Alkhair v R

[2016] NSWCCA 4

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Alkhair v R [2016] NSWCCA 4
Hearing dates:	6 November 2015
Decision date:	05 February 2016
Before:	Macfarlan JA at [1]; Rothman J at [72]; Bellew J at [73]
Decision:	(1) Grant leave to appeal; (2) Refuse the applicant leave under r 4 of the Criminal Appeal Rules to rely upon his grounds of appeal against conviction insofar as that leave was necessary; (3) Dismiss the appeal.
Catchwords:	CRIMINAL LAW – aggravated break and enter– application for leave to appeal against conviction and sentence – applicable principles where incompetence of trial counsel alleged – whether reasonable explanation for counsel’s conduct of trial – whether miscarriage of justice occurred – whether sentence manifestly excessive – parity – leave under r 4 Criminal Appeal Rules refused – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), s 112(2) Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Appeal Rules (NSW), r 4
Cases Cited:	Ahmu v R [2014] NSWCCA 312 Ali v R [2005] HCA 8; 79 ALJR 662 Green v The Queen [2011] HCA 49; 244 CLR 462 Matthews v R [2013] NSWCCA 187 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 Outram v R [2013] NSWCCA 329 R v Birks [1990] 19 NSWLR 677 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Vella v R [2015] NSWCCA 148 Weininger v The Queen [2003] HCA 14; 212 CLR 629
Category:	Principal judgment
Parties:	Adnan Alkhair (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant (self-represented) M Cinque SC (Respondent)   Solicitors: C Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/84587
Decision under appeal	Court or tribunal: District Court Jurisdiction: New South Wales Date of Decision: 25 February 2014 (conviction) 22 August 2014 (sentence) Before: King SC DCJ File Number(s): 2013/84587

Judgment

1. MACFARLAN JA: Following a trial in the District Court before a judge and jury, the applicant, Mr Adnan Alkhair, was convicted of an offence, contrary to s 112(2) of the Crimes Act 1900 (NSW), of breaking and entering a dwelling- house in Alexandria, Sydney, and committing a serious indictable offence therein, namely stealing a number of items in circumstances of aggravation, being his presence in company with Mr Michael Hanna. The applicant was subsequently sentenced to 4 years imprisonment, with a 3 year non-parole period.

2. He seeks to appeal against his conviction and sentence on the grounds outlined below. As none of the points he now makes in relation to his conviction were made at his trial, he requires leave under r 4 of the Criminal Appeal Rules (NSW) to advance them to the extent that they raise questions of law. To the extent that they raise questions of fact, he requires leave under s 5(1) of the Criminal Appeal Act 1912 (NSW). He also requires leave under that section to appeal against his sentence.

3. The subject dwelling-house is a ground floor unit with its main entrance located in an internal hallway. The unit has a small patio with a low wall and a metal fence on top that encloses the patio from the street. A sliding door and window with glass louver panels separates the inside of the unit from the patio. If removed, the louvers allow access through the window into the unit.

4. On 2 October 2012 the unit’s residents left for work after locking and securing the premises. When they returned that evening they observed that the front door was slightly ajar and items appeared to have been stolen. A number of the glass louvers had been removed from the window and left in the patio. The residents phoned the police who later identified the applicant’s fingerprints on all but one of the louvers that had been removed. Mr Hanna’s fingerprints were also found on some of the louvers.

5. At the trial, the Crown tendered the transcript of a police interview of the applicant (the “ERISP”). In it, the applicant said that he regularly injected heroin and that on a number of occasions he and others had entered the outside areas of premises, including in Alexandria, in order to use drugs out of public sight. He repeatedly asserted that he had never broken into a house, although he said that he had robbed banks. He also said that it was possible that he had gone to the premises to take drugs on the patio and that his fingerprints may have come to be on the glass louvers as a result of him putting his hands on them to open them and see whether anyone who might disturb them was inside. At the commencement of the interview he said that he had been employed in cement rendering work in the “inner city” of Sydney.

6. In response to the applicant’s counsel’s objections, all references to drug taking and other criminality were removed from the ERISP prior to its admission into evidence. This occurred partly as a result of concessions by the Crown and partly as a result of the trial judge’s rulings.

7. Although the Crown indicated to the Court, in the absence of the jury, that it would call Mr Hanna to give evidence, it did not do so. The applicant did not give evidence nor call any other evidence.

8. In his address to the jury, the applicant’s counsel contended that in his ERISP the applicant had given a plausible reason, other than involvement in breaking and entering, for his fingerprints being on the window louvers. That was that the applicant might have put them there when working as a cement renderer in the “inner city”, which counsel suggested to the jury may include Alexandria. Counsel referred to evidence of renovations occurring at the unit and said that the Crown had not sought to explain who did the renovations and when. Counsel added that the photographs in evidence showed rendered brick work at the premises. On the basis of these and other matters, counsel contended that the jury could not be satisfied that the Crown had proved its case beyond reasonable doubt.

9. The grounds, to which I shall refer in detail below, upon which the applicant seeks leave to have his conviction quashed include challenges to the admission of the ERISP into evidence and assertions that his rights to give evidence and to call witnesses, in particular Mr Hanna, were denied.

10. For the reasons that appear below, I consider that none of the applicant’s grounds have any merit and that his appeal should be dismissed.

11. In support of his application to this Court, the applicant swore to the correctness of the contents of an unwitnessed affidavit which included the following:

“22.   Three days before my trial I met my barrister Marcus Jahasz. He advised me there will be legal arguments before the trial. I asked him to have my ERISP thrown out as I was under the influence of heroin.

23.   My barrister told me ‘there is a part of your interview where you say you’re a Cement renderer and I need it left in.’ I could not understand why he would keep my statement just because I said I was a cement renderer.

24.   My barrister also said ‘I don’t want you on the stand as the prosecutor will tear you apart.’ I said ‘well how else will the jury hear my defence.’ He replied ‘there is too much doubt, leave the onus on them.’

25.   My solicitor Thelma Gray said ‘I’m going to bring you a paper to sign, stating you are happy with how we are running your case.’ This was never spoken of again.

26.   When the trial commenced I observed my Record of Interview being altered to delete any reference to drugs and gaol. I was disturbed that my defence, my version of events, which I was using drugs at the property had been eraced from the interview. I attempted to raise the matter with my solicitor and barrister but was ignored.

27.   My solicitor gave me a pen and paper and told me if I wanted to say something to write it down but these notes were also ignored.

28.   My barrister told [me] a police officer had told him that she and owner of the property replaced louvers into their frame prior to forensics dusting them for prints.

29.   When my barrister asked her questions she provided different answers. At one point my barrister said ‘she’s lying, Your Honour’. The jury was excused and after argument the jury returned and this line of questioning was not pursued.

30.   When the Crown said they would not be calling Michael Hanna I was shocked when my barrister said we were not calling him either. I said to him ‘why don’t you call him up?’ He replied ‘I don’t want to put Him on the spot.’ Then turned his back on me.

31.   I understand Michael Hanna has since died.

32.   I said to my barrister ‘I want to give evidence’. But this request was ignored.

33.   When the Judge began his summing up he came upon the part of my edited ERISP that says ‘I put my hands on the window to see if somebody was home.’ This had been left in with no explanation as to why. I was beside myself by then. I had had enough. I felt my trial was a nightmare. I felt that I had been gagged long enough and it was to my detriment. I had a massive panic attack as I thought, ‘if my lawyer won’t speak for me then I will speak for myself.’

34.   I jumped to my feet and spoke directly to the Judge. ‘If you’re gonna tell them (the jury) tell them the truth, enough lies!. If I was a Juror and I heard someone say what you’re saying that I said, I’d find them guilty! My interview is so edited!’ The Judge said, ‘sit down.’

I said, ‘I don’t wanna be here.’ Addressing the Corrective Services Officers behind me I said, ‘take me downstairs if I ain’t got a voice in my own trial I don’t wanna be here.’

And in protest I turned my back to the court.

The Judge ordered the jury to leave and left the bench immediately.”

12. Later in his affidavit, he said:

“ …

39. I saw the 12th juror brought into the courtroom in a wheelchair. Apparently she was in hospital the night before. I could see she was immensely uncomfortable and very distressed.”

13. In response, the Crown called the applicant’s trial solicitor and counsel to give evidence. The solicitor’s evidence was that the applicant was advised about the way in which counsel proposed to conduct the trial and accepted that advice. Counsel’s evidence was that his view at trial was that admitting the drug-related portions of the ERISP would have been severely prejudicial, and indeed fatal, to the applicant’s case whereas the admission of the reference to the applicant’s cement rendering work provided a basis for arguing that the Crown had not proved its case because it had not proved that the applicant’s fingerprints were not put on the louvers in the course of renovation of the unit. He said that he and the applicant had discussed whether the applicant should give evidence on a number of occasions and that he had told the applicant that his view was that it would be prejudicial to his case for the applicant to do so.

PRINCIPLES CONCERNING COUNSEL’S ALLEGED INCOMPETENCE

14. As a number of the applicant’s grounds of appeal criticise his trial counsel’s conduct, it is necessary to refer to the principles applicable in this context.

15. In R v Birks [1990] 19 NSWLR 677, the accused’s trial counsel inadvertently failed to cross-examine the principal prosecution witness on a number of relevant matters. On appeal, this Court set aside his conviction and ordered a new trial on the basis that there had been a serious miscarriage of justice. Gleeson CJ (with whom McInerney J agreed) stated the following relevant principles:

“2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention” (at 685).

16. Gleeson CJ went on to describe the situation at the trial below as “unusual and extreme”. Importantly, his Honour said that the failure to cross-examine related to the whole of the first charge against the accused and regarded the combination of circumstances resulting directly or indirectly from the inadequate cross-examination as giving rise to a miscarriage of justice (at 686).

17. In TKWJ v The Queen [2002] HCA 46; 212 CLR 124, the appellant criticised his trial counsel for deciding not to adduce evidence of the appellant’s good character in his trial for various sexual offences. The High Court dismissed his appeal.

18. In that case, Gleeson CJ described counsel’s decision as “certainly not self-evidently unreasonable, or inexplicable” (at [8]). Rather, his Honour regarded it as “the kind of tactical decision routinely made by trial counsel, by which their clients are bound” and referred to the adversarial system proceeding “upon the assumption that parties are bound by the conduct of their legal representatives” (ibid).

19. Gaudron J (with whom Gummow and Hayne JJ agreed) emphasised, as did all other members of the Court, that the critical question to be answered was whether a miscarriage of justice had occurred (at [30]-[31]). Her Honour continued:

“32   An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial.”

20. McHugh J concluded that “[t]he decision not to call the good character evidence was a matter falling within the discretion of counsel as to how he would conduct the defence and did not constitute a material irregularity that led to a miscarriage of justice” (at [52]). Later, his Honour said:

“74   … Ordinarily, a party is held to the way in which his or her counsel has presented the party's case. That is because counsel is in effect the party's agent. Counsel is ‘ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted.’ The discretion retained by counsel in the running of a case is very wide. Counsel may even settle a case without seeking the client's consent. Blackburn J noted in Strauss v Francis that ‘the apparent authority with which [counsel] is clothed when he appears to conduct the cause is to do everything which, in the exercise of his discretion, he may think best for the interests of his client in the conduct of the cause’” (citations omitted).

21. In Ali v R [2005] HCA 8; 79 ALJR 662, the appellant contended that he had been denied a fair trial by reason of his trial counsel’s incompetence. The High Court dismissed the appeal. Hayne J (with whom McHugh J agreed) observed:

“25   An appellate court does not and may not know what information trial counsel had when deciding whether or not to object to evidence. That is why, in TKWJ, I concluded that the question of miscarriage does not turn on a factual inquiry into why trial counsel acted or did not act in a particular way. That kind of inquiry cannot be made. Rather, the question is whether there could be a reasonable explanation for the course that was adopted at trial. If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred” (citations omitted).

22. In Nudd v The Queen [2006] HCA 9; 80 ALJR 614 the High Court rejected the appellant’s case that his trial counsel’s incompetence resulted in a miscarriage of justice.

23. In that case, Gleeson CJ observed:

“9   … A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is 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. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v The Queen, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct” (citations omitted).

24. Gleeson CJ then referred to the “awkward procedure” involved in an appellate court attempting to ascertain a full explanation and understanding of the reasons that actuated trial counsel’s conduct, leading to his Honour saying:

“10   … There could be circumstances in which it is material to know that a course was taken contrary to instructions. The possibility of a need to know the reason for conduct cannot altogether be eliminated. In general, however, as far as justice permits, the inquiry should be objective. As a matter of principle, such objectivity is consistent with the assumptions on which the adversarial system operates. As a matter of practicality, it avoids the difficulties inherent in turning a criminal appeal into an investigation of the performance of trial counsel.”

25. Gummow and Hayne JJ referred to the appellant’s complaints that his trial counsel had failed to give him proper advice and continued:

“27   … But a failure to give proper advice to the appellant would be significant only if, as a result of that failure, something was done or not done at trial that was, or occasioned, a miscarriage of justice. For the reasons given in TKWJ, the inquiry about miscarriage must be an objective inquiry, not an examination of what trial counsel for an accused did or did not know or think about. The critical question is what did or did not happen at trial, not why that came about” (citations omitted).

26. In relation to the appellant’s complaint that his counsel did not call him to give evidence at the trial, their Honours said:

“31   It would have been well open to competent counsel to conclude that the very slight gains that might be obtained by putting forward a positive defence, of the kind that the appellant said he had, were well and truly outweighed by the disadvantages that would likely be suffered were the appellant to give evidence. It would, then, have been well open to competent counsel to conclude that the appellant should be advised against giving evidence in his defence. That being so, the fact that the appellant did not give evidence at his trial has brought about no miscarriage.”

27. In Matthews v R [2013] NSWCCA 187 this Court said the following in response to a ground of appeal alleging that the appellant’s counsel had been negligent in his conduct of the trial:

“62   In assessing complaints about counsel's conduct it must be borne in mind that the relevant inquiry is whether what occurred or did not occur at the trial occasioned a miscarriage of justice (TKWJ v R [2002] HCA 46; 212 CLR 124 at [79] per McHugh J, Ali v R [2005] HCA 8; 214 ALR 1 at [18] per Hayne J). None of the alleged failings of the appellant's counsel is even close to the potential category of errors by counsel adverted to by McHugh J in TKWJ at [76], namely those that are of such a nature that of themselves they might render a trial unfair (see Nudd v R [2006] HCA 9; 80 ALJR 614 at [19] per Gleeson CJ and [87] per Kirby J). Instead the nature of his complaints are such that what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24] per Gummow and Hayne JJ; TKWJ at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J).

“63   In conducting that inquiry a number of related matters should be noted. First, there is vested in counsel for an accused person control over and responsibility for the manner in which the trial will be conducted (TKWJ at [74] per McHugh J). Second, relevant unfairness will not be established simply because an ‘apparently rational decision’ by trial counsel produced adverse consequences for the accused (TKWJ at [16] per Gleeson CJ). Third, inquiries into the subjective thought processes of counsel for taking the steps they did at the trial are to be avoided. Instead the question is whether there could be a reasonable explanation for the course that was adopted at trial (Ali per Hayne J, with whom Gummow J agreed at [25]; TKWJ at [110] per Hayne J). If there could be such an explanation then no error or defect in the trial occasioning any miscarriage of justice is shown to have occurred (Ali id). Fourth, although the inquiry into whether there was an explanation for counsel's conduct is an objective one, there are some perhaps limited circumstances in which it is necessary for the appeal court to be apprised of material such as counsel's instructions (Nudd at [10] and [17] per Gleeson CJ).”

28. In Outram v R [2013] NSWCCA 329 an applicant for an extension of time for leave to appeal criticised his trial counsel’s failure to call evidence of the applicant’s good character, to properly cross-examine the complainant, to adduce the applicant’s evidence properly and to ensure that only relevant material in the applicant’s ERISP interview transcript was admitted into evidence. Leeming JA (with whom Johnson and Hall JJ agreed) concluded that the applicant had not advanced a sufficiently cogent argument that there had been a miscarriage of justice to warrant the grant of an extension of time. In relation to the complaints concerning the adducing of evidence from the applicant and the ERISP transcript, his Honour said:

“53   The other matters complained of in proposed ground 2 are in essence complaints about the conduct of the defence by which the applicant is bound which fall short of something so significant that it amounts to a miscarriage of justice. It is to be recalled that although it is not necessary to characterise the conduct as ‘flagrant misconduct’ or ‘egregious error’, it is also insufficient to establish that counsel has been ‘negligent or otherwise remiss’. To the extent that the question is whether the course taken by counsel was capable of explanation (see TKWJ at [27]-[28] and Nudd at [31] and [157]), that test would be satisfied.”

29. In Ahmu v R [2014] NSWCCA 312, this Court dismissed an appeal in which the appellant contended that he had suffered a miscarriage of justice as a result of his trial counsel’s incompetence. In reliance on Nudd (at [10]), Basten JA emphasised that the focus of attention for such a question should be the objective features of the trial process and rejected an affidavit sworn by trial counsel on the basis that it did not add anything to the inferences otherwise available from the course of the trial (at [31]). On the other hand, Adams J considered the affidavit admissible because it elucidated trial counsel’s reason for taking his chosen course and countered what would have been a misleading impression that would have arisen from the objective circumstances alone (at [55]).

30. In Vella v R [2015] NSWCCA 148, evidence of the trial counsel’s conduct of the trial was led in this Court. Beech-Jones J (with whom Gleeson JA and Hidden J relevantly agreed) said in relation to [63] of Matthews:

“94   The interaction of the third and fourth principles leaves some scope for uncertainty as to the extent to which evidence from an appellant’s former Counsel and solicitor explaining their conduct can be received and considered in determining a complaint that a miscarriage of justice arose from it (see Ahmu at [31] per Basten JA and at [53] per Adams J). In Nudd Gleeson CJ stressed that so ‘far as justice permits, the enquiry should be objective’ (at [10]) but added ‘there may be circumstances where it is relevant to ask why some act or omission occurred’ (at [10]). One example that his Honour identified was a determination of whether ‘counsel took a certain course upon the instructions of the client’ (id).”

31. I draw from these authorities the following principles relevant to the present case:

1. To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel’s conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial.

2. Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf.

3. Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant’s legal representatives’ reasoning at trial or to evidence as to communications between the appellant and those representatives.

4. The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open.

RESOLUTION OF THE APPEAL

32. I turn now to consider the applicant’s grounds of appeal as identified in his written submissions and filed statements of grounds.

“1. Inclusion of ERISP made whilst appellant under the influence of prohibited drug”;

“2. Editing of ERISP with inclusion of information leading to assumption of guilt without proof”; and

“3. Editing ERISP to leave appellant without valid reason or alibi for being at the crime scene leading to assumption of guilt”

33. The unedited ERISP included the following:

“Q91   And what effect does heroin have on you?

A   It makes me feel good, it makes me forget about all my, um, sadness, my life.

Q92   Does it make you, do you remember everything you do when you’re on heroin?

A   Everything.

Q93   Everything you think.

A   I’m on heroin right now as I’m talking to you.

Q94   When was the last time you used [it]?

A   About two or three hours ago.

Q95   So you remember everything you do on heroin?

A   Yes.

…

Q103    … Just to clarify then you’re saying that you took some heroin today ---

A   Yeah.

Q103   --- three or four hours ago, are you still affected by those drugs as we speak?

A   No I’m all right, I can answer my questions I, I’m, I’m, I’m, I’m not impaired or anything like that.

Q104   How much heroin did you actually, actually take?

A   Compared to a full on heroin addict not much at all.

Q105   And how did you ---

A   Fifty dollars worth.

Q105   --- and how did you take the heroin?

A   I inject it.

Q106   And how long does that heroin normally affect you?

A   It makes me feel normal, that’s all it does to me, at the start it used to get me stoned and stuff now it just makes me feel normal.”

34. Nothing in these answers indicates that the applicant’s trial counsel should have objected to the tender of the ERISP on the basis that the applicant’s faculties were significantly impaired by heroin at the time of the interview. Such an objection, based on the terms of the ERISP, would not have had any realistic prospect of success.

35. The applicant’s trial counsel faced a difficult task in defending the applicant given that the applicant’s fingerprints were found on the glass louvers at the premises. Unless counsel could suggest to the jury a possible explanation for that, other than that the applicant was present to break, enter and steal from the unit, the applicant’s conviction would be inevitable. Theoretically, counsel could have refrained from objecting to the ERISP and instead relied on it to suggest to the jury that the applicant had been at the premises, with others, for the purpose of taking drugs whilst on the patio and had placed his fingers on the louvers in order to check whether there was anyone in the unit who was likely to disturb them. However, admission of the unedited ERISP, including its extensive references to the applicant’s drug taking, would have been highly prejudicial to his case. Unsurprisingly, as indicated in his evidence in this Court, trial counsel considered that conviction would almost inevitably ensue if that course were followed (Transcript p 26).

36. As a result, counsel decided to conduct the case differently. He successfully objected to the inclusion of any references to drug-taking or other criminality in the tendered ERISP. He then used the remaining reference to the applicant having been engaged in cement rendering work in the inner city to found a suggestion to the jury that the Crown had not excluded beyond reasonable doubt the possibility that the applicant had put his fingerprints on the glass louvers in the course of renovations, a reference to renovations of the unit having been made earlier in other evidence.

37. It was reasonable for counsel to take this course in attempting to secure an acquittal for his client. It could not have been taken if the ERISP had been excluded altogether as there would have been no evidence of the applicant’s work in cement rendering unless counsel called the applicant to give evidence. However, calling the applicant to give evidence also had the potential to be highly prejudicial to his defence as it would likely have revealed to the jury his extensive history of drug-taking and that his presence on the premises was in order to take drugs. It was therefore reasonable for his counsel to take the view that the applicant’s best chance of acquittal, even though slim, was to refrain from calling the applicant to give evidence and to object to the drug-taking and other criminality references in the ERISP, but otherwise not object to its tender.

38. These conclusions follow from considering the objective features of the trial. Trial counsel’s evidence in this court of his subjective reasons confirms their correctness despite it being unnecessary to rely on them to reach that conclusion.

39. Trial counsel’s decisions were rational and, in accordance with the principles I have stated above, bound the applicant regardless of whether they accorded with the applicant’s instructions (see for example TKWJ at [74] per McHugh J). None of the matters to which the applicant referred demonstrate that his trial counsel acted incompetently. The applicant therefore has no basis for asserting that a miscarriage of justice occurred.

40. Although it is unnecessary to do so, I add that the applicant did not in any event establish that the trial was not conducted in accordance with his instructions. Certainly, the evidence called in this Court revealed that the question of the applicant giving evidence was a topic discussed repeatedly and vigorously between himself and his counsel. His counsel’s evidence was that the applicant accepted his advice, albeit that he may have done so reluctantly. As the applicant’s evidence did not clearly indicate that he did not accept his counsel’s advice, his counsel’s evidence on that topic should be accepted.

41. Furthermore, the applicant’s evidence in this Court did not provide any support for his first ground of appeal as he did not provide evidence of any actual impairment of his faculties at the time of the interview. Rather, he said that such could be inferred from his making of statements that he would not ordinarily make such as that he had not broken into and stolen from dwelling-houses but had (as was accurate) robbed banks. The making of such statements, which he subsequently contended was unwise, could not reasonably be taken as indicating that he was significantly affected by heroin during the interview.

“4. The Crown continually referred to the appellant’s prints being found at the point of entry”

42. The effect of the applicant’s submission in relation to this ground was that the Crown, without correction from the trial judge, misled the jury into thinking that the glass louvers with his fingerprints on them were found in their proper place, that is, acting as slats of the unit’s window. However, the evidence made it clear that the slats were in fact in their proper place when the residents left for work in the morning, that they found them lying in the patio when they returned and that the police replaced them in their slots for safety purposes. The jury could not have been under any misunderstanding in this respect.

43. This ground should accordingly be rejected.

“5. Contamination of evidence by crime scene officer and witness”; and

“6. Lack of care in the examination of the crime scene causing evidence to be contaminated”

44. Even if these assertions were correct which I do not suggest they are, the alleged contamination and lack of care could not detract from the fact that the applicant’s fingerprints were found on the glass louvers at the premises. These grounds should therefore also be rejected.

“7. No elimination prints taken and unknown prints found [were] not taken into account”

45. Again, these matters could not detract from the force of the evidence that the applicant’s fingerprints were found on louvers in the patio. This ground should therefore also be rejected.

“8 No receipts/proof of purchase provided for items allegedly stolen from the property”

46. There was no challenge at the trial to the residents’ evidence that items were stolen from the premises. In these circumstances, proof of their purchase was unnecessary.

“9 Officer provided incorrect evidence on the stand”

47. This ground refers to Constable Nadine Carroll’s denial in cross-examination that during a conference outside the Court she told the applicant’s counsel that one of the unit’s residents had handed her one of the louvers on the day in question. In the absence of the jury, the applicant’s counsel asserted that Constable Carroll had told him outside Court that one of the residents “had at least touched one of the louvers” (Transcript p 34). He submitted that she then said “something totally different in evidence” (ibid). However, the trial judge pointed out that this had not been the proposition put to Constable Carroll in cross-examination, rather, it had been suggested to her that one of the residents handed one of the louvers to her. On resumption of the cross-examination before the jury, Constable Carroll accepted that at least one of the residents had touched the louvers without wearing gloves.

48. The transcript, from which this description of events was taken, was relevantly verified by an unchallenged affidavit of a client services officer employed by the Reporting Services Branch of the Department of Justice (NSW). It does not support the proposition stated in this ground of appeal, which should therefore be rejected.

“10. Appellant was denied his right to committal”

49. This allegation is irrelevant to the fairness of the trial at which the applicant was convicted. I nevertheless note that the applicant’s trial counsel’s evidence before this Court was that he considered that it was not in the applicant’s interest to require a committal proceeding. Given the circumstances of the case, that was a rational view that he was entitled to take, and give effect to, in the course of his retainer by the applicant.

“11. Appellant was denied the right to have witnesses he asked for give evidence”

50. This ground refers to the fact that the applicant’s co-accused, Mr Michael Hanna, did not give evidence at the applicant’s trial. Prior to the trial, Mr Hanna pleaded guilty to an aggravated break, enter and steal charge in relation to the events in question. The Crown initially indicated, in the absence of the jury, that it would call Mr Hanna to give evidence but subsequently resiled from that. The applicant’s trial counsel’s evidence in this Court was that he considered calling Mr Hanna in the applicant’s case but decided not to because Mr Hanna had declined to confer with him beforehand and had indicated that he did not want to give evidence. Unsurprisingly, counsel took the view that he could not reasonably call Mr Hanna without knowing what Mr Hanna would say.

51. Counsel’s decision was a rational one taken in order to advance his client’s interests and pursuant to the authority that his retainer conferred upon him. There is no basis for concluding that the decision gave rise to a miscarriage of justice.

“12. Appellant’s outbursts were neither noted or recorded”

52. The applicant interrupted the trial judge’s Summing-Up a number of times with comments about the edited nature of the ERISP. These are recorded in the transcript and there is no reason to conclude that not all of what he said was recorded. In any event, an omission from the transcript would not of itself give rise to a miscarriage of justice.

53. In his Additional Grounds of Appeal, the applicant alleged that the jury would have been adversely influenced by the statements that the applicant alleges that he made:

“If you’re gonna tell them, tell them the truth, enough lies. If I was a juror and I heard someone say what you’re saying what I said, I’d find them guilty. My interview is so edited.”

54. The statements to which this submission refers appear to be the following statements recorded in the transcript of the trial:

“ACCUSED: … (not transcribable) … of course it’s guilty, of course that’s guilty. Are you for real? Are you for real? Of course that’s guilty. I’ve done nothing. Tell them what I said. I want a defence … (not transcribable)” (at p 34).

55. However, although these statements were made, they were made in the absence of the jury. Those made in the presence of the jury were:

“ACCUSED:   Edited interview, you know it’s a edited interview, it doesn’t make sense.

…

It’s a edited interview … (not transcribable)..

…

I’m telling the truth, stop lying, fuck.

…

Take me down, I don’t want to stay, take me down, let’s go, I don’t want to stay here.

…

I’m telling the truth .. (not transcribable) .. let’s go.

…

I don’t want to stay here. Let’s go please, I don’t want to stay here.

…

(not transcribable) … back downstairs, I don’t want to be here. I’m telling the truth. Stop lying. Can we go? Can we go? Can I go?

…

The fucking court’s shit. I told you why I was there for .. (not transcribable) .. Kangaroo court” (Transcript pp 32-34).

56. The trial judge instructed the jury to ignore the applicant’s comments and said, in relation to the applicant’s references to the ERISP being edited, that it had been edited “to remove from it matters that were entirely irrelevant to your consideration in this trial” (Summing-Up, p 36). As the statements to which the applicant’s submission refers (or ones to similar effect) were not made in the presence of the jury, they cannot have affected the fairness of his trial. Nor did the statements that the applicant made in the presence of the jury. These were appropriately dealt with by the judge’s further instructions to the jury and did not give rise to any miscarriage of justice.

“Mr Dobson cleaned patio two weeks prior to offence. Applicant could have been present at premises at any time during this period” (as formulated in the Crown’s submissions)

57. The submission implicit in this ground does not advance the applicant’s case any further than the way it was put on his behalf at the trial. As noted above, his counsel suggested there that the applicant’s fingerprints could have been placed on the glass louvers during the course of renovations and that this could have occurred at any time prior to the date of the offence. In any event, I note that in his evidence in this Court, the applicant admitted that he was present at the subject premises on the date of the offence, albeit to take drugs on the patio rather than to break and enter.

57. This ground of appeal should therefore be rejected.

“The jury’s verdict was compromised because an injured juror was in a wheelchair in obvious discomfort and the jury felt that the haste was to avoid further discomfort to the juror”

59. The jury retired to consider its verdict at 12.11pm on Friday 21 February 2014. It returned for two short periods to enable the trial judge to answer its questions. On Monday 24 February 2014 the Court was advised that a member of the jury had been in an accident and was in hospital and, as a result, the jury was excused for the day. It reconvened on Tuesday 25 February 2014, with the injured juror present, and returned a verdict of guilty at 11.04am.

60. The applicant submits that the jury’s verdict was compromised by what he says was the injured juror’s obvious discomfort. His counsel’s evidence in this Court was that he was aware of the injury but did not observe any signs of undue discomfort nor, apparently, did the trial judge. The jury did not indicate that there was any difficulty in it proceeding to consider its verdict and the time that it had to do so, taking into account the time taken up on the previous Friday, was substantial, bearing in mind the relatively simple nature of the case.

61. In these circumstances, there is no basis for concluding that the jury’s verdict was compromised and this ground of appeal should therefore be rejected.

THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

62. Following the applicant’s conviction, King SC DCJ sentenced him to a term of 4 years imprisonment, with a non-parole period of 3 years. The maximum penalty provided for the offence is 20 years imprisonment and the prescribed standard non-parole period is 5 years.

63. Maiden SC DCJ had earlier sentenced the applicant’s co-offender, Michael Hanna, to 2 years and 6 months imprisonment, with a non-parole period of 1 year and 6 months. Mr Hanna was given a 25% discount for his early plea of guilty before the trial.

64. The applicant seeks leave to appeal against his sentence on the ground that it is manifestly excessive, his particulars of this contention being:

“(a)   There should have been greater parity given with the sentence the co-offender Michael Hanna received.

(b)   The applicant received double the non-parole period that Michael Hanna received.

(c) The offence is a less serious example of offences under s 112(2) of the Crimes Act 1900.”

The Remarks on Sentence

65. The sentencing judge’s thorough Remarks on Sentence record, inter alia, the following:

1. At the time of committing the subject offence, the applicant was on parole in respect of two other separate offences. One was an offence of robbery while armed with a dangerous weapon, for which he received a sentence of 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months beginning on 16 December 2005. When that sentence was imposed, four other matters were taken into account on a Form 1 and the applicant was also sentenced in respect of three further offences for which he received periods of imprisonment which had expired prior to his being released on parole in relation to the robbery offence.

2. At the time of the subject offence, the applicant was also on parole in respect of an offence of enter a building or land with intent to commit an indictable offence. He was released on parole in respect of that offence on 22 July 2012. About two months later, he committed the subject offence.

3. The subject offence was committed during the day time, with effectively no damage to property and at a time when it was anticipated that the unit would not be occupied. In those circumstances, his Honour regarded the offence as falling within the lower range of objective seriousness.

4. The applicant was approximately 38 years of age at the time of sentence. He had a long criminal history which his Honour described as “horrendous”. Similarly, he had a long history of drug abuse which continued even whilst he was in custody.

5. He had committed numerous violent offences. His Honour said that the applicant’s “criminal history is indicative of a continuing contempt for the law, as well as being indicative of an ongoing failure to address any of his problems relevant to his offending behaviour”.

6. His Honour found that the applicant had “no remorse, no contrition, and it cannot be said that there is a good prospect of rehabilitation nor a low risk of re-offending”.

7. There were no special circumstances that would justify any variation in the statutory relationship between the non-parole period and the balance of term.

8. It appeared to the primary judge that, in light of Maiden SC DCJ’s Remarks on Sentence in respect of Mr Hanna, Mr Hanna had made a “substantial effort to address his drug problem”, leading to a finding of special circumstances.

9. Mr Hanna was, like the applicant, in breach of a parole order at the time of his offence but the applicant’s criminal history was, his Honour said, “certainly more significant than that of Mr Hanna”, although he said that that might be explained to some extent by the fact that Mr Hanna is some seven years younger than the applicant.

Parity

66. There may be appellable error even if a sentence under appeal is not otherwise excessive “[w]here there is a marked disparity between sentences [imposed on co-offenders] giving rise to the appearance of injustice” (Green v The Queen [2011] HCA 49; 244 CLR 462 at [32]). The Court will however refuse to intervene “where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise” (ibid at [31]).

67. Bearing in mind the 25% discount, Maiden SC DCJ’s starting point in sentencing the co-offender (Mr Hanna) must have been a sentence of 40 months. The sentence imposed on the applicant was 48 months. Mr Hanna’s lower sentence and the difference in the statutory ratio (resulting from the finding of special circumstances) was justified by his apparent significant movements towards rehabilitation as compared to the applicant’s lack of progress in that respect. As I have noted, King SC DCJ concluded that there was “an ongoing failure [by the applicant] to address any of his problems relevant to his offending behaviour”.

68. The significant difference between the applicant’s and co-offender’s criminal records (see [66(9)] above) also served to explain the differences between their sentences. Taking the different criminal histories into account did not amount to sentencing the applicant again for offences of which he had earlier been convicted (Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [32]).

69. In these circumstances, I do not consider that there is any disparity between the sentences imposed upon the applicant and his co-offender such as could give rise to a justifiable sense of grievance on the part of the applicant.

Manifest excess generally

70. The applicant’s sentence was not in my view manifestly excessive. As he was entitled to do, the sentencing judge took into account as relevant factors both the maximum penalty and the applicable standard non-parole period, as well as the fact that the applicant was on parole in respect of two separate offences when he committed the subject offence, had a “horrendous history of criminal offending” and continued to use drugs, even whilst in custody. In these circumstances, the sentence was within the range of sentences that his Honour was entitled to impose notwithstanding that his Honour took the view that the applicant’s conduct was within the lower range of objective seriousness.

ORDERS

71. I propose the following orders:

1. Grant leave to appeal;

2. Refuse the applicant leave under r 4 of the Criminal Appeal Rules to rely upon his grounds of appeal against conviction insofar as that leave was necessary;

3. Dismiss the appeal.

72. ROTHMAN J: I agree with Macfarlan JA.

73. BELLEW J: I agree with Macfarlan JA.

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Decision last updated: 05 February 2016