New South Wales Court of Criminal Appeal CITATION : REGINA v ROBERTS [1999] NSWCCA 124 FILE NUMBER(S) : CCA 60164/97 HEARING DATE(S) : 12 May 1999 JUDGMENT DATE : 12 May 1999 PARTIES : Regina v Murray John ROBERTS JUDGMENT OF : Spigelman CJ at 72; Bell J at 1; Smart AJ at 73 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/51/0166 LOWER COURT JUDICIAL OFFICER : Ducker DCJ COUNSEL : Appellant: G. Wendler Respondent: C. Maxwell QC SOLICITORS : Appellant: John D. Weller & Associates Respondent: C.K. Smith CATCHWORDS : CRIMINAL LAW; appeal against conviction; sexual intercourse without consent - Crimes Act 1900 (NSW) s.61(1); miscarriage of justice; failure to call witness at trial; whether decision not to call witness within proper exercise of trial counsel's discretion ACTS CITED : Crimes Act 1900 Regina v Barben (1968) QWN 8 CASES CITED: Regina v Birks (1990) 19 NSWLR 677 Gallagher v The Queen (1985) 160 CLR 392 DECISION : Appeal dismissed 16 IN THE COURT OF CRIMINAL APPEAL 60164/97 SPIGELMAN CJ BELL J SMART AJ Wednesday, 12 May 1999 REGINA v Murray John ROBERTS JUDGMENT BELL J: 1 Murray John Roberts appeals against his conviction on an indictment charging him with sexual intercourse without consent contrary to s 61(1) of the Crimes Act 1900. 2 He was arraigned before his Honour Judge Ducker and a jury in the District Court at Lismore on 24 February 1997. On 4 March 1997 the jury returned a verdict of guilty. 3 The complainant, aged 23 years, gave evidence that she had been visiting her cousin who lived at the Gundurimba Mission near Lismore. 4 On Saturday 27 April 1996 she attended a christening celebration at Heritage Park in Lismore. 5 The appellant, a man aged about 50 years, had been known to her since childhood and she referred to him as "Uncle Goongi". He too attended the christening celebration. Around 4 or 5pm that afternoon the complainant asked the appellant if he would give her a lift back to the Mission. 6 The appellant was living in a house located at the Mission with relatives including a young man named Stephen Roberts. 7 The complainant got into the passenger side of the appellant's car, a Ford utility, and the appellant commenced driving towards the Mission. They were the only two in the car. As they approached the Mission the appellant drove past the turn off and the complainant asked him where he was going and told him to stop the car. He told her to "Shut up". 8 He drove down a dirt road to a deserted place known as Sandy Point. He got out of the car and walked around to the passenger side and opened the door. He took hold of the complainant by her arm and pulled her out of the car. The appellant carried the complainant some metres from the car and threw her down on some long grass. She was screaming and struggling. The appellant unzipped her jeans and pulled them together with her underpants off as she lay on her back. He said, "I want to stick my black cock in you". He held her down with one hand across her chest whilst he opened her legs with the other hand. He undid his pants and pulled them down to his knees. He put his head between the complainant's legs and put his tongue inside her vagina. This was the act of intercourse charged. 9 The complainant said to the appellant, "Stop, let me get up and get a smoke" and he allowed her to do so. 10 She walked towards the car and saw the keys were still in the ignition. She got into the car, wound up both windows and locked the doors. By the time she had completed this task the appellant was by the driver's side window punching it and calling out, "Fucking open the door". 11 The complainant turned on the ignition and drove off as fast as she could. The rear wheels of the car commenced to spin on the long grass and the car fishtailed. 12 The complainant said she did not see the appellant after the car started moving. She felt some bumps which she thought were pot holes or lumps or rocks on the road. She drove as fast as she was able to back to the Mission. 13 Once inside the Mission she stopped the car outside the house of Margaret Phillips, her cousin. She saw her nephew, David Phillips, and his girlfriend, Shannon Bundock, sitting on a small verandah at the front of the premises. 14 She got out of the car wearing only her shirt. She had no clothes on the lower part of her body. She ran inside the house and asked Shannon Bundock for some clothes. She complained to Shannon Bundock and to David Phillips that Uncle Goongi had just tried to rape her. 15 A few minutes later her cousin, Elizabeth King, arrived and she made a further complaint to her. She was observed by Shannon Bundock and Elizabeth King to be crying and apparently in a state of some distress. 16 It appears to be common ground that the appellant was run over by the car at Sandy Point on the afternoon of 27 April 1996. 17 It was his account that on the trip between Lismore and the Gundurimba Mission the complainant told him she wanted him to do her a favour. She said, "Keep on going, we'll drink these beers down the road. The boys drink too fast. I've got something to ask you". 18 After they had turned into the dirt road leading down to Sandy Point the complainant said, "I've got a stash of marijuana I would like you to pick up". The appellant said, "I never carry marijuana in this ute". 19 He continued driving and stopped the car in a cleared area near the river. He took a twist top out of a bag and had a sip of beer. The beer was warm and he started to feel sick. He got out of car and told the complainant that if she wished to get out it would be necessary to give the passenger side door a hard pull since there was difficulty with the locking mechanism. He then walked way from the car and vomited by the side of the road. 20 He heard the car engine start up and the car reversed for a distance. It then moved quickly towards him. It appeared to be out of control. He then saw it straighten up and come towards him. He was hit on the right knee and fell backwards. The car drove over the top of him and he lost consciousness. He came to shortly thereafter and was looking at the underside of the car. At that time the car was stationary. He heard the engine start and he called out, "Oh no". The vehicle drove off. He tried to sit up and blacked out again. When he came to he realised that he had injured his leg. He dragged himself to a nearby coral tree and spent the night sheltering under it. The following morning a fruit picker saw him and called an ambulance. 21 In answer to questions asked of him by both the ambulance officers and the police who attended at the scene at Sandy Point the appellant gave an account that he had been run over by a person whose identity was unknown to him in a car he was not able to describe. He later agreed that these had been lies. He said that he had realised that the complainant would be in trouble for running him over and he wished to speak with her before he decided what action he might take. 22 The notice of appeal in this matter was filed on about 4 April 1997 and it contained four grounds of appeal. Subsequently by letter dated 28 November 1998 a solicitor, John Weller, advised that it was proposed to amend those grounds of appeal by the inclusion of two additional grounds. Amended grounds of appeal were later filed pleading one ground only, namely: "That in all the circumstances, there has been a miscarriage of justice in that trial counsel declined to call the witness, Stephen Roberts, who was present at court during the trial and willing to give evidence on behalf of the defence. Such evidence was capable of supporting the testimony of the appellant and contradicting the testimony of the complainant." 23 Mr Wendler, who appeared for the appellant on the hearing of this matter, abandoned the four grounds filed as at April 1997 and indicated that the appeal would be argued on the sole ground arising out of failure to call the witness Stephen Roberts. No satisfactory basis has been advanced for the delay in raising this new evidence point on the appeal. 24 Mr Wendler has told us that there was some difficulty in obtaining a grant of legal aid to cover counsel's fees and indeed it appears that the solicitor presently retained in the matter is appearing on a pro bono basis. 25 The original grounds of appeal were filed by a solicitor who, it seems, had a grant of legal aid. Mr Wendler informed us that it was after advice was received, that those four grounds of appeal were without merit, that consideration appears to have been given to the issue of the failure to call the witness Stephen Roberts. 26 The court received the evidence, on the hearing of the appeal, of Stephen Roberts who adhered to the contents of a statutory declaration affirmed on 18 February 1999. The appellant and Ms Stavrou also gave evidence supplementing the contents of statutory declarations affirmed by them on 28 February 1999 and 24 March 1999 respectively. 27 Stephen Roberts is a young man who was living with his parents and the appellant at the Gundurimba Mission on 27 April 1996. It is his evidence that on that day in the late afternoon he saw the complainant driving his Uncle Goongi's white ute recklessly up the road past his house. He ran down the hill following the car. He saw the complainant get out of vehicle and run up the steps of cottage. He observed that she was wearing a shirt and pants. In evidence he was cross-examined as to his recollection of the appearance of the pants. He was not able to describe them beyond saying that they were long pants and that they were not the pants depicted in a photograph showing green stone-washed jeans which were located by police at the scene. 28 It was Stephen Roberts' account that two persons, Ben King and a woman named Aunty Lil, were on the verandah of the house at the time he saw the complainant get out of the car and run towards it. He had a conversation with her in which he said, "Charmaine, where's Uncle Goongi?" To which she replied, "He's still at the back hitching with a white guy". Stephen then asked Ben King to drive the utility back to his house. 29 The complainant ran back behind the utility and got in the back saying, "Give me a lift down town". Stephen said to her, "Get out, I'm not driving down there". She got out of the utility and returned to the cottage. 30 In paragraph 21 of the statutory declaration the witness stated, "I pulled up the handle on the passenger side door and it would not open from the outside so I didn't bother to lock it." 31 The following day, Sunday 28 April 1996, Stephen Roberts saw police at the Gundurimba Mission and told them of his observations of the complainant at the time she returned driving the utility. He said that he spoke to several police officers about those observations on that day and on subsequent occasions. On one occasion his mother, Ailene Roberts, and his father, Steven Roberts, took him to the Lismore Police Station where he made a statement. A detective told him he was too young to give evidence and that his information was not needed. 32 He said that he did not tell the appellant about this information because the appellant was in hospital for a long time and by the time he was discharged from that hospital he, Stephen, was away a lot boxing. 33 Whilst the trial was still proceeding Stephen's mother took him to the court house. She and he had become aware that it was the complainant's allegation she had been dragged out of the passenger side door of the utility by the appellant. It was also clear that the complainant was alleging she did not have her pants on at the time she returned to the Mission. 34 Stephen spoke at the court with his Uncle in the presence of Mr Gelbert, trial counsel. It is his account that Mr Gelbert said that it was too late and that his evidence was not needed. 35 The appellant, who also gave evidence on the hearing of this appeal, said that Mr Gelbert had advised him, "We can't use Stephen at this stage, it is just too late. I will win this case and not you." The appellant denied that there had been any other discussion as to the difficulties that calling Stephen late in the day might cause in the conduct of his case. 36 Stephen Roberts denied speaking directly with Mr Gelbert. He had spoken to the appellant at the court house and at that time Mr Gelbert was nearby. That is in contrast with the recollection of Mr Gelbert who gave evidence that he had a conference with the witness Stephen Roberts at the court house. 37 The appellant in his statutory declaration affirmed on 28 February 1999 in paragraph 13 said this: "I was standing next to Stephen Roberts (jnr) when he told the Barrister that he had seen Charmaine Harris arrive back at Gundurimba Aboriginal Reserve dressed in a top and trousers, that he knew that the passenger side door of my vehicle would not open on 27 April 1996, and that he had told the police about Charmaine coming back to Gundurimba." 38 In his evidence the appellant said the above paragraph contained a mistake; Stephen Roberts had spoken to him, not Mr Gelbert, but that since Mr Gelbert was close by he expected he would have heard the contents of the conversation. 39 Kathy Stavrou gave evidence that she was present when Stephen Roberts spoke with the appellant in the hearing of the barrister. She recalled the barrister saying it was too late. She was cross-examined to suggest she may be biased against Mr Gelbert and, as I understand it, the Legal Aid Commission generally, and to the effect that her strong views on the plight of Aboriginal people may have clouded her judgment. I do not consider a great deal turns on the differing recollections of the participants as to the circumstances of the discussion at which both Stephen Roberts and Mr Gelbert were present. 40 It is clear that Mr Gelbert became aware, during the course of the trial, that Stephen Roberts had information about the complainant's return to the Mission on the afternoon of this incident. It appears that Mr Gelbert made a tactical decision not to call Mr Roberts. The issue is whether the decision was within the proper exercise of trial counsel's discretion. 41 There was an additional issue as to whether Mr Gelbert was made aware that Stephen Roberts was able to give evidence that he had tried the passenger side door handle on the afternoon of 27 April 1996. 42 It was Mr Gelbert's evidence that if he had been told of that matter he would have given serious thought to calling Stephen Roberts. He agreed that the locking mechanism on the passenger side door was a central issue. He was cross-examined to establish whether he denied that he had been given any such information or merely that after the passage of time he had no recall of it. He replied to this question by observing that it was unusual to have a witness coming forward at the eleventh hour and that it was his memory that Stephen Roberts did not tell him that he had tested the door handle on that day. 43 Generally Mr Gelbert deposed to the following matters in his affidavit sworn on 5 May 1999. In January or early February 1997 he was briefed to appear on behalf of the appellant at his trial. At the time of preparing the affidavit he did not have access to any notes or other material that might assist in his recollection. However, he did have a good working memory of the trial. After speaking with Stephen Roberts he formed the view that the evidence of Stephen Roberts was something of an anomaly. No other person present at the Mission that day supported Roberts' observations. 44 In cross-examination Mr Gelbert observed that, without wishing to be pejorative, he had formed the opinion that Stephen Roberts would not be an overwhelmingly convincing witness. It was Mr Gelbert's view that Stephen Roberts' evidence would, at best, be viewed as a red herring or, at worst, might discredit the defence case in that it might be viewed as an attempt by the defence to deceive the jury. 45 On the hearing of this appeal it was contended that Mr Gelbert's decision not to call Stephen Roberts demonstrated incompetence. Mr Wendler relied, among other things, on the decision of the Queensland court in R v Barben (1968) QWN 8. He submitted Stephen Roberts was a material witness and the failure to call him had caused a miscarriage of justice. 46 It is necessary for Mr Wendler, in order to succeed on this ground, to demonstrate that the decision not to call Stephen Roberts was outside the proper exercise of trial counsel's discretion such as to bespeak the sort of flagrant incompetence with which this court was concerned in R v Birks (1990) 19 NSWLR 677. Further, it would need to be shown that the evidence was relevant, credible and cogent, such that there is a significant possibility that a jury acting reasonably would have acquitted the appellant had that evidence been before it; Gallagher v The Queen (1985) 160 CLR 392. 47 I propose dealing firstly with the question of the relevance of the evidence. 48 The evidence as to the locking mechanism on the passenger side door of the appellant's utility assumed some significance in the way the trial was conducted. 49 It was the complainant's account that when she first got into the utility at Heritage Park the two front doors of the vehicle were open. Thereafter, when the utility came to a halt at Sandy Point the appellant got out of the driver's side door, walked around to her door, opened it and pulled her out of the vehicle. 50 It was the appellant's case that the passenger side lock was defective, that the door could not be opened by use of the outside door handle. It was possible to open the door from the inside but only by the application of some force. 51 At the trial the appellant gave evidence of these matters and called evidence from Kathy Stavrou and her daughter Rebecca. Both had travelled out in the utility on Anzac Day 1996. As at that date the passenger side door lock was defective and required considerable force to open it from the inside. 52 A further witness, Inge Reibe, an anthropologist, had travelled in the vehicle with the appellant about a week prior to the incident. She had noted the defective locking mechanism. 53 In the Crown case Ben King, a resident of the Mission, gave evidence that he drove the vehicle during the course of Saturday 27 April. He had given a lift to a man named Sam Roberts. He had not noticed any difficulties when Sam Roberts got in or out of the passenger side of the vehicle. 54 Despite the importance of this issue neither defence counsel nor the Crown Prosecutor asked any questions of the complainant to determine whether the passenger side window was open or closed at the time the vehicle came to a halt at Sandy Point. It was an inference open, on the Crown case, that the window was down since the complainant gave evidence of winding up both windows when she first got into the car following the assault. The complainant was not asked how the appellant opened the passenger side door in the moments immediately prior to dragging her from the vehicle. 55 I consider that it was open to the jury to accept the reasonable possibility the door could not be opened from the outside but to consider that the appellant had put his hand through the open window and manipulated the inside handle in order to open it. On this view the question of whether there was a defective locking mechanism might be thought to be somewhat academic. This was the way the trial judge put the issue to the jury during the course of his charge. 56 Even if the evidence of Stephen Roberts on this issue was "fresh" evidence, in the sense of evidence which was not available at the trial, I do not consider that it is evidence such as to attract the intervention of this court in the circumstances discussed by the High Court in Gallagher. I do not consider there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had this evidence been before it. 57 It is necessary to outline some further aspects of the evidence concerning the complainant's return to the Gundurimba Mission in order to address the issues raised by the balance of the evidence which Stephen Roberts might have given. 58 Ben King gave evidence that he saw the complainant driving into the Mission at about 4.30pm. He observed she was driving the vehicle fast. He did not notice anything about the clothes she was wearing. He saw Stephen Roberts go into Margaret Phillips' house and collect the keys to the utility from the complainant. 59 David Phillips said he saw the complainant get out of car and run inside the house. She was crying and she had no pants on. He remembered that she was trying to cover herself. 60 His girlfriend, Shannon, gave evidence that the complainant returned to the Mission driving the white ute really fast. Shannon observed that the complainant was drunk and that she was wearing only her shirt. She started crying as she complained to Shannon that the appellant had tried to rape her. 61 Police attended the scene at Sandy Point the day after the incident, on Sunday 28 April, where they found a pair of green stone-washed jeans with underpants intertwined in them. In the rear pocket of the jeans was a plastic bank card in the complainant's name. The complainant identified the jeans and underpants as belonging to her during the course of her evidence. There was no challenge to any of this evidence. 62 It was the appellant's case that the complainant had panicked after running him over and had herself removed her jeans and underpants and left them at the scene, apparently with a view to making a false allegation that she was the victim of a sexual assault. This proposition was put squarely to the complainant in the course of her cross-examination on 25 February 1997. In these circumstances it is not surprising that the witnesses David Phillips and Shannon Bundock were not tested as to their recollection that the complainant returned to the Mission wearing only a shirt. 63 The trial Judge in the course of his summing-up noted that the evidence as to the complainant's distress was equally consistent with a view that she was experiencing the turbulent emotions that might be expected to follow an incident such as drunkenly running over her uncle. 64 The evidence of Stephen Roberts as to the complainant's appearance at the time she returned to the Mission would have stood in stark contrast to that of David Phillips and Shannon Bundock. The Stephen Roberts account served to undermine the approach adopted by the appellant's counsel during the trial, namely, the contention that the clothing had been deliberately placed at the site in an effort to create a false allegation against the appellant. 65 I do not consider that there is a significant possibility that the jury acting reasonably might have acquitted the appellant if the evidence as to the complainant's appearance and state of distress was before it. 66 On Stephen Roberts' account both his Aunty Lil and Ben King were on the verandah of the house at the time he spoke to the complainant when she said of the appellant, "He's still down at the back hitching with a white guy". No evidence was given of this conversation by Ben King. The woman, Aunty Lil, was not called. No evidence has been led from her on this appeal. 67 In the light of the evidence concerning the complainant's return to the Mission and in particular to the fact that on her account she had told people that she expected her Uncle Goongi to come walking back to the Mission, I do not consider that the evidence of the conversation has sufficient relevance to enable the appellant to succeed on this ground. Again I do not consider that there is a significant possibility that the jury acting reasonably would have acquitted the appellant had the evidence been before it. 68 Trial counsel has a wide discretion as to the manner in which proceedings are conducted; as to what witnesses to call and the lines of argument to be pursued; Regina v Birks (1990) 19 NSWLR 677. The principles upon which this court will intervene in the case of a miscarriage of justice arising out of the conduct of a trial counsel are set out in that case at p.685: "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." 69 I consider that the facts of this case fall far short of meeting the test in Birks. 70 Trial counsel decided not to call Stephen Roberts for tactical reasons. I consider that decision was open to him in the exercise of his discretion. 71 I would propose that the appeal be dismissed. 72 SPIGELMAN CJ: I agree. 73 SMART AJ: I also agree. 74 SPIGELMAN CJ: The order of the court is the appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.