Appeal Outcome: Special leave dismissed by the High Court - 2 December 2008 - [2008] HCASL 575 New South Wales Court of Criminal Appeal CITATION: ALRAMADAN v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2007] NSWCCA 322 HEARING DATE(S): 30 August 2007 JUDGMENT DATE: 23 November 2007 JUDGMENT OF: Basten JA at 1; Latham J at 60; Rothman J at 61 (1) Grant leave to appeal against conviction, if required. DECISION: (2) Dismiss the appeal. CATCHWORDS: CRIMINAL APPEAL – rejection of expert evidence tendered by accused – relevance of expert evidence – miscarriage of justice – operation of proviso – Criminal Appeal Act 1912 (NSW) s 6(1) - EVIDENCE – expert evidence – relevance – basis of rejection – Evidence Act 1995 (NSW), ss 55, 79 and 80. Crimes Act 1958 (Vic), s 568 LEGISLATION CITED: Criminal Appeal Act 1912 (NSW), ss 5, 6 Evidence Act 1995 (NSW), ss 46, 55, 56, 79, 80, 135, 137 Bray v Ford [1896] AC 44 Conway v The Queen (2002) 209 CLR 203 Darkan v R (2006) 227 CLR 373 Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373, (2006) 165 A Crim R 151; (2006) 205 FLR 217 Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 M v The Queen (1994) 181 CLR 487 CASES CITED: MFA v The Queen (2002) 213 CLR 606 MWJ v The Queen (2005) 80 ALJR 329 R v Birks (1990) 19 NSWLR 677 R v Grills (1910) 11 CLR 400 R v Liristis [2004] NSWCCA 287, (2004) 146 A Crim R 547 Rend v The Queen [2006] NSWCCA 41, (2006) 160 A Crim R 178 Weiss v The Queen (2005) 224 CLR 300 Williams v The Queen (1986) 161 CLR 278 PARTIES: Rafid Ghani Alramadan - Applicant Director of Public Prosecutions (NSW) - Respondent FILE NUMBER(S): CCA 2007/3316 COUNSEL: S.J. Odgers SC - Applicant D.M.L. Woodburne - Respondent SOLICITORS: P.J.N. Moffitt - Applicant S. Kavanagh, Solicitor for Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/71/0045 LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ LOWER COURT DATE OF DECISION: 25 January 2007 IN THE COURT OF CRIMINAL APPEAL CCA 2007/3316 DC 06/71/0045 BASTEN JA LATHAM J ROTHMAN J 23 November 2007 Rafid Ghani ALRAMADAN v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) Headnote The Appellant was a medical practitioner carrying on a general practice in central New South Wales. The complainant was a female patient of the Appellant who claimed that when she visited his surgery on 8 December 2005, the Appellant administered a stupefying drug and had non-consensual intercourse with her. The Appellant was convicted by a jury of administering a stupefying drug, committing an act of indecency in circumstances of aggravation and having non-consensual intercourse in circumstances of aggravation. The Appellant was sentenced to a non-parole period of 10 years imprisonment, with a balance of 2 years. The Appellant appeals against his convictions on the basis that the trial judge erred in rejecting the evidence of two expert witnesses sought to be called by the Appellant. The issues for determination on appeal were: (i) whether the trial judge erred in rejecting the evidence of Dr Nicholls and Dr White; (ii) if required, whether leave should be granted; and (iii) the application of the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW). The Court held, dismissing the appeal: In relation to (i) (per Basten JA, Latham and Rothman JJ agreeing) 1. The evidence of Dr Nicholls was evidence that was relevant for the purposes of s 55 of the Evidence Act 1995 (NSW), although in a practical sense the probative force of the proposed evidence was likely to be limited. No persuasive reason was given for the rejection of his evidence: [29], [33], [67]. 2. The evidence of Dr White was relevant and no sound reason was articulated for rejecting it: [44], [67]. (per Rothman J) 3. The trial judge erred in rejecting, in advance, the evidence of Dr Nicholls and Dr White, which was relevant and may have been highly probative: [62]-[64]. 4. There was a wrong decision on a question of law, namely, whether the evidence sought to be adduced was admissible and whether the trial judge was entitled to reject the evidence. Alternatively, the rejection of the evidence was a miscarriage of justice in that relevant evidence upon which the Appellant sought to rely was not permitted to be adduced: [71], [72]. In relation to (ii) (per Basten JA, Latham J agreeing, Rothman J dissenting) 5. The trial judge was in error in rejecting the evidence of both Dr Nicholls and Dr White. The error not being one of law alone, leave should be granted, if required: [44]. Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 referred to. (per Rothman J) 6. The ground of appeal does not involve "a question of law alone" and leave of the Court is necessary: [69]. Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318 referred to. 7. It was the oral evidence of Drs Nicholls and White which were irregularly excluded, not their reports. The Court should have had before it the evidence that would have been adduced, for the purpose of making the assessment required by the proviso to section 6(1) of the Criminal Appeal Act. Leave to appeal should be refused: [81]. M v The Queen (1994) 181 CLR 487; MFA v The Queen (2002) 213 CLR 606; Darkan v R (2006) 227 CLR 373 referred to. In relation to (iii) (per Basten JA, Latham and Rothman JJ agreeing) 8. On any view of the operation of s 6(1) of the Criminal Appeal Act 1912 (NSW), the Appellant must establish error in relation to the trial and, that being established, the Court must consider the application of the proviso, with its emphasis upon a substantial miscarriage of justice in the trial as it actually occurred: [12], [72]. Conway v The Queen (2002) 209 CLR 203; Weiss v The Queen (2005) 224 CLR 300; Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151; (2006) 205 FLR 217 referred to. 9. When the evidence is assessed as a whole, taking into account the fact of the jury's verdict, it is open to the Court to conclude that there was no substantial miscarriage of justice: [57], [58], [80]. Weiss v The Queen (2005) 224 CLR 300 applied. (per Basten JA, Latham J agreeing, Rothman J dissenting) 10. The rejected evidence could not have had a significant effect on the jury's assessment of the Appellant's credibility and would have had no bearing on the outcome of the trial. The appeal should be dismissed: [44], [59]. (per Rothman J) 11. In applying s 6(1) of the Criminal Appeal Act, the distinction between the third basis requiring the upholding of the appeal ("miscarriage of justice") and the proviso must depend on the addition of the word "substantial". The proviso falls for consideration when there was some irregularity at trial. There was such irregularity in this trial: [75]-[76]. Weiss v The Queen (2005) 224 CLR 300; Bray v Ford [1896] AC 44 considered. Conway v The Queen (2002) 209 CLR 203, referred to. IN THE COURT OF CRIMINAL APPEAL CCA 2007/3316 DC 06/71/0045 BASTEN JA LATHAM J ROTHMAN J 23 November 2007 Rafid Ghani ALRAMADAN v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) Judgment 1 BASTEN JA: On 12 September 2006 the Director presented an indictment against the Appellant containing three counts. The Appellant was a medical practitioner carrying on a general practice at Grenfell in central New South Wales. Each of the counts related to a course of conduct involving an aggravated sexual assault which was alleged to have taken place at the Appellant's surgery on 8 December 2005. He was convicted on each count and appeals against those convictions. Background 2 The complainant was a 50-year-old female patient of the Appellant who said that she had been telephoned by the Appellant, asking her to come to his surgery to collect a driver's licence which she had left there on Monday, 5 December. When she arrived, the Appellant was there alone and there was a "closed" sign on the door. She entered and collected her licence, and asked the Appellant if he had time to give her a cortisone injection for rheumatoid arthritis in her right knee. The Appellant asked her if she wanted something for the pain, to which she assented, but instead of giving the expected local anaesthetic, he administered a stupefying drug, namely diazepam. That was the basis of the first count on the indictment. 3 At the time she was given the injection, the complainant was lying on the examination table in the surgery, having removed her trousers in order to allow the Appellant to administer the injection to her knee. The Appellant then tried to kiss her, fondled her breasts through her bra and rubbed her vagina through her underpants. The latter two actions constituted the third count of committing an act of indecency in circumstances of aggravation, the Appellant being her treating doctor. 4 The effect of the diazepam was to relax her whole body so that she felt physically drained of strength. The Appellant, she said, then climbed onto the examination table, knelt between her legs, having pushed her legs apart with his right knee and had intercourse with her. This was the subject of the second count on the indictment, namely having non-consensual intercourse in circumstances of aggravation, those circumstances again being the Appellant's position as her treating doctor. 5 At trial, the Appellant was convicted by a jury on each count. On 25 January 2007 the trial judge, Puckeridge DCJ, sentenced the Appellant on the most serious count to a non-parole period of 10 years imprisonment, commencing on 28 September 2006 (the date of the jury's verdict) with a balance of two years. No complaint is made about the sentences imposed. 6 On the appeal, there is a challenge to the conviction of the Appellant on the basis that the trial judge was in error in rejecting the evidence of two expert witnesses sought to be called by the Appellant. The first witness was a Dr Alan Nicholls, an orthopaedic surgeon who had examined the Appellant on 30 August 2006. The second was a Dr Bernadette White, an obstetrician and gynaecologist. In order to appreciate the relevance of their evidence, it will be necessary to say something more about the course of the trial and the position taken by the Appellant at the trial. 7 The Director contends that there was no error on the part of the trial judge in rejecting the evidence of the two witnesses, but says that even if there were error, the Court should be satisfied that no substantial miscarriage of justice actually occurred and that, accordingly, the Court should exercise its discretion to dismiss the appeal, pursuant to the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW). Approach to question of error 8 Counsel for the Appellant sought to argue that the exercise required of the Court on the appeal was a three stage process. He derived that from the language of s 6(1) of the Criminal Appeal Act. Although part only of that provision is relevant for present purposes, it is convenient to set it out in full, so that the relevant words can be read in their context. " 6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 9 This was not a case in which it was contended that the verdict was unreasonable or unsupportable having regard to the evidence. Rather the challenge was based upon a wrong decision with respect to the tender of evidence. Accordingly it was argued that the three stage process involved the Court forming an opinion that: (1) there was a wrong decision on a question of law; (2) the judgment of the Court of trial should be set aside for that reason, and (3) no substantial miscarriage of justice had actually occurred. 10 A number of the semantic difficulties with this provision were discussed by the High Court in Weiss v The Queen (2005) 224 CLR 300 at [10], in relation to a substantially similar, though not identical, provision, being s 568(1) of the Crimes Act 1958 (Vic). (See also the discussion in Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151; (2006) 205 FLR 217 at [49]-[57].) 11 In the present case, it was not explained how the adoption of a three stage process assisted the Appellant. If it were insufficient for the Appellant merely to establish error in the rejection of evidence (being stage one), so that he also had to establish that the error was sufficient to require that the judgment of the Court below, based on the verdict, "should be set aside", it might appear that the Appellant was taking upon himself the task of negativing the proviso, at least in part. Absent the proviso (to be dealt with at stage three) the second stage might have been treated as a basis for rejecting immaterial errors and thus qualifying the obligation to allow the appeal contained in the opening words of the provision, so that it would not operate, in the absolute terms of the so-called "old Exchequer rule" discussed in Conway v The Queen (2002) 209 CLR 203 and in Weiss at [18]. 12 On one reading of the provision, there is only a two stage process. On that approach, all of the grounds upon which an appeal shall be allowed are qualified to the extent that they must be capable of constituting a miscarriage of justice. That may mean there is no bright line to be drawn between the operation of the preconditions to allowing an appeal, as set out in the first part of the provision, and the operation of the proviso. On any view, the Appellant must establish error in relation to the trial and, that being established, the Court must consider the application of the proviso, with its emphasis upon a substantial miscarriage of justice in the trial as it actually occurred. 13 There is no need to say anything further about the Appellant's submissions; as will be seen below, the evidence was wrongly rejected because it was relevant and admissible. Whether the rejection of either witness, or even both, gave rise to a miscarriage is questionable. However, the case should be approached on the basis that the errors are sufficient to engage the operation of the proviso. That is how the matter will be approached, even if it is arguably generous to the Appellant. The evidence of Dr Alan Nicholls 14 Before considering the substance of Dr Nicholls' proposed evidence, it is necessary to give some further explanation of the issues which arose at the trial. As noted above, the prosecution case asserted that the Appellant had had intercourse with the complainant whilst she was lying on the examination table in his surgery. He denied that any such sexual activity took place. On the complainant's evidence, when the Appellant's hand moved to the area of her vagina, she had sought to resist him, despite the effect of the muscle relaxant, by crossing her legs at the ankle. He had then kneeled on the examination table and pushed her legs apart with his right knee. The Appellant not only said that this did not occur, but said that he had physical disabilities which would have prevented him undertaking such an action. 15 The indictment was presented on Tuesday, 12 September 2006, but a voir dire followed, as a result of which the complainant was not called to give evidence until after lunch on the second day, 13 September. Her evidence continued into the next morning, the critical cross-examination as to the sexual activity occurring on the following day. Counsel for the Appellant commenced by putting to the complainant a quite different account from that which she had given in evidence-in-chief, which was substantially the account later given by the Appellant. Briefly, that account involved the complainant moving over to the Appellant, who was seated at his desk in the consulting room, kissing and hugging him and attempting to sit on his lap. She then sought to show him a lesion on the front of her thigh, which she was concerned might be inflamed. She then sat on his lap and masturbated him. For some reason which remained obscure, the Appellant then obtained a condom from a drawer in his desk and after a short time ejaculated into the condom. She then removed the condom and tried to place his flaccid penis inside her vagina. No further sexual activity took place, but she complained of an inflexible right knee, for which the Appellant gave her an injection of diazepam. 16 The complainant denied each aspect of this account. She was then cross-examined as to the account she had given in chief. In particular, the following exchanges took place (Tcpt, 15/09/06, pp 28-29): "Q. You did cross your legs? A. I did cross my legs but I had – I had no strength to keep them crossed and he just opened them with his hand, there's just – there was no strength there to hold them together. I tried squeezing them together. By this time I had no, no strength no – I – I was conscious of what was going on but I had no strength. Q. Did you say anything to him at about this time? A. I just kept saying 'Please don't do this'. Q. What happened next? A. He climbed on top of the table, he knelt between my legs. Q. He climbed on top of the table? A. Yes. Q. Did you see how he did that, did he use the steps? A. No I didn't see how he did that. Q. So next minute he's climbed on top of the table is that right, this is the examination table? A. Yes. Q. You're lying down? A. Yes. … Q. And he's lying on top of you with his face towards your face, is that right? A. No, he's actually kneeling. Q. He was kneeling. A. He was kneeling between my legs at that stage. Q. Well just pausing there for a moment. When he got onto the examination table you had your legs together, or crossed? A. Crossed. Q. And I take it that when you say 'crossed' you mean crossed at the ankles? A. That's right. … Q. When he climbs up he doesn't lie down on top of you, but he kneels between your legs, is that right? A. He uses his knees to uncross my legs. Q. And I take it he had some difficulty uncrossing your legs with his knees initially? A. No. Q. No? A. No. I didn't have the strength to hold them together. Q. So he used both his knees to force your legs apart, is that what you say? A. He used one knee to start with. Q. Do you know which one that was? A. His right knee. Q. And then he used his left as well, is that what you're saying? A. Yes, and he just positioned his left knee in the same place as his right knee was. Q. So we now have a situation where you have your legs apart, he is kneeling on the examination table between your legs, is that right? A. That's right. Q. At that stage was his – the top of his body was that erect, or was it leaning over you, or what was the situation? A. It looked like he was sitting, like on his feet. Q. So, okay, he is kneeling between your legs, but he appeared to be leaning back on his legs, is that right? A. On his – yes." 17 The Appellant gave evidence that he had an injury to his left leg as a result of a car accident which occurred in Iraq in 1990. He said that the injuries included a fracture and widening of the gap in the pelvic bone, two fractures in his left thigh and a fracture in his knee which resulted in the removal of his kneecap: Tcpt, 25/09/06, pp 36-37. He also had a fracture in his left ankle and an injury which prevented him moving his big toe. He then gave the following evidence: "Q. Those injuries, how do those injuries restrict your movement if at all? A. Now I move only on full extension. Q. What do you mean by that? A. I mean I can't flex the knee when I walk; just on full extension, always like this. Q. I see, so you can't flex your knee? A. No. Q. It's like stiff straight, is that what you mean? A. Stiff, but always on the – because there is no muscle, no, in the front of both of the – of my thigh. … Q. … Do those injuries affect or restrict you in climbing? A. Yes. Yes. … Q. And in relation to walking, are your movements restricted? A. Yes. Q. In what way? A. As I said, I can't extend my knee, even if I sit like this, so I can't extend my knee up, and also the flexion, because there's calcification of the joint and I can't bend on the knee because of the ulcer." 18 The Appellant was then asked to leave the witness box, and show the jury the injuries to his left leg. In doing so, it was recorded that he was "lifting his knee up and flexing": p 38 (37). He explained that he could bend his knee but not extend it. He was then asked further questions in chief (at p 41): "Q. In relation to your left knee, what strength do you have in the left knee to move objects with your left knee? A. I've got no muscle in the knee. Q. What strength do you have to move objects with your left knee? A. I can't move it. Q. Can't move what? A. I can't move anything, I mean this one the right … Q. But you can't move anything with your - A. But the left I can't lift it at all." 19 Immediately following that, at the commencement of the cross-examination, he gave the following evidence (pp 41-42): "Q. Doctor, you were just telling us a bit about your left knee and the injury that you suffered to that in 1990, have I got that right? A. Yes. Q. You have nothing wrong with your right knee, is that right? A. No. Q. And you are able with your right knee to place your right knee onto a table, or anything of that sort, can you do that, with your right knee – by putting your right knee on a table you can lift yourself onto the table can't you doctor? A. Yeah, but need to put my hands because I can't stand up on this alone. Q. Listen to my question doctor. By using your right knee, if you put your right knee, let's take the examination table, if you put your right knee on the examination table and with your hands you can lever yourself onto the table can't you? A. I'm not, I'm not done before, I don't know." 20 There was further questioning and demonstration as to his abilities to walk and climb steps. He gave the following further answers (pp 44 and 46): "Q. But the flexion you're talking about is bringing your left leg forward isn't it, bringing it forward of the body, you've demonstrated that you don't have a problem bringing your knee, your left knee back? A. Yes. … Q. … Now please, for the members of the jury would you, with your bad knee, bring your leg back up? You do that quite easily? A. That's the maximum. Q. But you can do that quite easily, you walk up the steps bending your knee, can't you? A. This is the maximum flexion." 21 The prosecutor then sought to give a description of the demonstration in the Court (which was agreed to by counsel for the Appellant) (at p 46 (40)): "First I asked the doctor to … bend his left leg which he did, he brought the lower part of his leg up towards his buttocks area, I suppose, or thigh area. And then he demonstrated after that with his left knee bringing his knee up and having problems with that, I think, and bringing it in in a – I suppose, a reverse L shape in front of his body." 22 Further evidence consistent with that of the Appellant, was sought to be led from Dr Nicholls. In a two page letter to the Appellant's solicitors he noted that he had interviewed and examined the Appellant, at the request of the solicitors, on 30 August 2006, some two weeks before the commencement of the trial. He then set out the results of his examination and his comments on functional impairment resulting from the injuries noted. 23 The first part of the letter referred to the injuries of which the Appellant gave evidence. Some of the description is expressed to be findings on examination, but most is clearly a record of the history given by the Appellant. For example, Dr Nicholls reported, in relation to the fractured left kneecap, that "[s]ince the motor vehicle accident there has been a persistent infection in the area of the patella requiring a dressing". How he came to that opinion is not identified. The substance of the evidence, however, sought to be relied on was presumably not the descriptive part of his report, but his opinion which was expressed in two parts and may be set out in full: "There is marked residual impairment of left leg function. The major impairment arises from virtual paralysis of the quadriceps muscles of the left thigh, which in addition to excision of the patella has effectively made the left knee 'flail'. This means that it is very difficult for Dr Rafid [sic] to climb stairs because of complete loss of stability once the knee is flexed. Getting on and off an appliance at height requires assistance either from the arm or the right leg to lift the flail leg up and it would be difficult to manoeuvre the leg once the knee is flexed. With normal walking on the flat the knee is held or thrown into a fully straightened position to lock the knee joint and give some stability. You have asked me to comment on any impairment of leg function in the type of activities claimed. Firstly I would comment that it would be very difficult to get onto an examination couch, which is 85 cm from the floor because of the need for assistance in getting the left leg onto the couch. General mobility on a narrow couch would be much reduced and with another person involved I believe this would require a certain amount of cooperation to position Dr Rafid's injured leg. There is minimal strength in manoeuvring the left leg once the knee is in a flexed position, such as when kneeling because of the lack of control over knee joint movement. I believe it would be very difficult, if not impossible, to manoeuvre Dr Rafid's left leg in the manner claimed with a normally strong adversary in a confrontational situation. With a degree of resistance on the part of the other party I think Dr Rafid's comment that 'it is quite likely I would have fallen off because of lack of control over the left knee' is valid." 24 If evidence were to be given in this form, one could anticipate a number of objections. Thus, there is a lack of clarity in relation to those opinions which depend on physical examination, those which depend on historical reporting and those which may depend on some form of testing, although there is no reference to any testing of capabilities. On the other hand, it is clear from the Appellant's evidence at trial that he had never attempted to get onto an examination couch and kneel on it in the manner described by the complainant. Accordingly, it may be inferred that Dr Nicholls did not have an opportunity to observe such an activity. 25 More importantly, there is no indication of what manoeuvre Dr Nicholls was commenting on in the last paragraph of his report. If he thought that the Appellant was faced "with a normally strong adversary in a confrontational situation" he was misinformed. At the very least, that comment could have no relevance in the context of the trial. The same comment may be made in relation to the last statement which involves reference to "a degree of resistance on the part of the other party" and a comment of the Appellant which was not given at trial. 26 It remains to consider the manner in which this evidence was proffered and the basis of its rejection, as recorded in the transcript of argument, no separate reasons being delivered. Directly after the lunch adjournment on the penultimate day of the hearing, being Monday, September 25, counsel for the accused, who was then under cross-examination, noted that he intended to call Professor Starmer, a pharmacologist, to comment on the quantity of diazepam which was found in the complainant's blood, in response to the evidence of Dr Perl, who had given evidence as to that matter in the prosecution case. The discussion continued between Mr Walsh, counsel for the accused, the prosecutor and the trial judge (Tcpt, 25/09/06, pp 52-55): "WALSH: … The other two [proposed] defence witnesses, there's an orthopaedic surgeon in relation to the accused's leg – HIS HONOUR: What would be the relevance of that? CROWN PROSECUTOR: I'd be objecting to it anyway. WALSH: Well, because he would be saying about the movement and what he found on examination. HIS HONOUR: He can't say anything more than what the accused has said. WALSH: Well he's giving a medical opinion, your Honour. HIS HONOUR: Well it's not relevant. How can it be of assistance? WALSH: Well, in my respectful submission it'd be of enormous assistance. HIS HONOUR: Why? WALSH: Well because he's giving a medical opinion. This is just the accused giving his own opinion. HIS HONOUR: He's given it, he's the person who has the restriction. He's the person who said, 'Yes, well this is what's happened to me.' There is no doctor can advance that situation. WALSH: Well I hear my friend opposes that. Does your Honour not allow me to lead that evidence? HIS HONOUR: Well, by all means if you had the report from the orthopaedic surgeon you can hand it up. I will look at the report. But I would consider that a report by an orthopaedic wouldn't be relevant because he has given the evidence and that is the evidence. He doesn't have to corroborate it. And the danger is, Mr Walsh, that you might move away from the situation which I will have to inform the jury that the accused does not have to prove anything." 27 Discussion continued at the end of the day, when Mr Walsh handed up a copy of Dr Nicholls' report. The following exchange took place in closed court (see separate transcript, pp 2-5): "HIS HONOUR: The difficulty is, is that he simply says this means that it's very difficult for Dr Rafid to climb stairs because of complete loss of stability once the knee is flexed … . But as I see it, as I understand from the demonstration by the accused himself, he's already demonstrated that and that's the evidence, and you could not put anything to the contrary. He has that difficulty." It became apparent that it was the prosecution who could not put anything to the contrary. Counsel for the accused contended that, although the accused did not have to prove anything, the "evidence of an expert in relation to Dr Alramadan's, leg and knee problems assist the accused to raise a doubt in the mind of the jury as to his ability; one, to climb onto the examination table; secondly, to separate the legs of the complainant with his knees". 28 The reasons for rejection of Dr Nicholls as a witness, can only be inferred from his Honour's remarks in the course of argument with counsel. From these remarks, as often occurs, a change in emphasis can be divined as the argument progressed. Before he read the report, it appears that his Honour was concerned that it might be difficult to direct the jury as to the burden of proof, if the accused had sought to raise, by independent expert evidence, a positive defence. Secondly, there appears to have been a concern that the prosecution could not respond to the evidence, either because it was consistent with that of the accused and had not been challenged in cross-examination of the accused, or because contrary evidence would involve splitting the prosecution case. At a practical level, the perceived problem may have been that the prosecution would never be in a position to call evidence in rebuttal because no orthopaedic surgeon had witnessed the demonstration in Court or heard the accused's evidence and there was no procedure whereby, during the trial, it would be possible to have another orthopaedic surgeon examine the accused, even if he consented. 29 Unless the jury accepted that intercourse took place in the manner asserted by the complainant, the Appellant must have been acquitted. Even though the evidence of the Appellant, taken together with the proposed evidence of Dr Nicholls, did not establish impossibility, it tended to show a degree of physical difficulty. The evidence of the accused that his physical disabilities rendered the account given by the complainant implausible was clearly evidence that "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding" for the purposes of s 55 of the Evidence Act 1995 (NSW). There is no reason to suppose that evidence from Dr Nicholls would not have been relevant in precisely the same way. As already noted, the form of the report was objectionable and it may be that, if properly tested on a voir dire, it could have been demonstrated that his opinions were not wholly or substantially based on specialised knowledge: s 79 of the Evidence Act. Alternatively, it may have been established that his opinions were based on a misapprehension as to the facts and that, once the evidence adduced at trial was put to him, his opinion would not have assisted. However, this appears not to have been the basis on which the evidence was rejected and there was certainly no voir dire. If these issues had been sorted out, it is possible that the evidence might still have been rejected, for example, pursuant to s 135 of the Evidence Act, on the basis that it had little probative value and might mislead or confuse the jury. Nevertheless, the circumstances in which that provision might be invoked against an accused person in a criminal trial would probably be limited. 30 There were also passages in the course of argument at trial in which the trial judge appeared to be concerned that the doctor was giving an opinion on a matter which was an issue to be determined by the jury: Tcpt, 25/09/06, p 4 (15)-(55). If that were the case, the Appellant argues that that would be an error because s 80 of the Evidence Act provides that an opinion is not inadmissible only because it is about a fact in issue: see s 80(a). 31 Whether his Honour in fact accepted that view is somewhat unclear. It would be difficult, contemporaneously, to hold the view that the evidence was not relevant and that it was about a fact in issue. 32 On another view, the reason for rejection may have been that the evidence would merely "corroborate" the evidence given by the accused: Tcpt, 25/09/06, p 53 (25). In that sense, the evidence may have been seen as seeking to bolster the credibility of the accused. However, that would not mean that the evidence was irrelevant: s 55(2)(a). 33 None of these bases for rejection is persuasive. If Dr Nicholls had been properly qualified and the nature and extent of his examination and the bases of his opinion identified, it may well be that he could have expressed an expert opinion as to the likelihood of the Appellant climbing onto the examination table in the manner described by the complainant, given the functional impairment caused by the injuries to his left leg. However, as will be noted below, in a practical sense the probative force of the proposed evidence was likely to be quite limited. Evidence of Dr White 34 The second witness rejected by the trial judge was Dr Bernadette White. Again, to appreciate the significance of her evidence it is necessary to return to aspects of the trial. 35 A significant element of the prosecution case was that an examination took place at Orange Base Hospital a little under 24 hours after the sexual activity took place, namely on the afternoon of 9 December 2005. Doctor Judith Ross examined the complainant and took oral and vaginal swabs. A high vaginal swab demonstrated the presence of semen with a profile which matched the Appellant's DNA. Dr Ross also gave evidence of examining the complainant's right labia and finding redness and tenderness. She also found a red puncture wound in the right arm which she considered was caused by a needle of the kind used for taking blood or giving an injection into a vein: Tcpt, 20/09/06, p 43. This evidence was consistent with three elements of the complainant's story, namely that she was given diazepam in her right arm, that the act of intercourse was rough and abrasive and that he ejaculated in her vagina. In relation to the labia minore, which are the internal lips at the vaginal opening, Dr Ross noted both localised erythema or redness, and tenderness to palpitation: p 47. She said that these effects "could have been caused by blunt pressure on those tissues": p 43 (35). 36 Doctor Ross was not cross-examined in relation to the significance of the high semen encountered on a high vaginal swab, nor with respect to her description of the labia minore. 37 As with Dr Nicholls, discussion of the proposed evidence of Dr Bernadette White was based upon a letter provided by her to the Appellant's solicitors dated 12 September 2006, which was the first day of the trial. Her report was brief and the relevant passage may be set out in full: "I understand that you are seeking from me advice as to, other than through sexual intercourse, how semen could be present in the upper vagina. If [the complainant] did have a used condom containing semen there are a number of ways by which the semen could be placed in the vaginal [sic]. One would be to use a syringe to draw up the semen from the condom and insert it into the vagina, alternatively it would be possible to place either the unsealed condom or a sealed condom with a hole in it into the vagina to allow the fluid to leak out and then remove the condom. I do not believe it would be necessary for the patient to lie in any particular position for the semen to remain in the vagina. It is certainly accepted that even when through normal intercourse semen is deposited at the opening of the vagina or the lower part of the vagina, that it can nonetheless subsequently be found in the upper part of the vagina." 38 The report of Dr White was dealt with differently to that of Dr Nicholls. Apart from the fact that the prosecution objected to Dr White being called, no reason was articulated and the only matter addressed by counsel for the accused in support of the proposed tender was that he had not put the questions addressed by Dr White to Dr Ross because the latter had made "no finding of semen in the upper vaginal area": Tcpt, 25/09/06, p 6 (30). (The finding was made by the technician in the analytical laboratories.) However, his Honour gave the following ruling (p 7): "I accept that the matters raised in that report dated 12 September 2006 do raise a matter of relevance, but that no question was put to any witness called by the Crown in relation to the matters raised by Dr White and the report only having been seen by the Crown today, 25 September 2006, and objection being taken, I consider it is not proper to have Dr White called to give evidence." 39 The reason for the rejection of the evidence is somewhat obscure. There was acceptance that the material was relevant and there was no express finding that the opinion was for some reason inadmissible. The reasons for it being "not proper" to permit the witness to be called for the accused were, first, that no question was put to any witness called by the prosecution and, secondly, that the Crown did not have prior notice of the evidence. However, in relation to the latter point, the Crown did not seek an adjournment, or even discuss the nature of any prejudice caused by Dr White's proposed evidence. Nor was there any consideration, if it had been thought necessary to put Dr White's opinion to Dr Ross, to have Dr Ross recalled, pursuant to s 46(1)(b) of the Evidence Act. 40 As with Dr Nicholls, an understanding of the reasons for the ruling of the trial judge were not assisted by any articulation of the basis of objection by the prosecution. The closest one comes is the following exchange, which occurred when the matter was first raised after the lunch adjournment on 25 September, after counsel for the accused had indicated that he would obtain copies of the reports and place them before the Court later in the day (Tcpt, p 54 (45)): "HIS HONOUR: Yes, by all means, you could do that but I can see the Crown has indicated that they would oppose, as I understand it, medical evidence. Is that so? CROWN PROSECUTOR: Yes, yes we are, your Honour. HIS HONOUR: And I can simply indicate to you Mr Walsh, I can understand the reason for that and I … would just like to indicate … the reason why I consider that could be particularly inappropriate and dangerous on behalf of the accused as much as anyone else. The evidence before the jury will have to be the evidence of what the accused said." 41 This passage is opaque: it does not articulate clearly any basis of objection. When it came to the reasons for rejecting Dr White, it would appear that his Honour acted upon an underlying assumption that the prosecution should be given prior warning of proposed expert evidence, where it is to be called on behalf of an accused. Whether that happened in respect of Professor Starmer is unclear, but no objection appears to have been taken to his evidence, which concerned the effects of diazepam: Tcpt, 26/09/06, p 33. 42 The Appellant's case is that if the evidence were rejected because it had not been put to Dr Ross, that would have been an error because, to the extent that the principles of fair conduct required the prosecution be given advance notice of aspects of the accused's case, that principle needed to be applied with caution "when considering the conduct of the defence at criminal trial": see MWJ v The Queen (2005) 80 ALJR 329 at [18] (Gleeson CJ and Heydon J) and at [38] (Gummow, Kirby and Callinan JJ). (Reference was also made to the decisions of this Court in R v Liristis [2004] NSWCCA 287, (2004) 146 A Crim R 547 at [73]-[79] (Kirby J, Studdert and Hislop JJ agreeing), referring to the comments of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 688 and 689; and Rend v The Queen [2006] NSWCCA 41, (2006) 160 A Crim R 178 at [79] (James J, Buddin and Hall JJ agreeing).) 43 However, it is not necessary to consider the operation of these principles to deal with this case. If the prosecution needed to obtain instructions before cross-examining Dr White, it is difficult to imagine that that could not have been done overnight. Again, if an adjournment had been required, it was not sought. Nor was this a matter in which there was any need for an expert to examine or confer with any other person. Indeed, a more plausible basis for objection to her evidence was that it probably would not have advanced the sum total of the jury's knowledge of such matters. With the possible exception of the last sentence, it was very much a matter of commonsense. Indeed, the underlying premise of the Appellant's explanation as to the use of the condom was that the complainant herself had been able to work out how to use a semen filled condom to suggest vaginal intercourse. There is no reason to suppose that members of the jury would have acted otherwise than on the basis that such conduct might have the effects described. 44 The evidence being relevant and marginally useful, there was no sound reason articulated for rejecting it. If leave to appeal is required, the error not being one of law alone, leave should be granted: see Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318. Operation of proviso 45 Given that the Appellant has established error in the rejection of the two medical witnesses proposed to be called for the defence, it is necessary to consider whether the appeal should nevertheless be dismissed because no substantial miscarriage of justice has actually occurred. 46 Each element of the evidence may be said to add a degree of plausibility to the defence case and, at least in relation to Dr Nicholls, a degree of implausibility to the evidence of the complainant. It is convenient to deal first with the evidence of Dr White. 47 The argument put by the Appellant was that Dr White's evidence provided an answer to the rhetorical question posed by the prosecutor in addressing the jury (Tcpt, 26/09/06, p 6). Having noted that the high vaginal swab indicated the presence of the accused's semen, the prosecutor continued: "Without being ridiculous about it, how, how did it get there? How did it get there? Well let me tell you this, and it is a matter for you. It did not get there the way Dr Alramadan described there, that is a sexual activity he says he had with [the complainant]. Let me just remind you of something. It was put to [the complainant], right at the end of her cross-examination, that she inserted some of the semen in her vagina herself. Mr Walsh put that to her. Do you remember that question? Of course she said 'No'." 48 In submissions, counsel for the Appellant put the first paragraph of this passage to the Court, without the second. Taken in isolation, the first paragraph may suggest that there was some physical difficulty or even impossibility in the swab of DNA in the high vagina, otherwise than through full intercourse. However, read in context, it bore no such inference: rather it was an attack highlighting the implausibility of the defence case. 49 So far as the last sentence of the evidence proffered from Dr White was concerned, it was never the defence case that semen had been deposited at the opening of the vagina, or the lower part of the vagina, "through normal intercourse". At its highest, the evidence of the Appellant was that the complainant tried, and may have succeeded in placing his penis in her vagina, whilst he was on the telephone, after he had ejaculated into a condom and she had removed the condom: Tcpt, 21/09/06, p 54. Evidence was not tendered as to the effect of that conduct. However, after the completion of the accused's evidence, one would not expect that the final sentence of Dr White's report would have been admitted, it not being based on the Appellant's evidence which was by then complete. To think that the jury might have taken a different view as to the respective stories of the Appellant and the complainant if they had had expert evidence that semen could be extracted from a used condom and be placed in the high vagina, defies commonsense. The rejection of the evidence actually proffered could not have affected the outcome of the case. 50 There remains the evidence of Dr Nicholls. Although the evidence of the degree of functional impairment caused by the Appellant's disabilities was a matter which could properly be addressed by an orthopaedic surgeon, the degree of impairment was not to be considered in general terms, as it might be in a case involving assessment of lost earning capacity, but in the precise circumstances of the events which were said to have occurred in the surgery on the day in question. It is clear that the trial was run on the basis, accepted by the prosecution, that the Appellant did suffer from a significant disability which no doubt made it difficult for him to get onto the examination table in the way described by the complainant. To the extent that Dr Nicholls described and identified particular injuries, these were not in doubt. The accused was not cross-examined to suggest that he did not have such injuries and indeed the prosecution joined in his demonstration of his disabilities to the jury. Whilst Dr Nicholls expressed the view that it is "very difficult" for the Appellant to "climb stairs", the jury apparently saw him take steps in and out of the witness box and across the Court. Dr Nicholls expressed himself in the same terms in relation to getting onto an examination couch, namely "that it would be very difficult". The reason he gave was the need for assistance "in getting the left leg" onto the couch. However, thereafter, Dr Nicholls' opinions were based upon factual supposition as to the circumstances and physical state of the complainant which were not consistent with her evidence and which therefore left Dr Nicholls' evidence as of such diminished weight as to be of no significance in its most important respect. 51 Again, had Dr Nicholls been called, parts of the written report would undoubtedly have been rejected and it is likely that his oral testimony would have been based on different premises. Nevertheless, such evidence was not proffered. 52 The Appellant faced other serious difficulties in relation to his own credibility. These can be adverted to briefly. First, when interviewed by the police two days after the incident, he said that he had already given back the complainant's licence, denied that he had contacted her to tell her to recover it from the surgery and denied having seen the complainant at all on the day in question. He also denied having sexual intercourse with her. Given the possible consequences for his professional registration, even if the activities had been as he suggested in evidence and not as the complainant averred, he might have been able to explain the false story told to police. However, in his evidence, he insisted that the story was "incorrect" and did not accept that he had lied. 53 Two days after being interviewed by police, he took the initiative and contacted the Medical Board to explain the situation, in case a complaint was made. In a conversation with a legal officer attached to the Board, Margaret Harvey, he said that he had seen the patient on the day in question and that a bag containing his soiled underwear had been taken from near the examination table in his surgery. He explained that there was "semen on my clothes as I had ejaculated". On the Board's officer expressing surprise, the Appellant stated that "the patient must have taken the bag" and suggested that she did so "maybe to put in her vagina". 54 In cross-examination, he denied much of the conversation with the Board's officer, Ms Harvey. 55 The Appellant was also cross-examined about his claim to have had the complainant masturbate him into a condom, which then disappeared. No other condoms were found by the police in his surgery when it was searched two days later. 56 If the jury accepted the evidence of Ms Harvey, it would have demonstrated consciousness that his semen might have been found in the complainant's vagina. There was, however, no suggestion of use of a condom. 57 As with most criminal appeals, there is an inevitable difficulty in assessing the evidence without hearing the witnesses. That is particularly so in a case where a complainant gives evidence, which is contradicted by the accused. However, the Court is entitled to take into account the fact of the jury's verdict. Once it is accepted that the two pieces of rejected evidence could not have had a significant effect on the assessment of credibility, and in the absence of any other challenge to the verdict, it is open to the Court to conclude that there was no substantial miscarriage of justice. Although it would not be possible to find the accused guilty beyond reasonable doubt upon a mere reading of the transcript, there is ample material in the evidence to support the jury's conclusion. 58 Were it otherwise, it would be necessary to order a retrial in any case in which an irregularity had been identified and in which the case turned in any material respect upon an assessment of credibility. However, as the Court explained in Weiss, 224 CLR 300 at [43], "the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict". Their Honours continued: "The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out'. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial." That approach would appear to have particular relevance where the irregularity involves the rejection of evidence tendered by the accused, where it can readily be said that, assessing that evidence in the context of the evidence given at trial, it would, or at least should, have had no bearing on the outcome. This is such a case. 59 Accordingly, there should be a grant of leave to appeal, if required; the appeal should be dismissed. 60 LATHAM J: I agree with Basten JA. 61 ROTHMAN J: I have had the advantage of reading the reasons in draft of Basten JA. It is unnecessary to repeat the facts or analysis of his Honour, except to the extent necessary to explain the basis of my conclusion. The Effect of Exclusion of the Evidence 62 I agree with Basten JA that errors have occurred in the trial procedure. It seems that his Honour, below, was concerned to ensure that by adducing evidence the accused did not prejudice his own position. However commendable that sentiment, it led to his Honour rejecting, in advance, evidence that was relevant. Certainly the evidence of Dr Nicholls would have been relevant. If the testimony were rendered unconvincing either because the facts upon which it was based were not proved or because it was inconsistent with other more convincing evidence (including the physical demonstration by Dr Alramadan), then that is a matter solely for the jury. No jurisdiction under section 137 of the Evidence Act 1995 (NSW) can be exercised in relation to evidence adduced by an accused and no exercise of discretion under section 135 of that Act was sought. 63 Further, to the extent that the report of Dr Nicholls was relevant to anything, other than an indication of the subject matter of the proposed evidence, it is not clear from the report that the evidence was not highly probative. That section of the report that refers to the capacity of Dr Alramadan to manoeuvre his leg may have been highly probative. First, it expresses (or purports to express) an expert opinion. Secondly, it is based on an examination of Dr Alramadan and the expertise of the specialist. Thirdly, it may have taken account of the effect of diazepam on the "adversary" (on which possibility, there is no evidence). 64 As to the evidence of Dr White, again it is (or would have been) relevant. It had a probative value in relation to an issue in the trial. Care must be taken to avoid diminishing the probative value of evidence because it is "common sense". The problem with "common sense" is that its possession is not "common". Translating the experience and knowledge of judges, or other persons, to everybody is not always a valid exercise. Given the cross-section of the public that makes up a jury, it is probably accurate that most of them would be aware of the capacity of semen to travel, in the manner suggested, from the opening or lower part of the vagina to the upper part of the vagina. But can we assume that everyone is? And even if everyone in NSW were aware, the evidence is not rendered irrelevant: it "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings". 65 Lastly, on the factual significance of Dr White's proposed testimony, it is necessary to deal with the final sentence of Dr White's report on the depositing of semen at the opening of the vagina and the capacity to find it in the upper vaginal area. With respect to Basten JA, such evidence is not irrelevant or inadmissible. 66 The evidence of Dr Alramadan (at least the latest version of what he said occurred) was that there was ejaculation into a condom, the removal of the condom and then an attempt by the complainant to place Dr Alramadan's flaccid penis into her vagina. During that last attempt, as a matter of "common sense" and logic, there must have been semen on Dr Alramadan's penis. As a consequence, Dr White's evidence is relevant to the plausibility of Dr Alramadan's version, or, more accurately, rationally affects whether the finding of semen in the upper part of the vagina is inconsistent with innocence of the criminal charge and thereby assists in the proof of Dr Alramadan's guilt. 67 I agree with Basten JA that the evidence of both Dr Nicholls and Dr White was relevant and ought not to have been rejected. Basis of Appeal and Proviso 68 Section 5(1) of the Criminal Appeal Act 1912 (NSW) (the Act) confines a right of appeal against conviction to "any ground which involves a question of law alone": section 5(1)(a) of the Act. Any other conviction appeal requires leave. "An appeal on the ground of the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone. The manner in which a discretion is exercised depends upon the judge's appreciation of all the facts of the case, so that an error of law which leads the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence": Williams v The Queen (1986) 161 CLR 278 at 301-302, per Mason and Brennan JJ. 69 The current appeal is an extreme example of the rejection of evidence, because it is, essentially, a determination that a witness may not be called (as distinct from a determination that evidence from that witness not be adduced). Nevertheless, it is a decision in the course of a trial on the admissibility and/or relevance of evidence and on an assessment of the effect of the proposed evidence on the issues at trial (and necessarily the evidence already adduced). As a consequence, the ground of appeal does not involve "a question of law alone" and leave of the Court is necessary: see Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318. 70 While section 5(1) of the Criminal Appeal Act establishes a capacity, in this instance, to seek leave to appeal and, if granted, appeal a conviction, section 6(1) of the Criminal Appeal Act establishes the bases upon which such an appeal may be granted. Under section 6(1) of the Criminal Appeal Act, an appeal shall be granted if the Court forms one of the following opinions: (i) the verdict of the jury is unreasonable, or cannot be supported, having regard to the evidence; (ii) the judgment should be set aside on the ground of a wrong decision on a question of law; or (iii) on any ground whatsoever if there be a miscarriage of justice. Section 6(1) of the Criminal Appeal Act is in the following terms: "6(1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 71 As Basten JA observes, the basis of this appeal is that described in (ii) above. An error of law is not necessarily a wrong decision on a question of law. In this instance, the trial judge was required to decide a question of mixed law and fact and there is, as has been shown, an error of law. The decision is a wrong decision on a question of law, namely, whether the evidence sought to be adduced was admissible within the terms of section 56 of the Evidence Act 1995 (NSW) and/or whether, given the terms of section 56, the trial judge was entitled to reject the evidence. But it is not beyond doubt. 72 Alternatively, it seems, the rejection of the evidence was a "miscarriage of justice" in that relevant evidence upon which Dr Alramadan sought to rely was not permitted to be adduced. In Weiss v The Queen (2005) 224 CLR 300, the High Court discussed the meaning of this expression. While the proviso, to which I will come, has sematic difficulties, the terms of section 6(1) of the Criminal Appeal Act do not conflate the task in applying the proviso with that which is required in the body of the section. While the use of the expression "should be set aside" in qualifying the first two bases for a successful appeal may require the ground to be more than ephemeral or not irrelevant to the result, it is a different task to that required by the proviso. Interestingly, the third basis for a successful appeal, namely, a miscarriage of justice, is not qualified in the manner the first two bases are. This may be because the expression "miscarriage of justice" imports a similar notion and if it were qualified in the same manner there may be a conflation of this basis and the proviso. 73 However, the proviso uses the term "substantial" to qualify the "miscarriage of justice" and entitles the Court to dismiss the appeal, without requiring the Court so to do. If any one of the bases in the body of section 6(1) is satisfied, it seems, absent the application of the proviso, the Court is required to allow the appeal. The foregoing is not intended to be a reversion to the Exchequer Rule (see Conway v The Queen (2002) 209 CLR 203 at 211 et seq; Weiss v The Queen, supra, at 306 et seq). Even Baron Parke's view required a formal objection, to inadmissible evidence allowed, before the right to a new trial arose: see R v Grills (1910) 11 CLR 400. 74 However, the distinction between the third basis requiring the upholding of the appeal ("miscarriage of justice") and the proviso must depend on the addition of the word "substantial". This seems to harken back to the "post-Judicature Act" approach described by Lord Herschell in Bray v Ford [1896] AC 44 at 52 as the effect of Order 39 rule 6 of the then Rules of the Supreme Court. Bray v Ford was a civil damages award by a jury to which the Rules applied. However, Herschell LJ (and Halsbury LC, Watson and Shand LJJ in separate judgments) took the view that the House of Lords under that Rule of Court was not entitled to look at the outcome of the case as if the irregularity had not occurred, because, as a libel action, the party was entitled to have from a jury both the verdict and the assessment of damage. This is not the view taken of the operation of the proviso: see Weiss, supra. 75 In Weiss, supra, at [36], albeit in summary form, the High Court expressed the view that the proviso falls for consideration when "there was some irregularity at trial". 76 On the view taken of this trial by Basten JA, with which view I have agreed, there was some irregularity. Application of the Proviso and Leave: Conclusion 77 In applying the proviso, the Court is required to decide for itself whether, objectively, a substantial miscarriage of justice has occurred. The task is the same as that undertaken when deciding whether to set aside a verdict on the basis of unreasonableness of the verdict, making due allowance for the disadvantages of an appeal court that has neither seen nor heard the witnesses: see Weiss, supra, at [39]-[41]; Darkan v R (2006) 227 CLR 373 at [84], [85], [94]-[96], [109] (per Gleeson CJ, Gummow, Heydon and Crennan JJ) and [112] (per Kirby J). 78 Where an accused is denied the right to adduce relevant and admissible evidence, the effect of which may have been to raise reasonable doubt about the version of events upon which the Crown relies, then the task must be approached differently. The Court, on appeal, in such circumstances, is unable to assess "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (M v The Queen (1994) 181 CLR 487 cited with approval in MFA v The Queen (2002) 213 CLR 606 at 615 and 623), unless "the whole of the evidence" includes that which was excluded. 79 The difficulty is that this Court is unaware of the whole of the evidence that would otherwise have been adduced. Unless we are prepared to assume, as did his Honour below, that the oral evidence of Drs Nicholls and White would be confined to, or be identical with, their respective written reports, without further explanation, then there is no material that addresses that issue. 80 I agree with Basten JA that the assessment of the evidence as a whole, including the addition of the excluded medical reports to the remainder of the evidence would lead to the conclusion that "no substantial miscarriage of justice has actually occurred". 81 However, I take the view that the reports, alone and unexplained, ought not be taken as the only evidence denied to the jury and upon which the assessment, required by the proviso to section 6(1) of the Criminal Appeal Act, should be undertaken. It was the oral evidence of Drs Nicholls and White that was irregularly excluded, not the reports. The Court should have had, and should have, for that purpose, the evidence that would have been adduced. This could be done by affidavit. There may be no evidence to be adduced beyond that which is in the reports. But the appellant should have that opportunity. I would refuse leave to appeal. Such a course would enable an assessment by the appellant's legal representatives of the prospects of a further appeal on the basis of the evidence that Drs Nicholls and White could give, as explained by them. 82 I propose that leave to appeal be refused. ********** 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.