AD v The State of Western Australia [No 2]
[2007] WASCA 207
•10 OCTOBER 2007
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 207
CORAM: PULLIN JA
BUSS JA
MILLER AJA
HEARD: 9 MAY 2007
DELIVERED : 10 OCTOBER 2007
FILE NO/S: CACR 88 of 2006
BETWEEN: AD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :H H JACKSON DCJ
File No :IND 1531 of 2003
Catchwords:
Criminal law - Conduct of defence counsel at trial - Whether counsel failed to follow instructions - Failure to call accused as witness - Whether miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(e)
Result:
Application for extension of time to appeal refused
Category: B
Representation:
Counsel:
Appellant: Mr H Sklarz
Respondent: Mr D Dempster
Solicitors:
Appellant: Henry Sklarz
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ali v The Queen (2005) 79 ALJR 662
Lancaster v The Queen [1989] WAR 83
Nudd v The Queen (2006) 80 ALJR 614
R v Armstrong (1983) 35 SASR 356
R v Kyriacou (2000) 210 LSJS 296
R v N [2004] Qd R 328
R v ND [2004] 2 Qd R 307
Rinaldi v The State of Western Australia [2007] WASCA 53
TKWJ v The Queen (2002) 212 CLR 124
PULLIN JA: Further evidence was given at the hearing of this appeal by the appellant and by Mr Sullivan who was counsel for the appellant at the trial. The evidence was admitted by this Court pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA). The evidence is summarised in Buss JA's reasons.
I agree with those reasons and I therefore also agree that the application for an extension of time to appeal should be dismissed.
BUSS JA: The appellant was charged on indictment with two counts:
1.Between 1 August 2000 and 5 April 2003, at Perth, the appellant had a sexual relationship with his daughter, a child under the age of 16 years.
2.Between 1 August 2000 and 5 April 2003, at Perth, the appellant had a sexual relationship with his son, a child under the age of 16 years.
The appellant was tried before H H Jackson DCJ and a jury, and convicted, on 24 February 2005, on both counts. He was sentenced, on 7 April 2005, to 4 1/2 years' imprisonment on each count, to be served concurrently, commencing from 23 February 2005. At the same time, the appellant was sentenced to 12 months' imprisonment on each of 14 counts on a s 32 notice (for stealing and fraud), to be served concurrently with each other and with the terms imposed for the counts on the indictment. The overall head sentence was therefore 4 1/2 years. A parole eligibility order was made.
The appellant has applied for an extension of time to apply for leave to appeal against his convictions in respect of the counts on the indictment.
The prosecution case
The prosecution case was as follows.
The appellant and the children's mother were in a relationship which produced the children referred to in the indictment. In about August 2000, the appellant and the children's mother separated, but the appellant had access to the children. At that time, the boy was aged about 5 and the girl about 2 1/2. When the children visited the appellant, he would touch and penetrate their genitals and anus with his fingers and sticks or twigs. This occurred, over a period of about 2 1/2 years, until the children's mother became aware of the appellant's conduct.
The prosecution witnesses were the complainants, their mother, an employee at a motel where the appellant and his mother had stayed with the children, and a doctor who examined the children. The doctor gave evidence, relevantly, that the daughter had a loss of hymenal tissue which could indicate a previous penetrative injury to the hymen.
The defence case
The defence case was a denial that the alleged conduct had occurred. The only witness for the defence was the appellant's mother.
Grounds of appeal
On 25 August 2006, Roberts‑Smith JA ordered that the appellant's application for an extension of time within which to appeal, and the application for leave to appeal on grounds 1(a) ‑ (c) of the proposed grounds of appeal, be heard with the appeal. His Honour also granted leave for the appellant to rely on an affidavit of the appellant sworn 3 August 2006, in support of the grounds. On 13 November 2006, Roberts‑Smith JA made further orders granting the appellant leave to rely on an affidavit of the appellant's solicitor sworn 13 November 2006, which annexed another affidavit of the appellant sworn 4 November 2006. Ground 1(c) was abandoned at the hearing of the appeal.
The grounds of appeal are:
1.There was a miscarriage of justice, caused by the conduct of [the appellant's] counsel in:
(a)Denying the appellant the opportunity of giving evidence on oath in answer to the charges.
(b)Failing to provide, to the jury, a defence and alternative view to refute the complainants' evidence.
The appellant's counsel at trial was Mr Paul Sullivan.
Application for an extension of time
The appellant was convicted on 24 February 2005, and the appeal notice was filed on 28 June 2006.
The appellant swore an affidavit dated 22 June 2006 in support of his application for an extension of time. The appellant said, in his affidavit, that immediately after conviction he wanted to appeal, but Mr Sullivan was disinterested in pursuing such a course. After several months, the appellant made inquiries with other lawyers, but was unsuccessful in retaining a lawyer. The appellant also contacted Legal Aid but was refused aid. He approached his family to arrange funds for an appeal, while he continued, over the next 11 months, to seek to obtain legal representation. In March 2006, the appellant's current lawyer was contacted, and after considering the case, agreed to represent him.
In Lancaster v The Queen [1989] WAR 83, Malcolm CJ said, at 85, that it is well settled that where there has been a lengthy delay the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.
Further evidence
On 17 April 2007, Roberts‑Smith JA ordered that leave be granted for the respondent to call Mr Sullivan as a witness at the hearing of the appeal. Mr Sullivan and the appellant gave evidence at the hearing.
The evidence in relation to whether Mr Sullivan refused to permit the appellant to give evidence
Before this Court, the appellant said, in relation to the issue of his giving evidence at trial:
(a)'I always said I'd do anything I could to refute the charges; I'd give evidence. I always said I wanted to give evidence.' (ts 45)
(b)'I wanted – I was willing to give evidence the whole time.' (ts 49, 58)
(c)'I told [Mr Sullivan] that I wanted to give evidence, but the whole time he said I'll probably get abusive to the prosecution or get emotional on the stand and that he wouldn't call me.' (ts 50)
(d)'[W]hat sort of dumbfounded me was the fact that he had said prior that he wouldn't call me; he didn't think it was right to call me to the stand. I don't know whether – during the police interview I cried a lot.' (ts 51)
(e)Before the recording of the children's evidence in July 2004, 'when I had discussed things of the trial with [Mr Sullivan] I always said to him I was happy to get on the stand and he said if it did get that far then he would probably not call me because he thought I would get abusive or emotional with the prosecution'. The appellant could not understand why, but did not insist on giving evidence at that stage. (ts 52)
(f)Before the trial, the appellant had spoken with Mr Sullivan a few times about whether he would give evidence. The appellant said '[a]fter the children had been cross‑examined and prior to that I had spoken of getting on the stand and refuting the allegations. I wanted to fight it with everything I could. They weren't true.' (ts 53)
(g)When Mr Sullivan advised him not to give evidence, the appellant 'just went with what he said basically at that time', but 'in the trial I argued a little bit more'. (ts 53 ‑ 54)
(h)It was not the appellant's instruction that only one witness, his mother, would be called on behalf of the defence. He said 'I didn't look at myself as a witness, being a witness. When [Mr Sullivan] said [in court] he would call my mother I thought okay, then afterwards I thought that I would be called to give evidence'. (ts 54, 59 ‑ 60)
(i)After the closing of the prosecution case, when the trial judge asked Mr Sullivan whether he wanted to take instructions from the appellant, the appellant 'tapped the front of the box to motion to Mr Sullivan to come forward to me … to say that I wanted to give evidence'. There was a short adjournment. (ts 55, 57)
(j)During the adjournment, the appellant told Mr Sullivan that 'I wanted to give evidence. Mr Sullivan said he wouldn't be calling me. I said I had nothing to hide and that I wanted to give evidence. We had spoken about – he actually told me that – he said the jury couldn't hold it against me if I didn't give evidence and I asked him to explain that and then I said, "I still have nothing to hide. I want to give evidence" – and as I was saying that there was an AIMS security officer, which sort of shocked me a bit, who said "Are you going to give evidence, because if you do I'll fall asleep" basically, and as I turned back I said to Mr Sullivan, "I want to give evidence". He said, "I won't be calling you", and he went back'. (ts 56)
(k)After Mr Sullivan announced that the appellant would not be giving evidence, the appellant did not put up his hand and say to the trial judge that he wanted to give evidence because 'I'd never been in that situation before' and 'I really didn't know what to do'. (ts 57, 60-62)
(l)The appellant had previously discussed with Mr Sullivan whether he would give evidence, but Mr Sullivan repeatedly said that he would not be calling him. (ts 57)
(m)'I always wanted to give evidence at that time. I didn't think that he had done a substantial job and I felt like I needed to have my say.' (ts 57)
(n)After the trial 'I was pretty annoyed. I told him that I was very disappointed in the way he had handled things and that I should have given evidence and he just said that it would probably have made no difference'. (ts 58)
(o)The appellant agreed that Mr Sullivan told him there might be disadvantages in giving evidence, he might become emotional, and there might be some tactical advantage if he did not give evidence, but that he did not accept that advice. (ts 58, 64)
(p)The appellant denied that he agreed with Mr Sullivan that his mother would give evidence but he would not, and said that 'I had always told [Mr Sullivan] that I wanted to give evidence'. (ts 58, 60)
(q)The appellant had not made any notes or rehearsed what he might say if he was to give evidence. The appellant disagreed that the reason for this absence of preparation was his knowledge that he would not be giving evidence, and maintained that he wanted to give evidence, was not guilty, and had nothing to hide. (ts 60)
(r)The appellant had not accepted, from prior discussion with Mr Sullivan, that he would not give evidence. (ts 60)
(s)The appellant disagreed that he had decided not to give evidence after discussion with Mr Sullivan during the adjournment, and asserted that he had not accepted Mr Sullivan's advice about whether he should give evidence, but told him that he wanted to give evidence. (ts 61, 63-64)
(t)The appellant went along with what Mr Sullivan said because 'he was my lawyer. I thought he knew best'. (ts 63)
(u)At the end of the defence case, when Mr Sullivan said '[t]hat is the defence case', the appellant did not make any contact with him and ask him again about giving evidence because 'I honestly had never been in this position. I guess I was dumb to it all, or stupid to it all'. (ts 64)
Mr Sullivan said, in evidence to this Court, relevantly:
(a)He had discussed with the appellant several times, before and during the trial, whether the appellant would give evidence. Mr Sullivan said, 'I did a final check with [the appellant] at the end of the state case and he indicated to me that he would exercise his right to silence'. (ts 65)
(b)The appellant's intention before the trial was not to give evidence. The advice Mr Sullivan had given him was 'I made it clear to him that he had the right to silence; that no adverse inference could be drawn from silence; he had the right to give evidence; if he gave evidence he would be cross‑examined by the state, that is, tested by the prosecutor; so really it was a general canvassing of the right to silence, what would happen if he gave evidence, what he could expect in cross-examination, that type of thing'. (ts 66)
(c)At the end of the prosecution case, 'I asked his Honour Judge Jackson if I could have a final word with the accused, stepped over to him in the dock and got his final instruction that the best thing to do was to exercise his right to silence'. (ts 66)
(d)'I explained to him that if all he was going to do was to get into the witness stand and say, "Not guilty" again then essentially we weren't enhancing our case and we were exposing him to cross‑examination by the prosecutor. So given the fact that he had given me a blanket denial, "It never happened, it wasn't me, this didn't occur" that type of thing, it seemed to me forensically that to go into the witness stand and say "Not guilty" and leave it at that would not be adding to the strength of his case but I made it clear to him that it was his decision. It's his case, it's his decision.' The appellant's instruction was then that he would not give evidence. (ts 67)
(e)The appellant did not indicate to Mr Sullivan that he positively wished to give evidence. (ts 67)
(f)The appellant never said to Mr Sullivan, leading up to the time when the children gave evidence, that he wanted to give evidence to explain his version of events. (ts 70)
(g)'Every trial I do the accused has the right to give evidence. I would never make up my mind about what he wants. It's what he wants that matters.' (ts 71)
(h)The appellant did not say to Mr Sullivan that he was the father, he had a loving relationship with the children, and that he wanted to give evidence to establish that before the jury. (ts 71)
(i)Mr Sullivan called the appellant's mother to give evidence but did not call the appellant because the appellant chose not to be called. (ts 74)
(j)Mr Sullivan did not give the appellant advice not to give evidence. Mr Sullivan said 'I spoke with him. I told him that the choice was his. I told him that if he was going to go into the witness stand he would be cross‑examined, in addition to which there would not be an advantage unless something could be contributed to his case, and there was no information or instructions he had ever given me that would enlarge the defence'. (ts 75)
(k)'I let him make his own mind up but, of course, I would have been failing in my duty if I hadn't said to him, "You will be cross‑examined if you give evidence", and I'm sure I would have said that to him and I would have said to him, "It's your choice whether or not to give evidence".' (ts 76)
(l)Mr Sullivan advised the appellant that there were benefits in giving evidence if he had something to contribute and that he had an opportunity to tell the jury what he knew of the incidents. (ts 76)
(m)Mr Sullivan did not recall the appellant tapping on the dock to get his attention, and the appellant did not say that he wanted to give evidence or wanted to be called. The appellant's evidence to the contrary was a lie. (ts 78 ‑ 80)
(n)Mr Sullivan did not say to the appellant that he did not want to call him because the appellant would get emotional or might be abusive to the prosecution. (ts 79)
(o)Mr Sullivan denied that he did not call the appellant because the defence was not prepared or ill‑prepared to respond to the allegations. (ts 80)
(p)'I would have said to him, "The problem with giving evidence is that you will be cross‑examined". I would have said to him, "You have the right to silence and no adverse inference can be drawn from that". I would have said to him "It will be the jury who determines the outcome". Essentially the recommendation – I see it as a choice for the client because the client needs to make his own decision about whether or not he gives evidence. So I would explain the ups and downs, advantages and disadvantages and then I would leave it to him to make the decision. I would never recommend or tell an accused, "Don't give evidence". I wouldn't do that because it's not my trial.' (ts 81)
(q)'I will say to an accused this is what will happen, this is what's against you, that type of thing, but a recommendation, I leave the decision to the accused and more than likely I might say if you give evidence then these are the ups and these are the downs but I leave it as a decision for the accused.' (ts 82)
(r)'I would have said to him, "This is what's going to happen, you are going to be cross‑examined. What are you going to do? What are you going to say? You have given a blanket denial, how can we improve your position if you go into the witness stand? What would you like to do? What's your decision about giving evidence?"' (ts 82)
The evidence the appellant could have given in his defence
Before this Court, the appellant gave evidence as to the evidence he could have given in his defence at trial:
(a)Mr Sullivan had given the appellant a brief containing the statements of the children and their mother. The appellant said 'I had marked next to the statements how these things couldn't have happened, the factual evidence, it just couldn't have happened. I didn't have time. I wasn't able to. There were people there at the time. It just wouldn't have allowed me'. (ts 46)
(b)The appellant then returned the brief, with the notations in the margin, to Mr Sullivan and 'spoke to him about a place in Two Rocks where there's supposed to be an upstairs and trees on the property. Things like that I spoke to him about, things that really stood out, yes'. (ts 47)
(c)'I told him there was no – there were allegations where there was an upstairs in the house where some of these had occurred, and also there were trees on the property and there were no trees and no upstairs in the house and I asked him to check that out with the real estate up there, because it was a rental that my sister was staying in with their kids and her boyfriend.' (ts 48)
(d)'The other instructions I gave him were basically that it was a concocted story. There were – in one of the transcripts my son had asked the police if they were happy with what he was saying. They asked him why and he said because he was going to receive a Scooby‑Doo game from the Galleria electronic shop, I think it was, which was obviously, to me, coached. I asked Mr Sullivan to investigate those grounds as well.' (ts 48)
(e)The appellant said he was not too concerned about his defence, before the indictment was presented, because Mr Sullivan said he thought the charges were going to be 'dropped'. But, according to the appellant, he became more concerned as time went on, and a trial seemed more likely, because they had not discussed the defence. After the indictment was presented, the appellant said that he and Mr Sullivan never really discussed anything about how they would 'win the case' because Mr Sullivan still thought the case would be 'dropped'. (ts 49 ‑ 50, 52, 63)
(f)The appellant gave Mr Sullivan instructions that 'I wanted – I was willing to give evidence the whole time and that – just to question the children on what I said previously about the video game and that sort of thing'. (ts 49)
(g)After the children had given their evidence in July 2004, and before the trial in February 2005, the appellant had one or two meetings with Mr Sullivan, for about half an hour each, in preparation of his defence. The appellant said that they did not really get into the particulars of his defence, but 'at those stages I just sort of discussed with Mr Sullivan about where the actual things were supposed to have taken place and the people that were there, witnesses that could justify, well, tell my side of the story as well'. (ts 52)
(h)'I told Mr Sullivan it was a fantasy created by the mother … I honestly thought that she – I, at the time, was sleeping with her cousin and that's the reason I thought she was getting at me.' (ts 53)
(i)The appellant told Mr Sullivan that he had witnesses who would have been able to say where he was at the time. (ts 53)
(j)The appellant would have been able to say in his defence, '[t]hat there was no chance of this happening. There was never any chance of this happening'. (ts 53)
(k)The appellant and Mr Sullivan discussed the appellant's notations in the margin on the brief before the trial. The appellant said he had a retort or a response to each allegation made by his children. (ts 53)
Mr Sullivan said, in evidence to this Court, in relation to this issue:
(a)Before the trial, '[e]ach time we met I took full notes of what he had said to me in regard to the prosecution brief. I also supplied him with a copy of the prosecution brief and told him to make notes in the margin in relation to the various witnesses' statements which I then incorporated into my own notes and was fully instructed by him, which essentially was a blanket denial'. (ts 65 ‑ 66)
(b)'Each time we met I would ask him what his comments were, what happened, what's your defence and each time he spoke with me he said, "That never happened".' (ts 69)
(c)'As I recall the guts of the allegations about being in a particular place were not denied. There was never a denial that he was at his mother's unit. He never told me he wasn't at his sister's house camping in the tent so none of that was in dispute. The only things in dispute, as far as he was concerned, were the crimes themselves.' (ts 69)
(d)'[T]he whole difficulty [with the defence] was that there was no evidence, it was a blanket denial. Each time I spoke to him I said, "Well, what are we going to do? What are we going to say? What happened?' and it would come back, 'Didn't happen at all. It's not me. I didn't do these things", and he said the same things in the copies of the prosecution brief which I supplied to him.' (ts 70)
(e)The margin notations made by the appellant were 'a blanket denial. It was simply, "This didn't happen. Not me. This is a lie", that type of thing'. (ts 70)
(f)Mr Sullivan explored the instructions further '[e]ach time we met. "What do you say about this? What do we say about that?" and it always came back, "Didn't happen. Wasn't me'''. (ts 71)
(g)'I'd asked him questions on portions of the statements, portions of the evidence and it always came back the same, so if he was going to go into the witness stand and say not guilty well, then, in effect he wasn't even giving evidence.' (ts 71)
(h)'I remember at the beginning there was a suggestion that the ex‑wife had put the children up to it and that she was jealous because he was dating somebody else. I do remember that, yes.' However, Mr Sullivan denied that the appellant said to him that he was the father and had a loving relationship with his children and that he wanted to give evidence to establish that before the jury. (ts 71)
(i)'[T]he suggestion was that he couldn't have committed these crimes because his mother was taking a shower at the time in the same unit, so I surmise that that's what he's talking about, about a lack of opportunity, but it transpired in evidence later that there were many visits to the different units that had happened and so the evidence established that that was the case and that also he'd been camping in some tent out at his sister's place I think it was, and that he'd occupied a tent with the children, so it was his entire position that it never occurred that he did these things.' (ts 72)
(j)Mr Sullivan was asked about the appellant instructing him, after the children had given their evidence, that there was no tree and no upstairs at his sister's house, where one of the allegations took place. 'I recall mention of "there isn't a tree in this particular place" or something like that, but it's a garden with trees, and what I was supposed to have made of that I don't know, but there was some kind of innocuous reference to a tree…' Mr Sullivan did not follow up this instruction because the cross‑examination had already occurred. (ts 73)
(k)Mr Sullivan then said, 'I recall mention of a tree and not being in a particular place, but it just seemed so innocuous that it wouldn't be worth calling him to give evidence about that and exposing him to cross‑examination, which was his choice in the end anyway'. (ts 73)
(l)Mr Sullivan said the appellant never told him that the appellant had witnesses. (ts 74)
(m)Mr Sullivan did not tell the appellant that a blanket denial was not helpful for the defence case as 'each time I asked him and each time the response came back the same. It's not my position to judge a client and tell him that he's being unhelpful. He tells me what he knows. He tells me he denies the crimes and I accept that, and that's how we proceed. When I traverse the various paragraphs, pages of the prosecution brief and if he doesn't tell me that something else occurred, then I have nothing to work with'. (ts 77)
(n)'[M]y opinion was that if it's a blanket denial, that it's not going to enhance his chances of an acquittal and if he goes into the witness stand and simply says not guilty he will be cross‑examined and it may work out worse for him if he's cross-examined and there's further problems occur so my opinion would have been to myself, what can we achieve by calling him?' (ts 82)
(o)'If the accused tells me about other witnesses, then I will evaluate it with him and say, "Well, this will help us", or, "This won't", or "This will expose you to further difficulties".' (ts 82)
The appellant's affidavits of 3 August 2006 and 4 November 2006 in support of his grounds
The appellant's affidavit of 3 August 2006 was consistent, in all material respects, with his oral evidence at the appeal hearing, and expanded on his evidence as to concoction and lack of opportunity to commit the offences. He said, in this respect:
(a)The alleged offences were a fantasy created by the children's mother because of his relationship with another woman.
(b)The allegation that, at his mother's house, while his mother was having a shower, the appellant was able to 'force the children to do 170 push‑ups and 80 sit‑ups, penetrate them with my fingers while my hands were behind my back and I hummed a tune while watching "The Simpsons", obtain sticks and use these to penetrate my children or wave them around like a wand or scratch them on the bottom', is cited in support of a defence of concoction.
(c)As to the alleged assault on the appellant's son while staying at the appellant's sister's house in Two Rocks, his son gave evidence that there was a tree in front of the house from which the appellant obtained sticks for the offences and that some of the offences took place upstairs in the house. The appellant said that the house did not have a second storey and that there were no trees on the property.
(d)The circumstances never afforded the appellant the opportunity for the privacy required to commit the alleged acts. At the time of the allegations, the appellant was living with his mother in her small two‑bedroom unit, his mother was always present when the children were there, and often other family members also were present. When the appellant took the children to his sister's house, there were always other adults present.
(e)As to the alleged assaults while staying at the appellant's brother's house in Mundaring, there were four children and three adults staying at the house, and a tent was put up, to entertain the children, at the front of the house, in plain view and easily accessible to anyone.
(f)As to the alleged assault on the appellant's daughter whilst staying at a motel, earlier on the day in question, the appellant and his mother had collected the children from the Galleria shopping centre in Morley and taken them to Perth to buy presents for his daughter's birthday. The children wanted to stay with the appellant at the motel so the appellant's mother, who was present at all times, slept in the single bed and the children and the appellant slept in the double bed.
The appellant also said, in his affidavit of 3 August 2006, that when the trial date was set, he had again expressed his desire to give evidence, and told Mr Sullivan that he had at least 10 witnesses who could support his defence and corroborate his innocence, but Mr Sullivan said that only his mother's testimony would be necessary.
This affidavit was sent to Mr Sullivan for the purpose of inviting his response to the allegations it made. Mr Sullivan responded by letter dated 4 September 2006. The responses in Mr Sullivan's letter are consistent, in all material respects, with the evidence he gave at the appeal hearing. As to the appellant's allegation about his witnesses, Mr Sullivan denied that the appellant had expressed a desire to give evidence and call 10 witnesses in his defence. Before this Court, Mr Sullivan asserted that the appellant's reference to 10 witnesses was an 'outright lie'. (ts 74)
The appellant's affidavit dated 4 November 2006 was sworn in response to Mr Sullivan's letter and it was also consistent, in all material respects, with the appellant's earlier affidavit and his evidence at the appeal hearing.
The merits of the proposed grounds of appeal
The critical issue raised by the proposed grounds of appeal is whether Mr Sullivan failed or refused to give effect to a request or an instruction by the appellant that he wanted to give evidence. The appellant must persuade the court, on the balance of probabilities, that there was such a failure or refusal.
In R v Armstrong (1983) 35 SASR 356, an accused who did not give sworn evidence at trial (but instead read an unsworn statement) applied for leave to appeal against conviction on the ground that he had been denied the opportunity of giving evidence by the conduct of his counsel. It was his third trial. The accused alleged that his counsel did not want him to testify and had said that he would no longer act for the accused if he did, and also that his counsel had told him that he no longer had the right to testify because the accused had made an unsworn statement at the first trial, and was bound by that conduct at the second trial (and, subsequently, the third). The accused's counsel disputed these allegations. Matheson and Johnston JJ set out, at 370, the relevant law relating to the proposed ground of appeal:
The relevant law relating to the applicant's proposed ground of appeal is set out in Halsbury's Laws of England, 4th ed, vol 3, par 1140:
'The client must decide…whether or not he is to give evidence himself. Counsel may of course properly advise on these matters, in strong terms if need be, but it is the client who must make the decision(s).'
(See also Reg v Turner [[1970] 2 QB 321, at p 326] and Extracts from the Code of Conduct for the Bar of England and Wales contained in Archbold, Criminal Pleading, Evidence and Practice, 41st ed, 2137 at 2140). The Crown concedes that if we were satisfied that the applicant was, by the conduct of his counsel, denied the opportunity of giving evidence on oath in answer to the charge laid against him, there would, in such circumstances, have been a miscarriage of justice.
Matheson and Johnston JJ then considered the burden and standard of proof in relation to whether the accused was denied the requisite opportunity, and concluded, at 372:
We have reached the conclusion that there is an onus on the applicant to satisfy us on the balance of probabilities that he was, by the conduct of his counsel, denied the opportunity of giving evidence on oath…
In Armstrong, Matheson and Johnston JJ accepted the evidence of the accused's counsel disputing the allegations, and found (Legoe J agreeing with their Honours in the result) that the accused had not established that he had been prevented from giving sworn evidence by the conduct of his counsel, and the application for leave to appeal was dismissed.
In Rinaldi v The State of Western Australia [2007] WASCA 53, the appellant alleged, in one of his grounds, that the conduct of his defence by his trial counsel was such that he did not have a fair trial, leading to a miscarriage of justice. One of the ways the appellant said this occurred was the counsel's 'shortcomings in her advice to the appellant that he should not give evidence'. The appellant alleged that his counsel had told him, on the first day of the trial, that she did not want him to give evidence, and that if he did not give evidence she would have the right to address the jury last. The appellant said he asked her whether that was the correct thing to do, and his counsel said 'as your lawyer I am advising you to do it'. His counsel denied making such statements. Steytler P (with whom Wheeler and Pullin JJA agreed), made some observations, at [124] ‑ [125], about situations where it is asserted that the conduct of an appellant's defence by his trial counsel was such that he did not have a fair trial, leading to a miscarriage of justice:
The High Court has stressed, in Nudd v R (2006) 80 ALJR 614, that the statutory ground of appeal, when a contention of this kind is advanced, is that the events complained of resulted in a miscarriage of justice: see at [2] per Gleeson CJ, at [24] per Gummow and Hayne JJ, at [59], [81] per Kirby J, at [158] per Callinan and Heydon JJ and s 30(3) of the Criminal Appeals Act. Gleeson CJ said at [7], in this respect, that:
'The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. …An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial.'
Gummow and Hayne JJ said, at [24]:
'Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial … of whether there was a material irregularity in the trial … and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial …'
(See also Kirby J at [87], [95] and [100].)
When considering a ground alleging incompetence of counsel, regard must be had to the adversarial context of a criminal trial, involving the principle that, 'subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue': Nudd at [9] per Gleeson CJ (who added that the law 'does not pursue that principle at all costs' and that it recognises the possibility that justice may demand exceptions) and see also at [79] per Kirby J; R v Birks(1990) 19 NSWLR 677 at 682–685; TKWJ v R (2002) 212 CLR 124 at [8]; Ali v R (2005) 79 ALJR 662 at [7].
Steytler P, in deciding in Rinaldi that the appellant was not denied a fair trial, said, at [148]:
It is always difficult, in an instance of word against word, to make any confident assessment of credibility. However, if it was necessary to do so I would prefer the evidence of [the trial counsel]. It seems to me that it would be an extraordinary thing for experienced senior counsel to advise a client not to give evidence only because this would give her the right to address last. While [the trial counsel] had no specific recollection of the conversation, I would be prepared to accept her evidence that she had never advised a client to pursue that course on so slender a basis. However, it seems to me that no miscarriage has in any event been demonstrated. As I have said, the circumstantial case against the appellant was very strong, he has no alibi and, it seems, there was fertile ground upon which to cross-examine him concerning, at the very least, his animosity towards [the deceased]. Further, unlike the appellant in Nudd (see at [29] and [160]), the appellant did not explain to the Court what relevant evidence he could have given, with the result that there is no reason to believe that his evidence would have assisted his case. In those circumstances, and in circumstances in which he did not, on his own evidence, raise any disagreement with his counsel's suggestion, or seek to revisit it at any subsequent time prior to the completion of the prosecution case, there is nothing to support his contention that he was denied a fair trial or that there was otherwise any miscarriage as a consequence of [the trial counsel's] advice.
Also see Nudd v The Queen (2006) 80 ALJR 614; Ali v The Queen (2005) 79 ALJR 662; TKWJ v The Queen (2002) 212 CLR 124; R v N [2004] Qd R 328; R v ND [2004] 2 Qd R 307; R v Kyriacou(2000) 210 LSJS 296.
In the present case, I am not persuaded that Mr Sullivan failed or refused to give effect to a request or an instruction by the appellant that he wanted to give evidence. Indeed, I accept Mr Sullivan's denial that he did not fail or refuse to give effect to the appellant's request or instruction to give evidence at trial in answer to the charges, or any other relevant request or instruction. My preference for Mr Sullivan's evidence over the appellant's evidence before this Court is based upon the unlikelihood that an experienced legal practitioner would fail or refuse to give effect to a request or an instruction by an accused on a fundamental matter in a criminal trial, and also upon the following objective considerations:
(a)At the beginning of the trial, Mr Sullivan said that there would be only one defence witness, namely, the appellant's mother. Similarly, at the close of the prosecution case, after taking instructions from the appellant, Mr Sullivan announced in the absence of the jury, and then in the presence of the jury, that the appellant would not be giving evidence, and that the appellant's mother would give evidence. The appellant did not protest on either occasion.
(b)In the appellant's affidavit sworn 22 June 2006, in support of his application for an extension of time, the appellant said, 'However, my understanding was that, because I did not give evidence and did not have my say before the jury, upon my trial counsel's advice, I should be considered for an appeal against conviction'. (emphasis added) This statement implies that the appellant took the advice of his counsel and chose not to give evidence.
(c)The appellant's defence comprised a denial and reliance on inconsistencies in the respondent's case. In those circumstances, it is not unrealistic that the appellant would decide, after discussion with Mr Sullivan, not to give evidence.
(d)Mr Sullivan followed the appellant's instruction on other matters; for example, he put to the appellant's children, in effect, that the allegations were concocted, which the children denied.
Ground 1(a) of the proposed grounds of appeal is without merit.
The appellant did not advance a positive defence; that is, as I have mentioned, his defence comprised a denial and reliance on inconsistencies in the respondent's case. Mr Sullivan cross‑examined each of the children, Dr Steven Resnick (a medical practitioner who examined each of the children on 9 April 2003), and the children's mother. He endeavoured to refute the children's evidence, within the limits of his instructions. Mr Sullivan did not put to the children's mother that the allegations were concocted by her out of a desire for revenge in response to the appellant's infidelity. The mother's evidence related principally to the treatment of her daughter's vaginal discomfort, the disclosure by the children to her of the allegations, and the medical examination of the children. There may have been a sound tactical reason for not putting to the mother the contention that the allegations were concocted by her or that she had coached the children, in circumstances where those matters had already been put to the children in cross‑examination and denied by them. In my opinion, ground 1(b) of the grounds of appeal has not been made out.
The appellant has not established that he did not have a fair trial or that there was otherwise a miscarriage of justice.
Conclusion
Neither of the proposed grounds of appeal has a reasonable prospect of success. I would therefore refuse the appellant's application for an extension of time to apply for leave to appeal.
MILLER AJA: I agree with Buss JA.
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