant's jury trial on count 1 commenced the following day.  He was convicted after a five day trial and sentenced to seven years imprisonment.  He was self-represented at trial.  He is an Indian national and the trial proceeded with the assistance of a Hindi interpreter.  The appellant speaks and writes English reasonably fluently although his heavy accent sometimes makes him difficult to understand.  For that reason, the matter was adjourned at its first appeal hearing date to enable him to put in comprehensive written submissions.  He did not ask the Court for an interpreter for his appeal hearing.  He has appealed against his conviction and originally also applied for leave to appeal against his sentence.  At the hearing of the appeal he stated he no longer wished to appeal against his sentence and his sentence application was refused.  In his notice of appeal his sole ground was that the verdict is unreasonable or cannot be supported having regard to the evidence.  He also handed up further written submissions concerning his conviction appeal hearing.

[2] His contentions are, first, that the judge erred in not allowing him to place before the jury a medical report from psychiatrist Dr Julian Boulnois[1] as to the complainant's mental health.  Second, he contends that the prosecution "coached" the principal prosecution witnesses and that a police officer "coached" the complainant.  Third, he contends the prosecution should have led CCTV footage and failed to call relevant witnesses.  He contends that portions of his record of interview with police were wrongly omitted.  Police officer Caulfield, he submits, failed to obtain a statement from police officer Dewever as to her conversations with the complainant.  His principal contention, however, is that the jury should not have believed the complainant, they should have believed him.  She was older and bigger than he so that he could not have had sex with her against her will.  Her injuries could have been caused by chafing rather than forced sexual intercourse.  Her injuries were inconsistent with her evidence. She gave a version of events to police officer Dewever which differed from her evidence at trial.  The judge should have allowed the appellant to lead evidence of the complainant's medical records which demonstrated that she was a prostitute; this was consistent with his evidence at trial.  The jury could not have accepted the complainant's evidence beyond reasonable doubt.  He contends that, as a result, his conviction should be quashed and a re-trial ordered.  He also contends that the appeal record book is an incomplete record of the events at the trial.

[3] On the afternoon before the appeal hearing, the Court had the Senior Deputy Registrar (Appeals) contact the parties and asked them to consider whether the judge's directions to the jury complied with s 21A(8) Evidence Act 1977 (Qld).  At the hearing, the appellant was given leave to amend his notice of appeal by adding a ground of appeal that there was a miscarriage of justice in that the learned trial judge did not comply with the requirements of s 21A(8).

[4] Before directly discussing the appellant's many contentions, it is necessary to summarise the evidence and relevant events preceding and during the trial.

The relevant events preceding and during and the evidence at trial

[5] The indictment was presented in the District Court on 19 January 2012.  The appellant was then self-represented and the court directed that a Hindi interpreter be provided whenever the appellant's appearance was required in court.  When the matter was next mentioned on 17 February 2012, the appellant was legally represented and the matter was listed for trial.

[6] For present purposes, the next relevant event was on 31 July 2012 when the appellant was again legally represented.  The appellant's lawyers had subpoenaed the complainant's medical records and these were produced to the court.[2]  His Honour Judge Shanahan ordered that the complainant be declared a special witness pursuant to s 21A Evidence Act; that she give evidence by closed circuit television; that her evidence be recorded and that the video recording be viewed and heard at the trial instead of direct testimony; and that a support person be present while she gives evidence.  It is uncontentious that the complainant was rightly declared a special witness under s 21A(1)(b) Evidence Act in that, as a result of her mental impairment, she was likely to be disadvantaged as a witness.

[7] On 20 August 2012, the appellant's lawyers were given leave to withdraw.  His Honour Judge Reid declared the complainant a protected witness.  It is uncontentious that she was rightly declared a protected witness within the meaning of that term in s 21M(1)(b) Evidence Act because of her impairment of mind.  As a protected witness, she could only be cross-examined by a legal representative: see s 21M to s 21Q Evidence Act.  Judge Reid also ordered that the appellant be given free legal assistance by Legal Aid Queensland for the complainant's pending cross-examination.

[8] The next relevant event was the pre-recording of the complainant's evidence before His Honour Judge Farr.  The following exchange occurred:

"HIS HONOUR: Now my understanding is that you do not wish to have anyone from the Legal Aid Office represent you in so far as the cross-examination of the complainant today is concerned, is that correct?

DEFENDANT: Yeah.

HIS HONOUR: I also understand that you do not, in any event, wish to cross-examine the complainant?

DEFENDANT: If your Honour - I can do that, I can cross-examine them but I will not take Legal Aid help. Thank you.

HIS HONOUR: I'm sorry, I didn't understand a word.

DEFENDANT: Okay. It's like I can - if you - if Court wants I can cross-examine [the complainant in count 1] and [the complainant in count 2] but if Court does not want I will be - I will be quiet, but I will not take any help from Legal Aid. Thank you.

HIS HONOUR: It's not a question of what the Court wants, Mr Bisht, it's a question of what you want to do. Now do you seek to cross-examine the complainant this morning? Bearing in mind that you are not permitted to do so yourself. The law expressly-----

DEFENDANT: I'm not getting any Legal Aid help.

HIS HONOUR: Just let me finish. The law expressly prohibits a self-represented person facing charges such as you're facing from being able to question a complainant. Now you are not-----

DEFENDANT: But I have some points which doesn't - I have some points which are very effective and if I tell in front of jury, jury might understand those points. For this I don't have to cross-examine protection witnesses.

HIS HONOUR: Well, the position is this, Mr Bisht. You're not permitted to question this witness. That will not happen.

DEFENDANT: Your Honour, I know that."[3]

[9] His Honour went on to explain that if the appellant did not cross-examine the complainant, and he was not permitted to do so without legal representation, he may not be able to give evidence denying the charge and would effectively have no defence.  Despite this, he maintained that he did not want legal aid for the purpose of cross-examining the complainant.

[10] The prosecutor tendered Dr Boulnois' report dated 26 July 2012[4] so that Judge Farr understood why the complainant had been declared a special and then a protected witness.  The report explained that the complainant was suffering from a major and chronic paranoid schizophrenic illness for which she was being treated, unusually both with 600 mg of Clozaril and the anti-psychotic drug Risperdal.  Her delusions and hallucinations regularly tormented her in the form of a single voice which she felt came from Nostradamus, a harbinger of significant doom and gloom.  She would be disadvantaged as a witness and would be likely to suffer severe emotional trauma and would be overwhelmed and intimidated.  The safest way for her to give evidence would be to pre-record it rather than have her give direct testimony.  Dr Boulnois asked the court to show kindness to a severely stricken individual and recommended that an appropriate person be with her whilst she gave her testimony.  He explained that she was more than aware that giving evidence was a serious matter and he felt:

"certain that she would be determined that the evidenced [sic] that she would give, in those well known words 'would be the truth the whole truth and nothing but the truth', indeed she would probably be so over inclusive in her answers that she might never be satisfied that she had been sufficient in the explanations … that she had given."[5]

[11] Dr Boulnois added that she had suffered from a major schizophrenic illness for so long that it would be best to address her as someone "who had barely made [sic] into secondary school."[6]  She would probably be able to give an intelligible account of the event but it would be easy for her to be distracted by receiving too much information too quickly.

[12] The prosecutor asked that the complainant be accompanied by a support person under s 21A(2)(d) to give her emotional support whilst her evidence was pre-recorded.  Judge Farr acceded to that request[7]  and her evidence-in-chief was then pre-recorded.

[13] On 22 October 2012, the appellant's matter was mentioned with a Hindi interpreter before another judge.  The indictment originally charged the appellant with an additional count concerning a different complainant.  As the second complainant did not wish to travel from Sydney, the prosecution endorsed the indictment that it would not proceed on that second count.  The prosecutor informed the judge that police had interviewed the appellant in respect of both complainants.  The appellant had a copy of the original taped interview and a transcript of it.  The prosecutor provided the appellant with a copy of the transcript with the portions relating to the second count highlighted and a disc containing a copy of the interview with the highlighted portions edited out.  The prosecutor intimated that she would have the edited interview played to the jury so that they would not hear anything of the second count.  The appellant did not object to that course.  The judge explained to the appellant that if he did not accept legal aid for the purpose of cross-examining the complainant, she would not be at court for questioning.  The appellant accepted that.[8]

[14] On 23 October 2012, the appellant's jury trial commenced with the assistance of a Hindi interpreter.  The appellant referred to CCTV footage from the 7-11 store in the vicinity of the alleged rape and asked the judge to order the prosecution to produce the complainant's statement to police.  He claimed it would demonstrate she was lying.  The judge refused that application.  His Honour again reminded him that he could have legal aid to cross-examine the complainant.[9]  The jury was empanelled and after the judge explained through the interpreter the trial procedures and dealt with the appellant's queries, the prosecution opened its case and called its witnesses.

[15] After the DVD of her pre-recorded evidence,[10] the judge gave the following direction:

"… it's important that I talk to you a little bit about that process. As you're probably aware, it's more usual for a witness to come into Court and give evidence but sometimes witnesses' evidence is recorded before the trial. It needn't concern you why that was done in this case. The important thing is that you treat that evidence just as if it were evidence given in Court.

And it's important that you understand that you shouldn't draw any inference as to the [appellant's] guilt because of the way the evidence has been presented, and the probative value of the evidence isn't increased or decreased because of the way it was presented. What that means is, it doesn't prove more and it doesn't prove less because it brought to you in this way.

And so also it's important to make sure that you understand that it's not to be given any greater or lesser weight because of the way it was presented to you, and this morning I spoke to you about the witness having been declared a protected witness, which had the consequence, as things have turned out in this case, that she was not cross-examined; that is, defence counsel did not cross-examine her.

And I'll remind you again of this later but no doubt it will be very important to the prosecution case that - well, your assessment of her will be crucial to the - to the prosecution case, and you should keep in mind that it's often an important aid to a jury's understanding as to where the truth lies that a person be cross-examined. As [the complainant] hasn't been cross-examined, you'll have to assess the accuracy of her evidence without the assistance cross-examination might have provided"[11] (my emphasis).

[16] The complainant's evidence was to the following effect.  She ran away from Robina Hospital the day before the alleged offence.  She was sitting at a central Brisbane bus stop some considerable time after 11.00 pm when she met the appellant for the first time.  She was hungry, cold and tired.  He said she could sleep over at his place at Paddington.  She went with him to a 7-11 store where she bought a can of coke.  He touched her around the waist and she felt uncomfortable.

[17] They then went to a service station where the complainant bought some cigarettes.  She asked the attendant to use the toilet but he told her it was out of order.  They made their way past the Caxton Hotel and at the intersection of Hale and Caxton Streets the appellant pushed her into the skateboard park.  He put his jacket on the ground and she sat down.  He then put his hands down her pants, touching her bottom, and then touched her breast under her shirt.  She tried to fend him off but he was strong for someone his size.  He pushed her to the ground and pulled her jeans down to her ankles.  He took off her thongs and put his hand over her eyes saying, "[s]leep."[12]  She said, "[l]eave me alone. Go away."[13]  She did not like him touching her.  He put his penis into her vagina and pushed.  He ejaculated, got up and walked off.  He did not say anything.  She smoked a cigarette before she left the park and flagged down a motorcyclist.  She told him she had been raped by a man who had walked off in the direction of Latrobe Terrace.

[18] When asked by the prosecutor whether the appellant used force before he put his penis in her vagina, she responded: "Yeah, he hurt my thighs up the top.  He was pushing really hard and it really hurt."[14]  He did not use a condom and after intercourse she felt "disgusting" as she "was all wet from him."[15]

[19] The complainant identified to police the service station she entered as the Shell service station in Eagle Terrace, Brisbane.  CCTV footage was obtained from that service station and shown to her during her pre-recorded evidence.  She identified herself and the man who attacked her in the footage.  CCTV footage from near the Caxton Hotel was also tendered.[16]  The complainant was unable to identify to police the 7-11 store she entered.

[20] Mr Harley-Gene Asher gave evidence that at 5.00 am on the morning of the alleged offence at the intersection of Hale and Caxton Streets the complainant told him she had been raped by a man who had walked off towards Latrobe Terrace.  She looked dishevelled and upset although she was not crying.  He called the police.

[21] Police officer Caulfield arranged for uniformed police officers Young and Dewever to attend at Caxton Street and for them to later take the complainant to hospital.  He arranged for another police officer to obtain relevant and available CCTV footage from business premises along Caxton Street in the vicinity of the route taken to the skateboard park by the complainant and her alleged rapist.  The resulting footage from near the Caxton Hotel and the service station was tendered.[17]  In cross-examination, police officer Caulfield said he was unable to obtain footage from any 7-11 store.[18]

[22] Police officer Nicola Dewever spoke to the complainant at Caxton Street with police officer Young.  The complainant told her what happened.  The account was broadly consistent with the complainant's evidence except that the officer recorded her as saying the appellant put his hand over her mouth whereas her evidence was that he put his hand over her eyes.

[23] Police officer Young gave evidence that on 3 September 2010 when he was working a 6.00 am to 2.00 pm shift he was called to an investigation at Caxton Street.  He was asked with whom he was working that day and responded: "I was working with Detective Senior Constable Dale Caulfield at Caxton Street as well as [the complainant]."[19]  He stated that he was told to take the complainant to hospital, which he did.  The appellant did not cross-examine him.

[24] Forensic nursing examiner, Ms Allison De Tina, examined the complainant at 9.30 am on 3 September 2010.  She took swabs from the vagina, vulva and the perianal region.  She found extensive bruising over both inner thighs and scratch abrasions on the left thigh near the buttock.

[25] The appellant asked Ms De Tina if the marks on the complainant's thighs may not be bruises but rather caused by a sweating irritation and scratching.  She reviewed the tendered photographs of the bruising[20] and stated that the marks looked to her like purple bruising.  She did not accept that bruising always followed a particular colour pattern over time and stated that it was very difficult to age bruises.  In re-examination she affirmed that the marks on the inside of the complainant's thighs were bruises which were purple in colour and extensive.

[26] The swabs were subsequently examined for DNA and a profile matching the appellant's was found.

[27] The appellant was interviewed by police on 10 June 2011, nine months after the alleged rape, without the assistance of an interpreter.  He denied having sexual intercourse with a woman in the skateboard park near Caxton Street and claimed that he was not in Brisbane on 3 September 2010.  He told police he did not go to the service station with any girl.  He knew the park as he had lived in the area.  When shown the stills of the CCTV footage at the service station, he agreed it depicted him.

[28] The appellant gave evidence through the interpreter but did not call evidence.  He said that on the evening of the alleged offence he was drinking at the Caxton Hotel.  He had two jugs of beer and two glasses of vodka and was really drunk.  At that time he would often drink and then go to Fortitude Valley where he knew female prostitutes to whom he would give massages.  He was walking in Ann Street and met the complainant.  She asked if he would like to have sex for $100.  He offered her $60 and she agreed.  When he was drunk he made people happy and they would laugh, but she was not laughing.  He asked her where her smile was.  They kissed.  He offered to give her $50 before sex and $10 afterwards.  She said her name was Shiva, an Indian name.  In an area matching the description of the Turbot Street underpass, he said he put down his jacket and they had consensual sex.  She told him to do it quickly or she would get up.  He paid her the outstanding $10 and they walked to a 7-11 store.  He gave her money towards purchasing cigarettes from a service station.  She said she lived on the Gold Coast.  She demanded $100.  He became irritated because he had to start work shortly and was running late.  He denied offering the complainant food or a place to sleep.  He agreed that he went with her to the service station, walked with her past the Caxton Hotel and that they continued on to near the skateboard park.  He was in a hurry and she was walking too slowly.  She needed to go to the bathroom.  He told her to go to the bathroom in the skateboard park.  She went down the stairs into the skateboard park and the appellant left her there and walked home.

[29] After the close of evidence, in the absence of the jury, the appellant told the judge that he wanted "to bring it in front of the jury that [the complainant] has been a professional prostitute before and she has done this thing about rape before."[21]  The judge explained that if that evidence were to have been led it would have to have been done by cross-examining the complainant.  As he did not have legal representation he was unable to cross-examine her.[22]

[30] The judge gave the following directions about the complainant's pre-recorded evidence:

"… the reason it was recorded needn't concern you but you mustn't draw any inference as to the [appellant's] guilt just from the way that the evidence was presented to you and the probative value of the evidence is not increased or decreased because it was pre-recorded and played to you. That is, it doesn't prove any more or any less than evidence presented to you by the witness in Court.

It's not to be given any greater or lesser weight because of the way it was presented to you. In other words, you simply take that evidence in the same way you would take evidence presented to you in Court"[23] (my emphasis).

[31] The judge had the difficult task of explaining to the jury how to deal with the compelling evidence when the complainant had not been cross-examined.  He did so in these terms:

"You also heard the term 'protected witness' a number of times during the trial. [The complainant] was a protected witness, and I've said these things to you before but it's important to repeat them at this stage of the trial.

Every person has a right to conduct his own trial, to represent himself and [the appellant] has elected to do that, and you don't draw any adverse inference against him because he's exercised that right, which every citizen has, but if an offender elects to defend himself, the law prevents him from cross-examining any witness who is a protected witness, and [the complainant] is a protected witness. That she is a protected witness does not, by that fact alone, add to or detract from her credibility or reliability.

As I think [the prosecutor] mentioned to you, that status simply comes about because of the nature of the charge. It doesn't involve any assessment by a Judge of her or anything like that. It's just that the law says where that's the charge and the [appellant] is self-represented, the [appellant] may not personally cross-examine. That would happen in every case of a charge of rape where the [appellant] is self-represented. It involves no judgment either of her or [the appellant] that she is a protected witness.

It simply, though, leads to the fact that she wasn't cross-examined because he did not have a lawyer. He chose not to make an arrangement which was available to cross-examine [the complainant]. Cross-examination tests a witness, whether a witness is truthful and reliable, and it's often an important aid to a jury's assessment as to where the truth lies and you have to assess the accuracy of her evidence without the assistance that cross-examination might have provided.

Her evidence is, you might think, essential to the prosecution case. Indeed your assessment of her reliability and truthfulness will be crucial to the verdict you reach.

Keep in mind that you can't convict unless satisfied beyond reasonable doubt that the evidence upon which the prosecution relies which is primarily her evidence is both truthful and reliable. You mustn't draw any inference against the [appellant] because he has … chosen not to have a lawyer, and as a result of which, the evidence of [the complainant] has not been tested by cross-examination.

On the other hand, [the appellant] gave a detailed account of his interaction with the complainant … . None of it was put to her because she wasn't cross-examined. In other words, she was not asked to comment on whether that was the case. The result is she has not had the opportunity to respond to the suggestion that she, in effect, consented to sexual intercourse in the circumstances that he described.

So, the implication is she made a false complaint of rape, and you don't have the benefit of the evidence that she might have given had she been asked. I don't say that to suggest you should speculate about what she might have said; it's simply the case that she hasn't been cross-examined which means she hasn't been tested but it also means you haven't heard her comment on the defence case."[24]

[32] The judge referred to the inconsistency between, on the one hand, the complainant's evidence to the effect that the appellant put his hand over her eyes and, on the other, her complaint to police officer Dewever that he put his hand over her mouth.  Inconsistencies in a witness's evidence may cause the jury to have doubts about the witness's credibility or reliability.[25]

[33] His Honour then summarised the prosecution and defence cases.  He explained the defence case in this way.  The complainant's voice in the pre-recorded interview was feigned and contrived.  The marks on her legs were consistent with her having scratched a sweaty rash in between the legs rather than a sexual encounter.  Photographs of the complainant's hair and her general appearance[26] were inconsistent with someone having been raped.  Relevant CCTV footage had not been produced and, in particular, the appellant emphasised that there was no CCTV footage from the 7-11 store.  The complainant's conduct depicted on the tendered CCTV footage did not suggest she was frightened of him.  The complainant had a mobile phone on the night of the incident yet police had not produced any evidence of her mobile phone records.  There was no evidence as to whether the toilet at the service station was working.  He asked the jury to consider why she did not call for help from the service station if she was afraid of him.  Her account of the rape was implausible.  He asked why would he have laid out his jacket for her if he was raping her and how he could have left immediately without retrieving the jacket from underneath.  He submitted that she had brought a false complaint in order to get compensation.  The jury would not be satisfied about her reliability and credibility as a witness and would not be satisfied of his guilt beyond reasonable doubt.

[34] At the conclusion of the summing-up in the absence of the jury the appellant asked the judge to place before the jury Dr Boulnois' report[27] to show that the complainant was like "somebody who had barely made [it] into secondary school."[28]  The judge refused the application noting that the evidence was then closed.

Were the guilty verdicts unreasonable?

[35] The first ground of appeal is that the guilty verdict was unsafe and unsatisfactory.  In determining whether a guilty verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence under s 668E Criminal Code 1899 (Qld), this Court must determine whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

[36] The DNA evidence established beyond reasonable doubt that the appellant had penile vaginal sexual intercourse with the complainant at the time of the alleged offence so that, ultimately, the only issue at trial was consent.  This ground of appeal is not made out.  The complainant's evidence, which was unchallenged by cross-examination, was supported by her injuries and her distressed condition.  Her timely complaint boosted her credibility.  By contrast, the appellant initially gave a false account to police.  The jury were well entitled to reject the appellant's evidence as to consent and to accept the complainant's evidence that she did not consent beyond reasonable doubt.

The complaints raised by the appellant in his written and oral submissions

[37] The appellant contended that the appeal record book is not a complete record of the trial.  He has not demonstrated, however, that there are any relevant omissions from the record, let alone that such omissions have somehow resulted in a miscarriage of justice.  This contention is not made out.

[38] He contended that the prosecution should have obtained a statement from police officer Dewever who spoke to the complainant on the morning of the alleged offence.  Material filed by the appellant showed that the prosecution gave the appellant's former lawyers a copy of police officer Dewever's statement on 30 July 2012, prior to the pre-recording of the complainant's evidence.  The appellant did not cross-examine police officer Caulfield about any failure to obtain a timely statement from police officer Dewever.  In any case, police officer Dewever gave evidence in the prosecution case from the notes in her official police notebook of her conversation with the complainant.  The appellant relied at trial on the inconsistency between the complainant's account to police officer Dewever and the complainant's account in her evidence.  The judge specifically highlighted this inconsistency as something the jury should consider in assessing the complainant's credibility.  His Honour also fairly summarised the defence contention about this inconsistency for the jury.  The jury would certainly have considered it.  The inconsistency was not a major one.  It did not require the jury to reject the complainant's evidence.  The appellant has not demonstrated that this inconsistency, which could have arisen from a simple miscommunication, has resulted in any miscarriage of justice.

[39] The appellant contended that the prosecution coached the complainant and other witnesses.  He has not produced any evidence to support that assertion.  The appellant contended that the prosecution should have led additional CCTV footage.  There is no evidence there was any relevant footage which was not led.  These assertions are not made out.

[40] He emphasised that police officer Young said he was working with the complainant, rather than police officer Dewever.  He did not cross-examine police officer Young about this.  The most probable explanation for police officer Young's evidence on this point, referred to at [23] of these reasons, is that he mistakenly referred to the complainant instead of police officer Dewever.  The appellant certainly has not demonstrated that this inconsequential error has resulted in a miscarriage of justice.

[41] The appellant's complaints about his edited record of interview appeared to be that material relevant to the complainant on count 2 on the indictment, a count with which the prosecution did not proceed, should have been placed before the jury.  That evidence was not relevant to the present charge and could only have been detrimental to his case.  It was rightly excluded to make his trial as fair as it could be.  He has not demonstrated that the prosecution's prudent omission of that evidence at trial has resulted in a miscarriage of justice.  Indeed, had it been led this would almost certainly have been a ground of appeal.

[42] The appellant's erstwhile lawyers subpoenaed the complainant's medical records which were produced to the court at a pre-trial hearing on 31 July 2012.[29]  At the appeal hearing, the appellant handed up copies of notes which appeared to be extracts from those records.  It is true that portions of the records appeared to give some support to his allegation that the complainant may have been involved in prostitution prior to the commission of the alleged offence.  The records also referred to her past mental health state as including paranoid ideation.  Had the appellant been legally represented for the purpose of cross-examining the complainant, his lawyers may have investigated these matters.  The records, however, could not have been tendered without the complainant being cross-examined about them.  Unfortunately, the appellant's persistent insistence to eschew legal representation, even for the limited purpose of cross-examining the complainant, in the face of repeated, clear judicial warnings as to the consequences, meant that it was impossible for him to cross-examine her at all.  As he chose to conduct his case in this way, he was bound by it.  In the unusual circumstances of this case, the appellant has not demonstrated any error of law arising from the refusal to allow him to tender medical records.

[43] The appellant's principal contention was that the jury could not have accepted the complainant's evidence beyond reasonable doubt.  She was bigger and older than him and it would not have been possible for him to force himself on her.  As I have explained, because of the appellant's conduct of his case in refusing to have legal representation, the complainant was not cross-examined.  Her evidence was therefore unchallenged, although the appellant gave a competing version.  The jury were entitled to accept the complainant's evidence which was supported by her injuries and distressed condition.  Her credibility was boosted by her timely complaint.  The appellant was a fit looking young man in his early 20s.  Although the complainant appeared to be an older, larger person, she did not look strong or fit.  The jury were entitled to conclude beyond reasonable doubt that the appellant was capable of overpowering her in the pursuit of sex.  This contention is not made out.

[44] None of the contentions raised by the appellant, either individually or in combination, amount to an error of law or demonstrate a miscarriage of justice.

The judge's directions under s 21A(8)

[45] Judge Farr made orders in respect of the complainant's pre-recorded evidence under s 21A(2)(d) that a support person be present while her evidence was pre-recorded.  Section 21A(8) Evidence Act relevantly provides:

"If evidence is given, or to be given … on indictment under an order or direction mentioned in subsection (2)(a) to (e), the judge presiding at the proceeding must instruct the jury that—

(a)they should not draw any inference as to the defendant's guilt from the order or direction; and

(b)the probative value of the evidence is not increased or decreased because of the order or direction; and

(c)the evidence is not to be given any greater or lesser weight because of the order or direction."

[46] I have viewed significant portions of the complainant's pre-recorded evidence on my associate's computer.  An inset in the top right-hand corner of the monitor clearly depicted the support person.  Curiously, when the same DVD was played on the equipment in the Court of Appeal, the picture in the inset on the right-hand side of the screen disclosed only a portion of the support person's leg.  There is no evidence as to what exactly the jury saw.  But it is clear that the jury would have seen the complainant looking to her left many times during the playing of the pre-recording, apparently for reassurance.  I am satisfied on the admittedly incomplete evidence on the point before this Court that it is likely that the jury apprehended a support person was present with the complainant during the pre-recording of her evidence.

[47] The judge's relevant directions are set out at [15] and [30] of these reasons.  They make no reference to Judge Farr's order under s 21A(2)(d) Evidence Act that a support person be present while the complainant gave her evidence.  The respondent submitted that the judge's reference to "the way the evidence has been presented" or "was presented" sufficiently complied with the requirements of s 21A(8).

[48] I cannot accept that contention.  The jury were likely to have seen the support person during the complainant's evidence and noted that other witnesses did not have such support.  The judge's directions about the pre-recorded evidence at no stage referred to the presence of a support person which had been ordered under s 21A(2)(d).  The directions therefore did not comply with the unequivocal mandatory terms of s 21A(8).  The judge was obliged to give a s 21A(8) direction to cover each order or direction under s 21A(2)(a) to (e).  The directions given about "the way the evidence has been presented" or "was presented" did not equate to a direction about the order that a support person be present.  The support person was, in terms of s 21A(2)(d), "to provide emotional support" to the complainant and was not part of "the way the evidence was presented".

[49] There is now a well-established line of authority commencing in 2006 determining that the failure to comply with a mandatory requirement for the giving of a direction under s 21A(8) is an error of law.  This Court can uphold any subsequent conviction only if convinced, notwithstanding the non-compliance and after reviewing the whole of the record, that there has been no substantial miscarriage of justice.  The question is not whether the non-compliance could have had any adverse effect on the appellant's prospects of acquittal but whether, the trial being irregular, this Court is able to conclude for itself upon a review of the record that there has been no substantial miscarriage of justice.  See R v DM;[30] R v Michael;[31] R v BCL[32] and R v Little.[33]

[50] This was a most unusual case.  The law provided that, as the complainant was a protected witness, she could not be cross-examined by the appellant as long as he refused to accept legal aid even for the limited purpose of that cross-examination.  As a result, she was not cross-examined about her mental health even though Dr Boulnois' report, which had been placed before the court in a pre-trial hearing, demonstrated that she had grave mental health issues.  Nor could she be cross-examined about medical records produced to the court at a pre-trial hearing even though these may have undermined her credibility and reliability and provided some support for the appellant's evidence on affirmation that he paid her for consensual sex.  The appellant, who did not speak English well, conducted his trial ineffectually and through an interpreter.

[51] The mandatory warnings in s 21A(8) are concerned to ensure as fair a trial as possible for an accused person whilst also ensuring that special witnesses like the complainant have appropriate support and the opportunity to give their best evidence despite their special needs.  The trial judge's omission to give the warning in respect of the support person has resulted in the denial to the appellant of the procedural fairness intended by the legislature.

[52] It is true, as the respondent contends, that on the evidence at trial the prosecution case was strong.  But this was in no small part because of the appellant's imprudent insistence on self-representation which resulted in him conducting his case incompetently and without being permitted to cross-examine the complainant.  Had she been capably cross-examined about her mental health and other pertinent matters in her medical records, a properly instructed jury may have had a doubt as to her reliability.  The absence of cross-examination, however, was entirely the fault of the appellant.  Of more concern to this appeal, the jury was likely to have seen the support person and the complainant often seeking reassurance from her in the complainant's pre-recorded evidence.  The judge's omission to give the mandatory warning under s 21A(8) may have resulted in the jury giving improper weight to the complainant's evidence because of the presence of the support person, contrary to the legislature's clear intention.  With some considerable reluctance, I have concluded that, despite the weaknesses in the appellant's evidence and the considerable strength of the prosecution case at trial, I am unpersuaded that no substantial miscarriage of justice has arisen from the denial of procedural fairness arising from the omission to give the mandatory warning under s 21A(8).[34]

[53] For these reasons, I would allow the appeal against conviction, quash the conviction and order a re-trial.  I note that the appellant has been in custody since his arrest in June 2011, more than two years ago.  The appellant would be exceptionally foolish not to obtain legal representation.  He has demonstrated himself to be incapable of competently raising potentially critical exculpatory matters.  If he remains unrepresented he will again be unable in law to cross-examine the complainant at the re-trial which will make it exceedingly difficult to defend himself.  I propose the following orders:

1.Appeal against conviction allowed.

2.Conviction quashed.

3.Re-trial ordered.

[54] HOLMES JA:  I agree with the reasons of Margaret McMurdo P and the orders she proposes.

[55] GOTTERSON JA:  I agree with the orders proposed by Margaret McMurdo P and with the reasons given by her Honour.