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The appellant had been charged with two counts of rape and two counts of sexual assault. At the time of the alleged incident, the appellant was intoxicated and his memory of the incident was incomplete. After discussions with his legal representatives, he instructed his legal counsel to accept that certain acts alleged by the prosecution occurred – specifically that he licked the outside of the complainant’s vagina. During the course of cross-examination of the complainant, defence counsel alleged the appellant in fact licked the complainant’s clitoris but did not put his hands near her vagina. The Court of Appeal held that this positive assertion was inconsistent with the appellant’s instructions and resulted in a miscarriage of justice as it denied the appellant the chance of a fair acquittal. The Court ordered a retrial on each count.
Morrison JA and Applegarth and Boddice JJ
5 June 2020
The appellant was found guilty, by a jury, of two counts of rape and two counts of sexual assault. All counts arose out of one incident involving the same female complainant. On 16 December 2009, the appellant was sentenced to an effective head sentence of seven years’ imprisonment. A parole eligibility date was fixed at 14 June 2023. The appellant appealed those convictions on six grounds. –.
The complainant and appellant were friends and both aged 25 years old at the time of the alleged incident. –, . The incident occurred at the appellant’s apartment after the complainant and the appellant had spent the night with friends drinking at various locations in Brisbane. . Both the complainant and the appellant were intoxicated at the time of the incident. , .
This appeal turned on one “narrow, but important, point” which concerned the manner in which counsel ran the appellant’s trial with respect to Count 2, being a charge of rape comprising an alleged act of oral sex. . The Crown case at trial was that the appellant put his tongue in the complainant’s vagina or vulva without her consent. . The defence case was that the complainant consented to this act of oral sex or the appellant held the mistaken belief of consent
The defence strategy
The defence strategy at trial was circumscribed by the fact that the appellant did not remember all the events of the evening because of his level of intoxication. As such, the appellant instructed his counsel to run the case on the basis that he accepted that certain acts occurred – specifically, that he accepted that he licked the outside of the complainant’s vagina. . Importantly, as Applegarth J noted in his reasons, these instructions “were not stated by [the appellant] to be derived from his memory”, but were a “strategically sound” tactical decision, made in light of the appellant’s memory loss and the complainant’s pre-trial evidence to police that the appellant was “just licking the outside area” of her vagina. –, . Counsel’s advice was regarded as “a sensible one in all the circumstances”. .
The complainant subsequently resiled from her pre-trial evidence during her evidence in chief and asserted that the appellant had engaged in penetration during the act of oral sex. .
Such strategy must be treated with “extreme care” by defence counsel
Adopting a strategy whereby defence accepts that certain events occurred despite the appellant’s lack of memory of those events must be approached with “extreme care” by defence counsel.  (see also , ). Counsel must be careful to not “expressly or impliedly purport to put a positive defence case contrary to the client’s acceptance of the Crown’s case”. . To illustrate the degree of care required by counsel, both Applegarth and Boddice JJ separately referred to a passage of McLure P in Colley v The State of Western Australia  WASCA 79 at :
“ … it is outside the scope of any implied retainer for trial counsel to conduct a positive defence that is inconsistent with the accused’s instructions as to what actually occurred. A ‘positive defence’ includes cross-examination of witnesses for the prosecution suggesting, expressly or impliedly, that counsel is putting his or client’s instructions as to factual matters.” , .
Defence counsel’s positive assertion resulted in a miscarriage of justice
During his cross-examination of the complainant, defence counsel positively asserted to the complainant that the appellant “did in fact have oral sex with you by licking your clitoris but did not put his hands near your vagina”. In response to this assertion, the complainant replied that “he spread them open”. , .
This was held to be inconsistent with the appellant’s instructions to his legal representatives. As Boddice J explained, “[n]othing in the appellant’s instructions or acceptance of the trial strategy permitted counsel to put such specific allegations. They were not based on instructions” but were in fact “inconsistent with the instructions that had been given by the appellant”. . In his evidence, the trial solicitor could not identify the basis for defence counsel asking this question .
This positive assertion by defence counsel had two consequences. . The first, and “more significant consequence” was that it amounted to an admission of penetration, which was an essential element of the offence of rape the subject of Count 2.  (see also , ). This deprived the appellant of a real chance of acquittal on the basis that the prosecution had failed to prove penetration beyond reasonable doubt. .
The second consequence was that the positive assertion was capable of being used to cast doubt on the appellant’s out of court statements. , . It enabled the prosecutor to assert that the appellant had a more detailed recollection of events than he previously claimed to have or in other words, that the appellant’s account was “an evolving story”.  (see also ).
Ultimately, this resulted in a miscarriage of justice as the appellant was denied a fair opportunity of an acquittal on Count 2. , . This miscarriage of justice on Count 2 affected the appellant’s chance of acquittal on the remaining counts. It was ordered that a miscarriage of justice occurred in the way the case was conducted at trial, the verdicts of guilty should be set aside and a retrial ordered on each count. , .
A Hughes of Counsel