Regina v AC [1999] NSWCCA 19

New South Wales Court of Criminal Appeal CITATION : Regina v AC [1999] NSWCCA 19 revised -10/03/99 FILE NUMBER(S) : CCA 60666/97 HEARING DATE(S) : 2 March 1999 JUDGMENT DATE : 2 March 1999

Regina (Respondent)

PARTIES : v

AC (Appellant) JUDGMENT OF : Abadee J at 33; Barr J at 1; Adams J at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/11/0438 LOWER COURT JUDICIAL OFFICER : Viney DCJ

WG Dawe QC (Respondent) COUNSEL : IS Lloyd QC/DG Dalton (Appellant) SE O'Connor (Respondent) SOLICITORS : John B Hajje & Associates (Appellant) CATCHWORDS : ACTS CITED : Crimes Act s 409B Gallagher v The Queen (1986) 160 CLR 392 CASES CITED: Mickelberg v The Queen (1989) 167 CLR 259 R v Birks (1990) 19 NSWLR 677 DECISION : Appeal allowed. Convictions quashed. New trial ordered.

IN THE COURT OF CRIMINAL APPEAL 60666/97

ABADEE J BARR J ADAMS J

Tuesday, 2 March 1999 REGINA v AC JUDGMENT

1 BARR J: This is an appeal against convictions entered in the District Court. The appellant was tried by a jury on twelve counts of having had sexual intercourse with a child between aged between 10 and 16 years who was under his authority. Of the twelve counts, six alleged penetration of the vagina by the penis and the remainder alleged sexual intercourse of other kinds. 2 Because of the way in which the trial was conducted, the jury had only one question to answer on each count, namely, whether the appellant had had sexual intercourse as alleged. He gave evidence and denied each of the acts alleged. 3 As was proper, the jury were told to consider each charge separately and to look when considering any charge for evidence that added weight to the complainant's evidence. They were told that unless there were some other evidence in the case they would have to consider very carefully the risk of acting on the evidence of the complainant alone and that there was a very significant risk that the appellant would be wrongly convicted. 4 The Crown relied upon a number of pieces of evidence to support the complainant's, including that of two medical practitioners who concluded by reference to the condition of the complainant on examination that there had been penetration of her vagina, probably by a penis, from a time before puberty. The complainant was 11 or 12 years old at the time of the earliest event relied on by the Crown so the medical evidence was likely to give strong support to her evidence. 5 The jury convicted the appellant of all the counts based on penetration of the vagina by the penis and acquitted him of all the others and it appears to have been accepted on appeal that the medical evidence to which I have referred explains and justifies the jury's discrimination. 6 There are two grounds of appeal, namely - 1. The Appellant's counsel, solicitor, and/or overall legal representation before and/or at trial has given rise to a possible miscarriage of justice; and 2. The verdicts of guilty returned by the jury are unsafe and unsatisfactory. 7 An alternative and perhaps better way of putting the second ground might be to say that the circumstances in which the trial was conducted have led to a miscarriage of justice. The grounds can be considered together, however, because they raise the same questions. 8 The issues having been joined in the way that I have summarised, any evidence which might raise the reasonable possibility that anyone other than the appellant had had penile-vaginal sexual intercourse with the complainant during the times particularised in the indictment was likely to be important to the defence. In fact, the learned trial judge, Judge Viney of Queen's Counsel, admitted evidence of such a kind, applying the provisions of section 409B of the Crimes Act, from Ms Hassarati, a former school teacher of the complainant, who said that on an occasion in November 1994 the complainant told her that she had had sexual relations with a boy from a public school and thought she might be pregnant. The complainant denied telling the teacher that she had had sexual intercourse with a boy. 9 The Crown's intention had been to call Ms Hassarati to give evidence only about complaint, but it emerged at a conference held during the trial that she could give the further evidence to which I have referred. Notwithstanding the lateness of the introduction of this material, defence counsel seized upon it and obtained leave to cross-examine the complainant about the conversation Miss Hassarati said that they had had. It appears from the summing-up that defence counsel made use of the conversation in his closing address. This shows that counsel was alert to use whatever material might be made available to raise the reasonable possibility of the complainant's having had sexual intercourse with anyone other than the accused. 10 The appellant asserts on appeal that other evidence of a similar kind existed at the trial, but that trial counsel was never made aware of it and that the result is that the appellant lost the chance of an acquittal so that there has been a miscarriage of justice and the conviction should be set aside. (See Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259). 11 The appellant read two affidavits in the appeal. The first was sworn by Mr Fredericks, the former solicitor of the appellant, on 11 March 1997. Mr Fredericks briefed counsel who ultimately appeared for the appellant at the trial, which began on 3 November 1997. Annexed to Mr Fredericks' affidavit is a statement of a witness, Miss Alha, dated 19 January 1996. I should add that although that is the date at the head of the document, it is apparent from the context that it was probably written over a period of some months. It contains statements by Miss Alha to the effect that the complainant told her something about sexual experiences she had had with persons other than the appellant. Mr Fredericks says that counsel's brief did not include any statement of that witness. 12 Mr Fredericks goes on to say in his affidavit that on 14 October 1997 he attended counsel's chambers with the appellant and that the appellant asked whether evidence as to the complainant's sexual reputation and experience would be helpful. There was no specific reference to any statement from the witness Alha. He said that counsel referred to section 409B of the Crimes Act and explained its operation. He advised that any such evidence had to be in the form of a written statement, signed, witnessed and dated. He said that such evidence would have to be genuine and not concocted because if it were revealed as false it could involve the maker and the appellant in further serious criminal charges. 13 Mr Fredericks also says that counsel advised that in view of the age of the complainant and the relationship she bore to the appellant the jury could form an adverse view of the appellant and his defence if it was sought to discredit her by such evidence. 14 Counsel also advised that such alleged evidence did not sit comfortably with the appellant's case that the complainant was making false accusations against him because he was strict with her. 15 Mr Fredericks goes on to say in his affidavit that the appellant did not raise the matter again until after the jury's verdict. 16 Also read was an affidavit of the appellant's present solicitor, Mr John Hajje. Annexed to Mr Hajje's affidavit is a copy of a further statement of Miss Alha dated 27 April 1998. Mr Hajje also gave oral evidence in further explanation of what happened in a conference between himself, junior counsel and Miss Alha. A summary of the evidence is that a statement like the one annexed to Mr Hajje's affidavit was made available to the appellant's instructing solicitor and counsel during an earlier proceeding. 17 It is known from the terms of Miss Alha's first statement that she attended a conference with counsel who represented the appellant at the committal, but there was a change of counsel before trial. I assume that when speaking to Mr Hajje and junior counsel Miss Alha was referring to a conference with counsel who represented the appellant at the committal, not the trial. 18 Miss Alha also told Mr Hajje that she had had a very brief conversation with counsel who may have been counsel at the trial. Although the evidence is not entirely clear, I think it likely that trial counsel never saw any written statement of Miss Alha and that at any brief conference with her counsel lacked any detailed idea of the evidence she might have been able to give. 19 It seems to me to be inconceivable in view of the attitude taken by trial counsel in response to Miss Hassarati's unexpected evidence that he would have known about the availability of Miss Alha's evidence and not taken advantage of it. 20 Much of the material in the two statements would have been inadmissible either because it was irrelevant or because it was opinion evidence or for other reasons. However, both statements contain assertions that the complainant told Miss Alha that she had slept with other boys, one of whom she named and otherwise identified. 21 In her statement of 27 April 1998 Miss Alha also said that the complainant told her that she started sleeping with boys from a young age and that they played with each other in a sexual way. The times about which Miss Alha was speaking must have been the times contemplated by the particulars of the counts in the indictment. 22 In addition, the statements of Miss Alha, if true, showed that the complainant gave Miss Alha a version of events very like accounts in certain editions of a magazine called "Dolly" that the complainant possessed and that Miss Alha saw, that she gave conflicting versions of events from time to time, and that she disliked her parents and wanted to be free from their control. 23 It was first submitted that there could be no doubt that the evidence of Miss Alha was available to the appellant's solicitor at the trial and that it was not relied upon because of what was described as the flagrant incompetence of the appellant's legal representatives. In R v Birks (1990) 19 NSWLR 677, Gleeson CJ reviewed the authorities relating to the rights and duties of counsel in conducting a case on behalf of a client and went on at 685 to summarise the principles as follows: 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 accused person is bound by the way the trial 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 trial, 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. 24 Of course, what is complained about here is not anything that counsel did or did not do, but the failure of the solicitor who well knew the facts to furnish counsel with material essential to the proper defence of the trial. I take it that the same principles would apply to the work of such a solicitor. 25 The trial barrister was highly experienced in the conduct of criminal trials. This Court does not have the benefit of his version of what happened at the trial. The solicitor for the appellant has made a number of attempts to obtain an affidavit from him, but none is forthcoming. I think in the end that the absence of counsel's evidence has been sufficiently explained and I would draw no inference from the failure of the appellant to call evidence from counsel. 26 As appears from the summing-up, the defence strategy was to put forward the appellant and his wife, the mother of the complainant, as virtuous and hard working citizens of a strong Lebanese background and culture who exercised strong moral control over the complainant. The complainant was put forward as an immature girl, perhaps confused in a clash of cultures, rebellious against what she considered were the unreasonable restrictions placed upon her by her parents. 27 One of the things the jury would have had to consider if they accepted those submissions was whether part of the complainant's rebellion might have included having sexual relations with boys. In his summing-up his Honour summarised part of the Crown and defence cases on evidence which might support the complainant's evidence. Having advised the jury to look for supporting evidence his Honour said this: "The Crown says there is such supporting evidence available. She points to a couple of features. One, the close supervision that [the complainant] was under as a resident of the family. She was driven to school and driven home each day, she hardly ever went out anywhere unless chaperoned. In fact, she hardly ever went out at all. If she went to a social function her mother drove her there, ensured there was adequate supervision, and collected her and brought her home. So if [the complainant] was being subjected to regular sexual assault where and by whom was it likely to have been done? Answer, in the home. That is the Crown's argument. [Defence counsel] counters that proposition by arguing that another view of the growing-up years of [the complainant] is that she is and was a high spirited girl and rebellious. Was that because of the sexual assaults going on in the home, or was it perhaps a rebellion against the strict regime in the household of her family?". 28 The statement of Miss Alha of 19 January 1996 does not identify any age or time at which, according to the complainant, the complainant began having sexual intercourse with boys, but if counsel had read it that was a matter with which he would have been concerned and I think that he would have asked her about the detail of it. 29 Miss Alha's statement of 27 April 1998 contains the additional assertion that the complainant told her that she started sleeping with boys from a young age and played with them in a sexual way. Although that statement did not exist at the time of the trial, Miss Alha must have been able to say something about it if interviewed because she was relating things the complainant had told her during 1995. It seems to me that counsel would have been astute to ascertain from Miss Alha the version most favourable to the appellant of what the complainant had told her, including the detail about the earliest claimed sexual intercourse with anybody other than the appellant. 30 In my opinion, evidence of the kind that Miss Alha was able to give can be regarded as cogent evidence. I think that defence counsel's lack of that evidence has denied the appellant a real chance of an acquittal because it seems to me that the result might possibly have been different if defence counsel had been able to use it. I think in all the circumstances that there was a miscarriage of justice because a document essential to the proper conduct of the defence case was unavailable to defence counsel. 31 The second submission based on the same material was that whilst the evidence of Miss Alha is not fresh or new, it ought to be treated as though it were because counsel was not briefed with Miss Alha's statement of 19 January 1996. I think for the reasons I have already expressed that this submission is made out and that there was a miscarriage of justice. 32 I would allow the appeal. I would quash the conviction and order a new trial. 33 ABADEE J: I agree with the proposed orders for the reasons given by Justice Barr. 34 ADAMS J: I also agree and I wish to add this comment: Because there is to be a new trial, careful attention will have to be given to the scope of evidence, should there be a trial actually held, called by the Crown in order to properly deal with the matters in respect of which the appellant has been acquitted. 35 ABADEE J: The orders of the Court will be the orders as proposed by Justice Barr. **********