R v Davidson[2015] QCA 30

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of Philippides JA and the order proposed by her Honour.
2. MORRISON JA:  I have read the reasons of Philippides JA and agree with those reasons and the order proposed by her Honour.
3. PHILIPPIDES JA:  Background The appellant appeals against his conviction after a trial of one count of sexual assault and one count of rape, both occurring on 29 May 2012 at Cairns.
4. The offence of sexual assault, was particularised as “the defendant yanking down the complainant’s top and bra and sucking her breast”.  This was alleged to have occurred when the complainant was seated in the front passenger seat of the appellant’s van after he had picked up the complainant and offered to take her to the hospital but had, in fact, driven her to a parkland area and stopped in an adjacent car park at the northern end of the Cairns Esplanade, near Lily Street.
5. The offence of rape was particularised as either penile rape of the complainant’s vagina or by a thing or part of the appellant’s body that was not his penis.  This was alleged to have occurred in the back of the appellant’s van shortly after the episode constituting count 1.
6. The sole ground of appeal stated in the Notice of Appeal was that the jury’s verdicts were unreasonable.  However, the outline of the appellant, who appeared on his own behalf, raised additional matters, including that the learned trial judge exhibited bias which influenced the jury verdicts and that the appellant’s trial counsel and solicitor were negligent or biased.

Summary of the evidence in the prosecution case

Evidence of the complainant

7. The complainant was 22 years of age at the time in question.  Prior to the events in issue, she had resided in Cairns for about four months and was working in a local café.  On 29 May 2012, the complainant was dropped off at a doctor’s surgery by her boyfriend, so that she could have treatment for an abscess in her armpit.  When she attended the doctors’ surgery, the complainant was wearing a singlet and jeans.  The doctor surgically cut open the abscess and dressed the wound with a bandage, which was visible outside her clothing.
8. Following the surgical procedure, the complainant went to a chemist and filled a prescription for antibiotics and also for the painkiller Tramadol, which had been prescribed previously for pain from endometriosis.  After getting the scripts filled, the complainant took two Tramadol tablets (a total of 100 milligrams) and a dose of antibiotics.  The precise time when those medications were taken was not stated but it was sometime after 12.10 pm when the complainant saw the doctor.  Earlier that morning, the complainant had taken 50 milligrams of a prescribed anti-depressant medication, Sertraline.  About 15 minutes after the complainant had taken the Tramadol and antibiotics, she began to feel “a bit dizzy, a bit lightheaded” and “nauseous”.  The complainant thought she would get something to eat but, on checking her bank balance at an ATM, found that she did not have sufficient money.
9. The complainant decided to walk back to the house where she lived but, because she did not know the area very well, she became disoriented.  As she walked down Winkworth Street, she saw a man and a woman on that street.  (The evidence later revealed that the man was the appellant.)  The complainant began to feel very unwell and sat down next to a wall.  She had been there for about 10 minutes when a white van stopped.  It was driven by the appellant, who was not then known to the complainant.  The appellant asked the complainant if she was okay.  She replied that she did not feel too good and asked whether he knew where the hospital was.  The appellant said that he did and that he would take her there.  The complainant explained that she had an infection on her arm and that it was really sore.
10. The complainant got in the front passenger seat and the appellant commenced driving.  At one point, the appellant told the complainant that he needed to check her temperature and put his hand on her forehead.  He then said he needed to check her heartbeat and put his hand on her chest.  The complainant said she “sort of just freaked out” and “froze up at that point”.  She was frightened and did not say anything.  The appellant then said again to the complainant that he needed to test her heartbeat and lowered his hand beneath her bra.  The complainant did not say anything.  She felt vulnerable and was too scared.  She closed her eyes “out of fear” and thought that if the appellant believed she was asleep, he might leave her alone.  As the appellant put his hand on her breast, he said, “[Y]ou have the best boobs ever”.  The complainant remembered opening her eyes as they were driving past a 24 hour medical centre.  The appellant then put his hand underneath her bra and grabbed her breast^[1] and kept saying over and over again, “You’re so beautiful”.  The complainant then said, “Don’t.  My arm’s really sore” and put her hand over her chest.  She asked, “How far away is the hospital?”  The appellant replied, “We’re going there now”.
11. The appellant drove into the car park of the hospital and, while there, he put his hand on her chest again.  He then grabbed her top and pulled it up saying, “Fix that up”.  The appellant told the complainant that he was trying to find a park.  He exited the hospital car park and drove down to the end of the Cairns Esplanade.  He parked the van in a car park next to a park but kept the engine running.  The appellant then grabbed the complainant’s top and bra and “yanked it down really forcefully”, exposing her breast.  He leant over and began sucking her breast for about 30 seconds.  (This grabbing and sucking on the complainant’s breast constituted count 1.)  The appellant said, “I just want to fuck you”.  The complainant was scared and “just froze up”.
12. The appellant then put his hand at the top of the complainant’s jeans and tried to put his hand down her pants.  She crossed her legs to stop him.  She was unsure whether her eyes were open or closed at this point.  The appellant said “Oh fuck it”.  He put his hands in his own pants.  The complainant felt the van rocking and heard him moaning.  After a period of time (about four minutes), he stopped and said, “I just want to fuck you”.  The complainant did not say anything in response to this.
13. The appellant began to drive off but only proceeded a short distance within the car park and turned the car engine off.  He told the complainant, “You’re not feeling well you need to lie down”.  He got out of the van and came around to the complainant’s side.  She said, “No.  I’m right.  I don’t need to lie down”.  The appellant replied, “Yes.  You are going to go – you are going to lie down in the back of the van”.  The appellant was starting to become aggravated, which scared the complainant.  She looked around the park, saw that it was empty and felt she would not get far if she tried to run.  The appellant then undid her seatbelt and grabbed both of her arms and pulled her out of the van.  He shuffled her into the back of the van, which was open.  He pushed her onto her back.  The appellant then moved her so that her head was towards the rear of the van, got into the van and closed the door.  The appellant then pulled the complainant’s singlet and bra up above her breasts.  He unbuttoned her jeans and pulled them down to her ankles and then did the same with her underwear.  The complainant closed her eyes and felt a rough penetration of her vagina.  She was wearing a tampon, which she felt being pushed up.  The complainant described the appellant as being on top of her with his hands on either side of her, near her shoulders and upper arms.  The penetration lasted for three to five minutes and stopped when she was able to push him back.  The complainant started to cry.  The appellant said, “I will take you to the hospital now”.
14. The appellant then dressed the complainant, pulled her out of the rear of the van and pushed her into the front passenger seat.  He drove towards the hospital.  Before reaching the hospital, the appellant received a phone call, in which he said something like, “yeah, I will be there soon”.  The appellant then dropped the complainant off at the car park across from the hospital.  She went into the hospital, where she made a complaint about what had occurred.
15. In cross-examination, the complainant accepted that the medication made her feel woozy, dizzy and a bit confused as to where she was.  When questioned as to whether, on her account, the van would have been parked for 10 minutes, the complainant accepted that she did not know how long the van was parked.  The complaint also said she had her eyes closed when the appellant penetrated her and did not see what it was that had penetrated her.
16. Although the complainant’s account of the events, alleged to constitute counts 1 and 2, was challenged, it was also put to her that there had been some sexual touching.  However, it was put that that had occurred in the back of the parked van and consisted only of the appellant “putting his hand on [her] leg, firstly, and then putting his mouth on [her] breast”.  The complainant rejected that proposition.  She also rejected the sequence of events put to her, which differed from her evidence.  The sequence put was that as the appellant drove past the 24 hour medical centre, he asked the complainant if he could drop her off there and the complainant said she wanted to be dropped off at the hospital.  This conversation was limited to the complainant saying she had an infection on her arm.  The appellant did a loop of the car park, drove a distance down the Esplanade and stopped near a car park area.  He opened the back of the van and asked if she wanted to sit on the floor with the sliding door open.  The complainant did lie down, which was when the only touching occurred.

Evidence of the nursing staff at the Cairns Hospital

17. Mr Timpson, who was a triage nurse at the Cairns Hospital, gave evidence that a woman came into the emergency department.  She was “crying and very distressed, quite emotional”.  He asked what was wrong and the complainant said a number of times, “He pulled me into the car”.
18. Ms Edmondson, who was also a triage nurse, then spoke with the complainant and asked why she came to the hospital and whether she had been sexually assaulted.  The complainant responded, “Yes” and said she had been “dragged into the back of a car with a man”.  She said it had happened just before she came into the hospital.  Ms Edmondson said she then followed the hospital procedure of not going into the details of what had occurred, beyond the reason for attending the hospital.  She said the complainant’s speech was coherent and she had no difficulties walking.
19. Ms Balodis, a forensic nurse, gave evidence of the examination of the complainant at the hospital on 29 May 2012.  She said that the complainant was crying intermittently, she looked tired and upset but was able to speak coherently and clearly.  She took a number of samples for DNA testing, including from the vagina (which were blood stained because the complainant was menstruating).

Evidence of police witnesses

20. The investigating officer, Detective Jacovos, gave evidence that he went to the Cairns Hospital on 29 May 2012 and took an audio recorded statement from the complainant, following which he drove the complainant to the places that she referred to in her statement.  The appellant was identified as the registered owner of the van fitting the description given by the complainant.  When questioned by police about whether he picked up anyone the day before, he admitted “There was a girl who was sick and I took her to the hospital” and indicated that had occurred on 29 May 2012.
21. Detective Jacovos produced a compilation of CCTV footage from the relevant areas inside and outside the hospital, the lobby of the Mercure hotel on the Esplanade and the corner of Aumuller Street and Mulgrave Road.  The CCTV footage showed the appellant’s van in the hospital car park and that there was an emergency drop-off zone available.  The CCTV compilation also showed that there was an approximately 13 minute gap between the van driving past the Mercure hotel, 200 metres from the hospital, and when it returned past the same point.  The distance between the hospital car park and the Lily Street end of the Esplanade was about 1.2 km.

Evidence of medical witnesses

22. Dr Stein gave evidence of treating the complainant’s abscess by lancing it.  The treatment was “very painful” and during the process the complainant was “distressed” and was “quite pale”.
23. Dr Griffiths gave evidence about the drugs the complainant had taken on 29 May 2012 and their effects and possible interactions.  A dose of 100 milligrams of Tramadol could cause drowsiness but was unlikely to cause sleep.  Tramadol could interact with the anti-depressant medication, Sertraline, resulting, in extreme cases, in serotonin syndrome causing confusion, hallucinations and serious physical side effects.  In milder cases, there were generally no effects on cognition, that is, memory loss or confusion.  Dr Griffiths did not consider that the material as to the complainant’s presentation at the hospital was consistent with her presenting with serotonin syndrome.
24. Ms Reeves, a DNA scientist with Queensland Health, gave evidence concerning the nature of DNA evidence and profiling, forensic sampling for DNA and its limitations.  She was asked if a DNA profile of an external donor would always be able to be detected in circumstances where a penis penetrated a vagina.  She explained that in such a situation there may be circumstances where foreign DNA was unable to be detected because it was “swamp[ed] out” by the much greater number of cells from the vaginal wall.  This could occur in a menstruating woman, as was the case with the complainant.  The epithelial cell fractions from the test samples were not in fact analysed due to the practice of the forensic unit, given the likelihood of the results matching the donor’s DNA profile.  The spermatozoa fractions from the vaginal swabs taken from the complainant showed the presence of sperm which matched the referenced DNA profile of the complainant’s boyfriend, with whom she had had sex the night before the events in question.  A swab from the complainant’s right breast showed a DNA profile consistent with the referenced profile of the appellant.  No DNA of the appellant was found on a sample from the complainant’s underpants.

Evidence of the appellant’s wife

25. The appellant’s wife, Mrs Davidson, gave evidence that she drove past a young blonde girl, who she later found out was the complainant, walking on her street.  She said that the girl looked intoxicated as she was stumbling and that she had a red, swollen and puffy face.  Mrs Davidson recalled a phone call with her husband later at about 2.10 pm on 29 May 2012 but did not recall what was said.^[2]

Summary of the defence case

26. The appellant gave evidence.  No other witness was called.  The effect of his evidence was that he denied the events the subject of count 1 but admitted some sexualised behaviour had occurred in the back of the parked van.  He also denied raping the complainant.
27. His evidence was that, at about 1.00 to 1.30 pm, he saw the complainant stumbling along the street in front of his house.  About 15 minutes later, he saw her again near Mulgrave Road sitting up against a building.  He was driving his van.  She looked “drunk or drugged” and “out of place”.  He stopped the van and reversed towards her.  He got out of the van and opened the rear sliding door and then closed it.  He was trying to look busy while he checked out “what she was doing” and “what state she was in”.  He then got back into the van, unwound the passenger side window and asked if she was alright.  She asked if he knew where the hospital was and whether he would take her there, which he agreed to do.  There was a brief conversation about her arm.  As they approached the 24 hour medical centre, he asked if he could drop her off there but the complainant said she wanted to go to the hospital.
28. The appellant said he drove into the hospital car park but there were no free car parks.  He “didn’t want to just drop her there”.  (In cross-examination, he explained that he felt he needed to assist her to the hospital, because he was concerned about her health.)  He looked for a park while driving down to the Cairns Esplanade but then realised he was getting too far down the road.  He heard his phone ring and did a U‑turn.  He pulled over and answered a phone call from his wife.  After speaking to his wife, he looked at the complainant and thought she needed “a breath of air”.  He helped her out of the passenger seat of the van, took her around the back of the van, opened the rear door and sat her there, where he smoked a cigarette.
29. The appellant said that after he finished his cigarette, he sat down next to the complainant, who lay down.  The appellant then put his “hand on her thigh and was rubbing her thigh”.  The appellant explained he did that because he was being “friendly, flirtatious”.  He said the complainant smiled at him and opened her lips.  He then put his hand on her top and was feeling her breast.  The appellant said that the complainant:

“… wasn’t resisting me, or saying no or pushing me away or anything of that nature.  I then either sucked or licked her nipple and then I stopped, looked at her again and didn’t want to carry on any further.  She looked vague, strange, something I can’t explain.  Whether it was the drugs, the medication she was on, I don’t know.”

30. In cross-examination, the appellant said that it was because of the way the complainant looked at him and smiled at him, that he thought she was giving signs she was sexually interested in him and that was when he put his hand on her thigh.
31. The appellant said that the complainant returned to the front seat of the van and he then drove her to the hospital, where there were still no available parks, so he dropped her off across the road from the hospital and saw her walk across the road and into the hospital.
32. The appellant was cross-examined about his version of events, including his observations of the complainant’s physical state and her requests to be taken to a hospital and his actions of not dropping the complainant at the hospital (when he initially did a circuit through the hospital car park) but instead proceeding to drive down to the end of the Cairns Esplanade.

Grounds of appeal

33. As stated, the primary ground of appeal was that the jury’s verdict was unreasonable.  Other matters such as bias by the trial judge and negligence or bias by the appellant’s trial counsel and solicitor were also put forward in submissions.
34. The respondent submitted that no ground of appeal was made out.  There was no evidence of bias against the appellant in the learned trial judge’s conduct of the trial.  The appellant’s experienced trial counsel conducted the trial competently and took every valid forensic point.  Furthermore, the verdicts were well supported by the evidence.  The appeal should therefore be dismissed.

Unreasonable verdicts

35. Where a court is asked to conclude that the verdict of the jury is unreasonable, it is necessary for the court to review the appeal record and determine whether it was open, upon the whole of the evidence, for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt: MFA v The Queen.^[3]  It must also be borne in mind that this ground of appeal is to be considered:^[4]

“… within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.”

36. In raising this ground, the Notice of Appeal placed emphasis on a contention advanced at trial concerning the time required to commit the alleged offences.  The appellant contended that the interval of 13 minutes, shown on the CCTV footage, did not allow sufficient time for the events as described by the complainant but was consistent with the account given by the appellant.  The Notice of Appeal described the complainant’s account of the events as including: that the appellant drove out of the hospital car park to the northern end of the Esplanade (a distance of some 1.2 km); and his conduct in committing the sexual assault, appearing to masturbate, pushing her in the back of the van and raping her for three to five minutes, after which he dressed her and drove back to the hospital answering a phone call on the way.  Although the appellant contended that the interval recorded on the CCTV footage was consistent with his version of events, it is to be observed that his own account also involved him driving for one kilometre before getting out of the van, smoking a cigarette, helping the complainant into the back of the van and engaging in some sexual interaction with her.
37. It was not unreasonable for the jury to conclude that the relevant events as described by the complainant did occur during the 13 minute interval in question.  Moreover, in assessing the complainant’s evidence as to the duration of certain events, for example how long the penetration continued, the jury might well have considered that she may have overestimated the time involved, given that she was medicated and the traumatic nature of the events reported.  The issue of timing was thus not one likely to have troubled the jury greatly.
38. The appellant also argued that the DNA evidence was inconsistent with the complainant’s version but consistent with his account and precluded the prospect of the jury being satisfied beyond reasonable doubt as to count 2.  In relation to the DNA evidence, the appellant pointed to the fact that DNA matching the appellant’s DNA was only found on a sample from the right breast of the complainant.  There was no trace of DNA matching the appellant’s DNA found in the samples taken from the complainant’s vagina nor on the fabric sample from the complainant’s underwear.  Ms Reeves, explained the testing process in some detail.  Samples from the complainant’s vulva, high vaginal area and perianal area underwent a “differential lipid extraction process”.  Ms Reeves clarified that the technique “effectively tries to separate any sperm that may be present in the sample, from any other cell types”.  As a result of the process, each sample is divided into two separate fractions – a spermatozoa fraction, containing sperm DNA, and an epithelial fraction, containing other cellular DNA.  The laboratory tested the spermatozoa fractions from each of the samples.  In the vulva and high vaginal samples, DNA was found which was consistent with the DNA profile of the complainant’s boyfriend, with whom she had had intercourse on the previous night.  In the perianal sample, no DNA profile was obtained.  There was no testing conducted on any of the epithelial fractions.  As mentioned, Ms Reeves also explained the limitations of DNA evidence, in particular, where there is “swamping out” as may occur in a woman who was menstruating.
39. The probative value of the DNA profiles taken from the spermatozoa fractions was to be assessed in light of all the evidence, including that the complainant could not state whether there had been ejaculation or indeed whether the penetration she reported occurring was penile penetration (although her evidence of the position of the appellant’s hands and body was consistent with that occurring).  The jury were instructed that ejaculation was not required to prove the rape charge and they were also directed on the definition of rape in relation to both penile and non-penile penetration.  The DNA evidence was evidence to be considered, together with all the other evidence, but was not such that the jury could not have reached the verdict they did on count 2.  It was evidence which was able to be viewed as not inconsistent with the complainant’s account.
40. The appellant also sought to make something of what was said to be an inconsistency in the evidence of the complainant and Ms Balodis.  The appellant drew attention to Ms Balodis’ evidence that the complainant reported vaginal pain during the forensic examination, whereas the complainant, in her evidence in chief, did not mention experiencing pain during the alleged penetration.  This point was not one likely to have caused the jury any difficulty.  The pain subsequently experienced may well have been understood as being consequential to the “rough penetration” described by the complainant.
41. When the whole of the evidence in the trial is considered, it was clearly open to the jury to be satisfied beyond reasonable doubt as to each of the counts.

Judicial bias

42. The appellant asserts that the trial judge showed actual bias against him.  The appellant’s outline referred to numerous appeal book references which, it was contended, demonstrated that the trial judge was biased and sought to influence the jury against him.  In my view, an examination of those references does not support the appellant’s assertions.
43. An example of the unmeritorious contentions made in relation to how the trial judge presided over the trial was the submission that he “intellectually” interfered with the jury and “induced” them to reach “an arbitrary judgement” that was not based on facts but “on an orchestrated symphony of emotion and sympathy”.  Such complaints are unfounded.  The trial judge gave standard directions on what constituted evidence, that the jury’s verdict must be based only on the evidence and on the need to dismiss all feelings of sympathy or prejudice.  Another complaint made was that the trial judge “cluttered the unseasoned/inexperienced jurors with more information than they could reasonably comprehend”.  The summing up was concise and explained the appellant’s presumed innocence and the onus on the prosecution to prove the offence charged beyond reasonable doubt.
44. The trial judge properly explained the law that applied, outlined the relevant evidence to which the law was to be applied and summarised the rival contentions.  The appellant’s counsel sought no redirection on any matter of law or fact.  I accept the respondent’s submissions that no indication of bias is found in any aspect of the judge’s summing up.
45. Nor is there substance in the submission by the appellant that the jury’s verdict on count 1 was influenced by the way the trial judge framed the charge of indecent assault in his summing up; that is, that it consisted of the appellant “yanking down the complainant’s top and bra and sucking her breast”.  The trial judge’s particularisation merely reflected the words used by the complainant in her evidence to describe the alleged conduct.
46. The appellant referred to discussions between counsel and the trial judge concerning directions as to the use that could be made of the appellant’s evidence that he did have some sexualised contact with the complainant.  The discussions concerned whether, if that evidence was put before the jury as an admission, it might cause confusion (given that the conduct did not concern the charged acts) and whether there should be a direction as to discreditable conduct.  The manner in which the trial judge dealt with those issues was favourable to the appellant.  There was no evidence of bias in the approach taken by the trial judge.
47. It was not entirely clear from the appellant’s outline whether the appellant was also complaining of apprehended bias; that is, even if the trial judge was not in fact biased, a reasonable observer might, nonetheless, conclude that he was.  Given that the appellant was self-represented, the respondent dealt with that issue also and it is appropriate now to address that matter.  The test for apprehended bias was expressed in Johnson v Johnson as follows:^[5]

“[W]hether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”

48. Just as the appellant’s claim of actual bias is without merit, so too is any complaint of apprehended bias.  Nothing can be pointed to, in the circumstances of the present case, which might cause a fair-minded lay observer reasonably to apprehend that the trial judge “might not bring an impartial and unprejudiced mind” to the resolution of the questions he was required to decide, which in this case concerned the legal rulings required in the course of the trial and the directions to the jury.

Incompetent representation

49. In his outline, the appellant contended that he was not properly represented by his trial counsel, who it was asserted was biased and prejudiced against him, as was his solicitor.
50. The appellant complained that his solicitor should have ensured that a committal hearing was held to explore six matters listed.^[6]  These concerned DNA evidence, the medical evidence as to the complainant’s state of mind, the issue of the timeframe in which the offences were alleged to have been committed, whether the hospital staff “perceived, introduced and encouraged” the idea of a “rape” as the complainant did not say she was raped on presentation to the hospital, the initial investigation of the complaint and that the complainant did not state that she was “raped with [the appellant’s] penis”.  Given that each of the matters referred to was or could have been explored at trial, no miscarriage occurred by virtue of the absence of a committal hearing to investigate those matters.
51. The appellant’s articulation as to how counsel’s alleged negligence or bias affected the actual conduct of his case at trial appears to be that his counsel “agreed with his Honour on so many points and did not take an interest in [his] innocence or defence relative to his hired call”.  The crux of the complaint against the appellant’s trial counsel, thus, appears to be that his counsel did not properly put forward his case.  As the respondent submitted, the difficulty with that argument is that this was a case where the jury had the benefit of hearing the appellant’s evidence as to what he contended occurred.  The jury was in a position to assess his evidence, including any inconsistencies in it and whether it was plausible.  In that regard, it is to be observed that the appellant’s evidence was that he did not “want to just drop” the complainant off in the hospital car park, when he initially was unable to find a parking spot, because of his concern that the complainant was unwell.  Yet, he also gave evidence that he then drove for about one kilometre before he stopped (because he thought the complainant needed a “breath of fresh air”) had a cigarette and had sexual contact with her before again becoming concerned that she was unwell.  Of course, in considering the evidence including the appellant’s evidence, the jury were properly instructed by the trial judge that the prosecution had the burden of disproving the appellant’s account beyond reasonable doubt and proving beyond reasonable doubt that the complainant’s account was true.
52. The appellant complained that defence counsel did not cross-examine Ms Balodis about her remark that the complainant was “understandably upset”.  Counsel may well have considered such cross-examination would only serve to draw attention to the complainant’s state of distress when seen by Ms Balodis.
53. The appellant also questioned defence counsel’s failure to cross-examine the witness as to her opinion concerning whether penile or digital rape had occurred.  Given that the DNA evidence was not necessarily inconsistent with the complainant’s account, this may be seen as an understandable forensic decision by defence counsel.
54. As the respondent submitted, the fact that the appellant does not agree with his counsel’s approach does not make his representation incompetent.  It is pertinent to note Gaudron J’s observation in TKWJ v The Queen:^[7]

“… the conduct of a criminal trial frequently involves defence counsel in making tactical decisions designed to obtain a forensic advantage or, perhaps, to avoid a forensic disadvantage.  Those decisions may contribute to a defect or irregularity in the trial.  Thus, for example, defence counsel may decide not to seek directions with respect to the need for corroboration lest the directions serve to emphasise the strength of the corroborative evidence with the result that there is a defect in the trial because no such directions are given.  The second reason is that, ordinarily, it is not possible to know what was in defence counsel’s brief.

Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether ‘no substantial miscarriage of justice has actually occurred’.  In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.

The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused 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 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.”

55. I accept the respondent’s submission that when the conduct of the trial is examined, it is clear that the appellant’s counsel did what reasonably could be done given the forensic problems posed by the appellant’s sworn version of events.^[8]  An examination of the appeal record of the trial does not reveal that the appellant’s representation was incompetent or that a miscarriage of justice occurred.

Order

56. The appellant has not made out the ground set out in the Notice of Appeal nor is there any substance in any complaint set out in the appellant’s outline.  The appeal should be dismissed.