Allen (a pseudonym) v The Queen
[2016] VSCA 59
•31 March 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0090
| NICOLAS ALLEN (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | MAXWELL P, REDLICH and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 February and 7 March 2016 |
| DATE OF JUDGMENT: | 31 March 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 59 |
| JUDGMENT APPEALED FROM: | DPP v [Allen] (Unreported, County Court of Victoria, Judge Smallwood, 20 January 2014 (Conviction)) |
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CRIMINAL LAW — Appeal — Conviction — Incest and indecent assaults — Conduct of defence counsel — Forensic decision to allege collusion between complainant and mother — Duties of counsel — Absence of instructions or evidence of collusion — No rational forensic benefit for pursuing explanation of collusion — Warning by trial judge that such cross examination would likely result in introduction of prejudicial bad character evidence — Failure to sufficiently challenge trial judge’s view — Evidence of bad character admitted — Failure of judge to preclude admission of irrelevant prejudicial evidence — Substantial miscarriage of justice — Appeal allowed — Retrial ordered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann SC and Mr H Venice | Valos Black & Associates |
| For the Crown | Mr D Trapnell QC (5 February 2016); Mr C Boyce SC (7 March 2016) | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
PRIEST JA:
Summary
In the applicant’s trial for serious sexual offences, his counsel advanced a ‘defence’ that the complainant had colluded with her mother to make false allegations of sexual impropriety against him. The suggested motive for the two colluding was a desire to effect cancellation of the applicant’s parole. The trial judge warned counsel that if he advanced such an explanation, it was likely that evidence of the applicant’s bad character would emerge, and made it clear that he would not prevent the admission of such highly prejudicial evidence. Despite the judge’s warning, counsel determined to pursue the explanation and put a positive assertion of collusion to the complainant’s mother.
During counsel’s cross-examination, and the prosecutor’s re-examination, of the complainant’s mother, evidence was adduced that the applicant had previously been involved in discreditable conduct of a serious nature, including violence towards the complainant’s mother and her children, and had been imprisoned for the commission of very serious offences. The evidence was inflammatory and highly prejudicial, and had little or no probative value. Thus, the very consequences foreshadowed by the judge were permitted to occur.
As counsel had neither instructions nor evidence to support a positive assertion of collusion, the assertion should not have been made. Further, there was no forensic benefit that could be derived from pursuing that allegation. Moreover, counsel failed adequately to resist the admission of irrelevant and highly prejudicial evidence. He asked open-ended questions, which resulted in the admission of much of the extremely prejudicial evidence. And the prosecutor, in re-examination of the mother, adduced further prejudicial evidence going to demonstrate the applicant’s bad character. All the while, the trial judge permitted the introduction of this irrelevant and highly prejudicial evidence. These matters in combination resulted in a substantial miscarriage of justice. Our reasons for those conclusions follow.
The convictions
Following a five day trial in the County Court, the applicant was convicted of one charge of incest (charge 1) and eight charges of indecent act with a child under 16 (charges 2 to 9). Prior to the jury being empanelled, he had pleaded guilty to a single charge of making a threat to kill (charge 10).
On 31 January 2014, the judge imposed a total effective sentence of seven years and three months’ imprisonment upon the applicant, and fixed a non-parole period of five years and three months.
The applications in this Court
The applicant did not file an application for leave to appeal against conviction within the prescribed time. An application for extension of time within which to make application for leave to appeal against conviction was, however, filed more than 13 months after conviction. Although the application was not opposed by the respondent, the Registrar refused the application on 2 June 2015. As is his right, the applicant elected to have the application dealt with by the Court. Once again, an extension of time was not opposed by the respondent.
Pivotal to any consideration of the application to extend time were the merits of the proposed application for leave to appeal against conviction. Soon after the hearing commenced in this Court on 5 February 2016, it became apparent that an assessment of the merits required a close examination of the conduct of the applicant’s trial counsel. A serious question arose as to his competence (or lack thereof) in the conduct of the applicant’s trial. As a result — and so as to extend a measure of fairness to trial counsel (among other things) — the hearing of the application was adjourned. Directions were given that trial counsel be notified of the criticisms being levelled at his conduct, and a timetable was set for the filing of any affidavit by trial counsel,[2] and any further material by the applicant and respondent.
[2]See Knowles (a Pseudonym) v The Queen [2015] VSCA 141, [127] et seq (Ashley, Redlich and Priest JJA) (‘Knowles’). See also Alkhair v R [2016] NSWCCA 4, [31] (Macfarlan JA).
In the result, the applicant’s trial counsel declined to provide an affidavit. The applicant chose, however, to file an affidavit of his own, sworn on 25 February 2016. (We will later return to the contents of that affidavit.) At the direction of the Court, the applicant’s affidavit was also provided to trial counsel, but he opted not to respond to it. It should further be noted that, although the respondent initially gave notice that it wished to cross-examine the applicant on his affidavit, ultimately that course was not pursued, so that the contents of the affidavit were not the subject of challenge.
In Jopar,[3] Priest JA discussed the principles which inform an application for extension of time,[4] and we need not repeat them. It is convenient to permit consideration of the application to extend time to abide consideration of the merits of the proposed application for leave to appeal. As will become clear, in our view the contemplated application for leave to appeal against conviction — and the appeal — should succeed. That conclusion dictates that the extension of time must be granted.
[3]Jopar v The Queen (2013) 275 FLR 454.
[4]Ibid 464–5 [56]–[57].
The evidence
So as to understand the issues raised for consideration, it is necessary to summarise the evidence at trial.
Throughout the period of the offending, the complainant, ‘WLK’, was aged 13 years. She was the daughter of the applicant’s de facto spouse, ‘BNK’, with whom the applicant had been in a relationship for some nine years. The applicant was thus WLK’s step-father.[5] During the period embraced by the indictment he was aged 29 years.
[5]Section 44(2) of the Crimes Act 1958 provides:
(2)A person must not take part in an act of sexual penetration with a person under the age of 18 whom he or she knows to be the child or other lineal descendant or the step-child of his or her de facto spouse.
BNK had two children from a previous relationship (WLK and her younger sister). She and the applicant had two children together, born respectively in 2006 and 2012.
The applicant’s offending involved four distinct episodes.
On 23 March 2013, the applicant had been asleep on a couch in the lounge-room. WLK woke the applicant when she went into the lounge-room to get a toy, and the applicant asked her for a cuddle. After the complainant lay down, the applicant put his finger into her vagina (charge 1). He then took the complainant’s hand and placed it on his penis (charge 2). The applicant then sucked WLK’s breast (charge 3), and touched her vagina again (charge 4). He asked her, ‘Does it feel good?’, and she answered ‘No’. The applicant then said, ‘Don’t tell anyone’. These incidents represented the first episode of offending.
The second episode of offending occurred between 23 March 2013 and 15 May 2013, when the applicant entered the complainant’s bedroom and placed her hand on his penis (charge 5). When WLK tried to push the applicant away, he threatened to put his penis down her throat.
The third episode also occurred between 23 March 2013 and 15 May 2013, and involved the applicant walking into the bathroom whilst the complainant was showering, and masturbating his penis in front of her (charge 6).
The fourth episode of offending was in the same period as the second and third episodes, and occurred when the complainant’s mother had taken two of her other children to the shops. After WLK had been in the shower, the applicant went into the bathroom. He pushed WLK onto a vanity unit or sink and proceeded to rub his penis against her vagina (charge 7). He said, ‘I’m not going to put it in you’. WLK was crying, and tried to push the applicant away. The applicant then masturbated his penis in front of her, resulting in the applicant ejaculating into the bath tub (charge 8). He said to the complainant, ‘Don’t let a guy put this stuff near you’.
The final incident took place on 15 May 2013. Whilst he was having a shower, the applicant called out and asked WLK to go into the laundry to check the hot water taps. When the complainant went into the laundry, the applicant — who was naked — placed his hands down her pants and touched her vagina (charge 9). She tried to push him away. The applicant threatened her, saying, ‘Shut up or else I’ll hurt you, trust me’.
WLK described much of the applicant’s sexual misconduct with her, and recorded her feelings, in a journal; and, in particular, in an entry dated ‘4/5/13’. In her evidence, WLK said that this entry was made on 4 May 2013. The journal was discovered by her mother on Friday, 17 May 2013, prompting her to go to the police station and report the applicant’s offending. BNK then collected WLK from school. She took WLK to the police station, and WLK took part in a ‘VARE’[6] interview.
[6]Video and audio recorded evidence.
Police also asked the complainant’s mother to make a ‘pretext’ call to the applicant. During that conversation, the applicant became angry and threatened to kill BNK (charge 10).
The applicant was arrested, interviewed and charged on 18 May 2013. In the course of his interview he denied the offending.
Later, on 9 June 2013, a school friend of WLK, ‘DI’, took part in a VARE interview with police. DI’s evidence was that, about three weeks previously, WLK had told her at school that the applicant had locked WLK in the laundry and touched her inappropriately on the breast and in the vaginal area. WLK was, DI said, upset.
The defence case at trial was a denial that the offending had occurred. We will later canvass in some detail the manner in which the defence case was put. For present purposes, it suffices to note that it was asserted that WLK had fabricated the allegations and, in effect, that WLK and her mother had colluded. The defence thesis was that, due to relationship difficulties that she had with the applicant, BNK wanted to have the applicant’s parole breached so that he would be returned to custody. A false complaint to police was the means by which this result was to be achieved. (In their evidence, however, both WLK and her mother denied that they had discussed the allegations with each other prior to WLK’s VARE interview.)
It is also noteworthy that, in the course of the trial, the prosecutor was permitted to adduce parts of the ‘Defence Response to Summary of Prosecution Opening’ through the informant. In the Defence Response — signed on behalf of the applicant by his then solicitors — the applicant admitted that he cuddled the complainant on the couch (see charges 1 to 4), although he denied any inappropriate touching. That part of the Defence Response was, however, inconsistent with assertions made by counsel in cross-examination to the effect that there had been no cuddling. Further, in the Defence Response the applicant also admitted that WLK had entered the laundry after he had a shower (see charge 9), although he denied any offending. That part of the document was inconsistent with the assertion made through counsel that the applicant may have been playing basketball at the relevant time.
Discussion
There is a single ground of appeal relied upon:
The trial of the Applicant miscarried in that evidence of the Applicant’s bad character was introduced in circumstances where there could be no forensic advantage associated with the introduction of that evidence.
As we have said, part of the ‘defence’ at trial was that WLK — in collusion with her mother — had fabricated the allegations of sexual impropriety. The motive for that collusion was said to be a desire to have the applicant gaoled.
Prior to the jury being empanelled, counsel for the applicant informed the trial judge that parts of the record of interview — which referred to ‘previous incarceration’ and ‘parole’ — would need to be excluded as a matter of ‘fairness’. In the course of further pre-empanelment submissions relating to the exclusion of discrete questions and answers, counsel for the applicant submitted that certain of the applicant’s answers, relating to his poor relationship with BNK (and the manner in which he would sometimes address her)[7] were ‘irrelevant’. That submission resulted in the following exchange:[8]
HIS HONOUR: Are you going to attack the mother and the nature of the relationship before you say it’s irrelevant?
[DEFENCE COUNSEL]: M’mm ---
HIS HONOUR: If there’s an attack launched on the mother, that the mother has promoted this and concocted it, all bets are off with the interview.
[DEFENCE COUNSEL]: The defence is that the daughter and the mother wanted him gone. But this is him saying that ‘I don’t say to her suck my dick in front of the children’. I don’t see how that’s relevant to ---
HIS HONOUR: Your defence is going to be an attack – a fairly massive attack on her – well basically accusing her of procuring perjury. And this is his description of the relationship. If the defence was going to be this didn’t happen and the mother was being left alone, I’d agree with you entirely.
[DEFENCE COUNSEL]: Well that won’t be the case, Your Honour, so maybe that should stay in.
[7]Among other things, the applicant told police: ‘Me and [BNK] (sic.) don’t have a great relationship. We talk to each other like [indecipherable] always have. Right? [BNK] said something like that, like I usually turn around with, “Suck me dick”, or “bang it in your arse”, or whatever — some stupid (sic.) — like that. Right? … I pause as soon as I say it and look around because of the children’.
[8]Emphasis added.
Shortly afterward, the judge said:
What I’m not going to allow to happen is that an assault is launched on the mother, accusing her of making up these allegations in collusion with her daughter and that she’s a horrible person, bompty bompty bompty bomp, (sic.) when his whether or not concessions as to the nature of the relationship have been excluded. …
It will be seen from these excerpts that, from very early in the piece, the judge anticipated that a defence ‘attack’ on the complainant’s mother — which involved an allegation of ‘collusion’ — would have significant adverse ramifications for the defence case. Quite obviously, his Honour thought that whether the nature of the relationship between the applicant and BNK was ‘irrelevant’ depended upon whether there was to be an attack on BNK; and in particular, an attack that had at its heart the assertion that BNK promoted and concocted perjury. If that were to be such an attack, then ‘all bets [were] off with the interview’. In other words, the trial judge was making clear to counsel that, unless the defence case was simply that ‘this didn’t happen’ and ‘the mother was being left alone’, then all of the otherwise irrelevant and prejudicial material excluded from the record of interview would be permitted to be introduced.
We pause to observe that it is not perspicuous to us why the judge thought that a confined defence allegation of collusion would thereby open the door to the admission of otherwise irrelevant and prejudicial evidence. Defence counsel did not, however, press such an argument with the trial judge. That is a matter to which it will be necessary to return.
Later, in the course of further discussion on parts of the record of interview (in which the applicant asserted that he did not have to sexually interact with his step-daughter because he had ‘numerous other people’ to whom he could turn for sex), counsel submitted that there were two relevant aspects to the defence case. The second relevant aspect was that BNK had written anonymously to the Parole Board in an attempt to have the applicant’s parole breached. The following was said:[9]
[9]Emphasis added.
[DEFENCE COUNSEL]: I don’t know that they’re relevant. One affair is relevant but the other affairs aren’t.
HIS HONOUR: Is that – I don’t want to – what I don’t want is that getting in – the Crown successfully, as I think they would, if she’s cross-examined about those sort of things and it’s all – all that stuff’s been taken out of the interview, which is all volunteered by him, we’ve got a problem.
[DEFENCE COUNSEL]: Yes. See, the defence case is – there’s two aspects of the defence case in relation to [BNK]. One is that she, and possibly [WLK], become aware of another child and the relationship breaking up, which is mentioned in the record of interview.
HIS HONOUR: Right.
[DEFENCE COUNSEL]: And the other is the fact that she is attempting to breach his parole, anonymously writing to the Parole Board and so forth.
HIS HONOUR: If you’re going to put all that, why are we worried about all this for?
[DEFENCE COUNSEL]: Well, no, I originally was asking for the fact that he’d been in gaol to come out.
HIS HONOUR: That’s what I’m saying.
[DEFENCE COUNSEL]: But on balance it probably should stay in because she is ---
HIS HONOUR: It’s going to come back in because you’ve – yes.
[DEFENCE COUNSEL]: Because she’s going to be mentioning the breach of parole, or at least I will in the questioning because she’s anonymous, so.
HIS HONOUR: Yes, so we don’t need to go – why are we going through all this for? …
At this point it is convenient to pause and note the manner in which WLK was cross-examined before the jury. As is clear from the passages set out above, counsel had asserted that the defence case was going to be that both WLK and her mother wanted the applicant ‘gone’, and that BNK had, in effect, colluded in false allegations so that the applicant’s parole would be breached. It is important to note, however, that beyond instructions that BNK wanted the applicant’s parole revoked, he had no evidence, or instructions, that the complainant and her mother had colluded. We shall return to the consequence of this fact when dealing with counsel’s cross-examination of the mother.
Part way through her cross-examination, the trial judge raised with counsel that collusion with her mother had not been put to WLK, and raised the spectre that counsel had not complied with the rule in Browne v Dunn.[10] The judge said counsel was ‘not to go to the jury with an argument maligning [WLK]’ unless she had been given an opportunity of answering: ‘You are going to have to put to her that she in collusion with her mother has made all this up just to get him out of the house’. After the judge had confronted counsel with those matters, counsel concluded his cross-examination of WLK. He ended as follows:[11]
[10]Browne v Dunn (1893) 6 R (HL) 67.
[11]Emphasis added.
Is it clear — I’m putting to you that you wanted to get rid of your father, your dad?---No, I didn’t.
You knew your mum did?---She was always like kidding and stuff but she didn’t want to get — she said to me that she still had feelings for him as well.
You were happy about the fact that you were moving out?---I was happy only because of that stuff that was happening at that time, like the incidents.
What I’m putting to you, as you know, is that you’ve made this all up?---I didn’t make it up.
And you wrote the journal to support what you’ve said?---I didn’t make it up though. Like I didn’t write this journal to make anything up. I ended up like — I’m telling the truth.
Did you talk to your mum about what was in the journal?
[PROSECUTOR]: When, Your Honour?
[DEFENCE COUNSEL]: At any stage?---No, because I don’t want to talk to her about it because I’m too — I just want to talk to her about it.
Did you talk to your grandma about what’s in the journal?---No, because I didn’t really want to talk to anyone about it unless it was like a police or anything.
I put to you that you were encouraged by your mother to make a complaint?---I wasn’t. She - - -
HIS HONOUR: What’s that supposed to mean?
[DEFENCE COUNSEL]: I was going to ask it to be clarified and put exactly what’s being put.
HIS HONOUR: My understanding is that she was taken to the police station not even knowing she was being taken there.
[DEFENCE COUNSEL]: Is that what you — did you discuss it with your mother before going to the police station?---No. I just got brought to the police station without even knowing. I didn’t even know that she knew.
I’m putting to you that you had discussions with your mother about making allegations?---I never had a discussion with her.
I’ve no further matters.
This concluding passage from WLK’s cross-examination demonstrates that, although it was hinted at and skirted around, at no stage was improper collusion distinctly put to WLK. The failure to do so seems to have been the impetus for the judge to again initiate an examination of how the defence case was being put, and the possible ramifications of the case being put in a particular way. Hence, immediately prior to BNK being called to give evidence, there was a further lengthy discussion between the trial judge and counsel. During this discussion, the judge made clear that if collusion were to be relied upon by the defence, it needed to be put to BNK. The judge also warned counsel of what he perceived to be the dangers of pursuing such a course. Among other things, the judge told counsel:[12]
… All right, [BNK] describes a chain of events in that statement which is very similar to what is described by the complainant. If it’s then going to go into a character assassination of the mother, you’re taking your life in your own hands, and I’ll make it very clear that I would anticipate in this sort of scenario that you will cop a mouthful, in the old vernacular. I’m just telling you that if you evoke material that would otherwise not have been admissible by the way in which she is being cross-examined, bearing in mind the state of the evidence, then you are probably going to be on your own with it.
…
No but what I’m saying to you is that it’s a very, very dangerous place to be going that the mother has put the child up to this where the child is denying it and in the statement the mother denies any opportunity for her at all, that there is no discussion. And it is a forensic tactic which could end in you, as they say in the vernacular, copping a mouthful. Just so long as we clearly understand each other on that …
…
… It’s a robust jurisdiction, but I just want to make it really clear that all this material about the nature of the relationship between he (sic.) and the mother and everything else, once you open it up, it’s on and that’s being done — and I’m making this clear for the transcript — that’s being done in the face of the child and I anticipate, having read the statement, the mother, saying that the mother had no idea until she got the journal and the first time that there was any sort of discussion of it was at the police station. Just so that’s clear …
…
… You can do what you like but all I’m simply saying to you is if you put it to her that she had motive to hate him and she decides to tell you why, that’s your problem …
…
[12]Emphasis added.
The trial judge then explained to counsel that he had not put to the complainant that she was aware that her mother wanted the applicant in gaol. He told counsel that there was no evidence to that effect, and further explained to counsel that he could not ‘transport’ to the child any motivation that the mother may have had. His Honour then said:
HIS HONOUR: You can do what you like but all I’m simply saying to you is if you put it to her that she had motive to hate him and she decides to tell you why, that’s your problem …
[DEFENCE COUNSEL]: What I’m putting to her is that she’s made anonymous approaches to the Parole board. That doesn’t’ open everything.
HIS HONOUR: I’m simply saying it will — no I’m not saying it does … but you are going to have to put it to her, aren’t you? Or ask her have you put the child up to it? You have to, and what I’m saying to you is that I — it’s a robust jurisdiction and you can do what you like but it’s going to take something pretty dramatic in this scenario for me to discharge a jury and I’m simply saying that once this process starts you can ask what you like but it is obvious that a person in her circumstances is going to retaliate …
Although the language may not have been conventionally judicial,[13] the effect of what the judge said seems plain enough. If counsel mounted a ‘character assassination’ on BNK, or asserted that ‘she had a motive to hate’ the applicant, then he would ‘cop a mouthful’ — in other words, a great deal of otherwise irrelevant and prejudicial material would be introduced.
[13]Cf DPP v Suckling & Brougham [1999] VSCA 190, [7] (Tadgell JA).
Furthermore, his Honour seems to have regarded cross-examination to the effect that ‘the mother has put the child up to this’ as being on all fours with a ‘character assassination’. We repeat that we do not understand why the judge thought — as the passages above insinuate — that a suggestion of collusion put to BNK might open the floodgates, permitting the defence to be inundated by a torrent of highly prejudicial and otherwise irrelevant material.
Following the discussion last referred to — in which, so it seems to us, the trial judge repeatedly warned counsel about what he saw to be the dangers of pursuing an allegation of collusion — BNK gave evidence-in-chief. That evidence occupied the balance of that sitting day. The next morning, before counsel for the applicant commenced to cross-examine BNK, the course to be pursued by counsel was once more raised by the trial judge; and once more the judge warned counsel that to pursue the course proposed would likely redound to the detriment of his client. Thus, in the course of a further lengthy discussion, there was the following exchange:[14]
[14]Emphasis added.
HIS HONOUR: You are going to put to her, as I understand it, that she has conspired –or you’re going to ask her whether she has conspired with her 13 year old daughter to have this man charged with false offences so that he can be gaoled. Why shouldn’t she be given the opportunity of saying what she thinks about all that?
[DEFENCE COUNSEL]: I’m asking her questions about her previous activities in relation to the breach of parole.
HIS HONOUR: That’s right. And the offending was against her so all that’s got to be relevant.
[DEFENCE COUNSEL]: And that can come from the informant.
HIS HONOUR: What? Why shouldn’t [the prosecutor] be able to ask her?
[DEFENCE COUNSEL] Because she is likely to say things that are extremely damaging to the accused ---
HIS HONOUR: Precisely. And why shouldn’t she?
[DEFENCE COUNSEL]: It’s a [sic] relevant matter—
HIS HONOUR: No its not. You’re putting to her that she’s conspiring to commit perjury for a particular reason. And you’re not going to sanitize it.
[DEFENCE COUNSEL]: I’m putting to her that she has attempted to have him locked up in relation to his parole. And that’s as far as it goes.
HIS HONOUR: No it’s not. Aren’t you putting t her that she’s conspired with her daughter to commit perjury?
[DEFENCE COUNSEL]: Well we don’t know whether she’s done that or not.
HIS HONOUR: What’s the breach of parole got to do with it?
[DEFENCE COUNSEL]: The daughter and mother are not living in a vacuum. The daughter’s aware of what’s going on in — she’s talked about arguments between the two. She knows — I don’t know if the daughter’s aware of whether her mum’s been trying to get him breached on parole or not.
HIS HONOUR: Why didn’t you ask her?
[DEFENCE COUNSEL] It’s enough that the daughter indicated that—
HIS HONOUR: No it’s not. Not when you’re making allegations like this it’s not. If you’re going to go to a jury and say that, and you can’t get around this, right? If you’re going to as her has she conspired with her daughter to commit perjury to get him gaoled, then you to put it to her. And these – ‘you’ve tried to get his parole breached’, there’s all sorts of activity….
…
You can do what you like but I’m warning — I’m telling you — I explained to you yesterday that someone in her position, I am not going to interfere, and you know what the risk is with her and if you’re going to persist with this … I’m not going to protect you from the response that you will get. Simple as that. So you stand warned.
If it had not already been made clear before, counsel here made it clear that he had no instructions, or evidence, that entitled him to put as a positive assertion that mother and daughter had colluded to have the daughter make false allegations.
Duty of counsel not to allege serious criminal conduct in the absence of material providing reasonable grounds to do so
An allegation by counsel of collusion by persons to make false allegations on oath amounts to an allegation of a conspiracy to pervert the course of justice and conspiracy to commit perjury. When there is no factual basis for such allegations, it constitutes a serious dereliction of duty and misconduct by counsel. In Rees,[15] this Court (Ashley, Redlich JJA and Coghlan AJA) said:[16]
… While counsel has a duty to his client and to his opponent, his paramount duty is to the court and to truth and justice. The obligation not to mislead the court or cast unjustifiable aspersions on any party or witness arises as part of this duty. In the discharge of that duty, counsel must exercise an independent discretion or judgment to ensure that the conduct of their client’s case is in accordance with the dictates of the administration of justice. Where counsel alleges criminal conduct or some lesser but serious discreditable misconduct against a witness or party without a proper foundation to do so, counsel is in breach of that paramount duty, such conduct being viewed as an abuse of process for which counsel can be sanctioned. …
[15]Rees v Bailey Aluminum Products Pty Ltd (2009) 21 VR 478 (‘Rees’).
[16]Ibid 490 [34] (footnotes omitted).
At the time that the trial was conducted, rule 38(a) of the Victorian Bar Practice Rules provided:[17]
38. A barrister must not cross-examine so as to suggest criminality, fraud or other serious misconduct on the part of any person unless:
(a) the barrister believes on reasonable grounds that the material already available to the barrister provides a proper basis for the suggestion; …
[17]See now rule 65(a) of the Legal Profession Uniform Conduct (Barristers) Rules 2015, which provides:
65. A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:
(a) available material by which the allegation could be supported provides a proper basis for it; …
There is a critical distinction between asking questions directed to ascertaining whether serious misconduct may have occurred and positive assertions that it had. The following further passage from Rees is apposite:[18]
Cross-examination as to the content of a conversation or some other event which occurred in the course of the trial may result in evidence which provides a basis for an allegation that there has been a joint concoction of a fraudulent account. But there is a plain distinction between asking questions for the purpose of exploring the content of a conversation and the making of a positive suggestion of a jointly concocted fraud. There must either be an established evidentiary foundation, anticipated evidence or soundly based instructions which are sufficient to justify an allegation of fraud or joint impropriety.
For these reasons, the allegation of collusion should never have been positively asserted as it later was in cross-examination of the mother.
[18]Rees, 492 [36] (footnotes omitted).
Counsel did submit that all he needed to do was establish that the mother wanted the applicant’s parole revoked. He suggested that it was unnecessary to introduce damaging evidence of the applicant’s conduct towards her. The trial judge remained of the view that the mother would be entitled to adduce such damaging evidence. When the trial judge informed counsel that he would not allow the allegation to be ‘sanitised’, and that evidence of the applicant’s prior offending could be adduced — even by the prosecutor — counsel advanced no further argument in resistance to that course.
Undeterred by the judge’s exhortations, however, counsel pursued the strategy that had been anticipated. Thus, counsel chose to conclude his cross-examination of BNK in the following manner:[19]
[19]Emphasis added.
[WLK] says something in the journal about that you’d be out of the house by the end of the year, something along those lines?---Yes.
Do you remember that?---Yep, yep.
Do you know why she wrote that?---Because when he was on parole things started getting real bad again and I briefly talked with them that I was planning on leaving at the end of the year when [another child, ‘A’] graduated. But a lot on and off, through the relationship, I planned on leaving and then I’d go and come back and it was all over the place.
So you’d told her that you were leaving?---Yeah, at the end of the year. Because [the child A] was in Grade 6, I wasn’t going to pull her out of school.
You mentioned something about him being on parole?---Yep.
You said it was a turbulent relationship?---Yep.
And is it a situation that he’d gone to gaol for six months in relation to---?---Yep, for breaking my ribs.
For an assault?---Yep, my broken ribs.
And charges against you?---Yep.
And that he was on parole for that?---Yep. And kidnapping.
…
Yes. When he came out of gaol you lived together again?---Yes. There was meant to be a thing — a thing in place for me to feel safe though.
And he was on parole?---Yep.
And he went back to work?---Yep.
He was supporting you for a period of time?---He never supported me.
All right. And did you have any connection with the Parole Board? He was on parole for a long period?---Yep.
Did you have any connection with the ---?----Yes I did.
What did you do?---I wrote a letter hoping he’d get [urine] tested because I didn’t want him drinking.
Did you want him to be locked up at that stage?---No, no, I just wanted him to change because when he drinks he — he’s abusive.
So you had contact with the Parole Board?---Yes because he was getting told when he was going to get [urine] tested.
He was in fact---?---And he never had a chance to change.
It was anonymous contact with the---?---Yep, yep. I was just hoping they’d [urine] test him more and give him a warning so he’d stop drinking.
And they in fact gave him a warning, is that right?---Um.
Or you don’t know?---Not because of me. No, no, I think um, I think he had a warning — oh he got — he got um busted down at the pub or something by an off-duty police but who was doing his parole was still telling him every time ‘You’re going to get piss tested. Make sure your urine is clean’. She knew he was drinking.
All right?---And he was not meant to be drinking because he abuses me when he’s drinking, and the kids.
That was all prior to this?---Yep.
…
What I need to put to you is that you in fact, at the time that [WLK] made this complaint, you wanted to get rid of [the applicant]?---I didn’t want to get rid of him.
Sorry?---I didn’t want to get rid of him. I was planning on leaving at the end of the year and going up to my dad’s because he was still abusing me. But it wasn’t a thing that was going to happen straight away. It was just talked about and thought about but there was many times over the years that I did think about leaving and I’m thinking, you know, I’m getting hurt that often and treated like crap that it was really hard to be around him.
He’d finished parole though?---Um, I’m not actually sure sorry. I can’t remember when he finished.
You’d told the children you were going to be living apart by the end of the year?---Yeah, I’d planned
Or you’d told [WLK] at least?---I’d planned — I was like starting to think about that, you know, we’d be better off at the end of the year when [the child A] graduated to, yeah, move away.
And I’m putting to you you’d unsuccessfully tried to get him locked up on the parole?---I didn’t try and get him locked up. I could have got him locked up for assault when he was on parole but I didn’t because — I didn’t try to get him locked up. He was beating me all the time.
And that either [WLK] was aware of the problems between you and him?---Yeah, all the kids knew. They seen (sic.) them all.
The arguments were obvious?---Yeah. They seen (sic.) a lot of assaults. Like, a lot of what went on. They actually got assaulted themselves.
We pause to make two further observations. First, to this point defence counsel had achieved all that he could have hoped for. That is, he had established that the mother wished to have the applicant removed from the home or his parole revoked, and that the complainant was aware of the difficulties her mother was experiencing with the applicant and was planning to move away. Secondly, counsel asked questions which invited BNK to detail some of the applicant’s offending against her.
Counsel still, however, thought it appropriate and necessary to put the allegation of collusion. The cross-examination continued:
Either you or [WLK], or both of you, decided to make these allegations basically to get rid of him?---No.
The allegations are false?---Yes, they’re false.
The allegations?---The allegations are false.
HIS HONOUR: How can she answer that?---Sorry, that doesn’t even make sense to me.
[COUNSEL]: Sorry?---That doesn’t make sense to me.
What I’m putting to you, that you’ve assisted [WLK] in writing a journal and making these allegations?---No. I’ve had nothing to do with it. I don’t even to this day know exactly what’s happened to her. She won’t open up to me. She won’t tell me.
Did you discuss what was in the — no I won’t. I have no further questions, Your Honour.
BNK was then re-examined by the prosecutor. Her evidence — during which the prosecutor seems to have assumed carte blanche (with the judge’s imprimatur) to introduce highly emotive and prejudicial material — included the following:
You were telling us about the matters for which [the applicant] was on parole?---Yes.
What had happened?---Um, he - he was charged from, um, breaking my ribs but it was because he kidnapped me at — he had my son — our son and wouldn’t give him back. He actually threatened him with knifepoint (sic.), everything, over the phone, sending me all these messages ‘You’re not seeing him’. Like, the police have got all that on record and everything, just threatening me because he wanted to be with me, I didn’t want to be with him. And wouldn’t give [the son] back to me, let me see him. He was — kept going over to my sister’s house, everything, trying to find me. …
…
Right, okay?---And um — yeah, that’s another charge, and then he got charged for breaking in (indistinct) puncturing a lung, there was a few charges.
Why did you — when he got out of gaol and was on — started to be on parole, why did you take him back?---Scared.
Mm?---Scared. He had control over me.
And---?---And I thought maybe that, you know, he might in gaol, change a little bit but — yeah, stupid.
…
But you took him back each time?---Yeah.
How did he get on with the girls?---Um yeah, good, but I don’t know, he always treated all the kids not great, and in the end he sort of — he wasn’t abusing them — oh, sorry, he actually did abuse [WLK] physically not that long before I left.
Right, okay?---Ah by slamming her into a door.
…
From these passages it is readily apparent that, under cross-examination, BNK revealed that:
·the applicant had been gaoled for breaking BNK’s ribs and for kidnapping;
·the applicant was on parole for a ‘long period’;
·things ‘started getting real bad again’ whilst he was on parole;
·the applicant breached his parole by drinking;
·when the applicant drinks he is abusive, and he abuses BNK and the children;
·the applicant assaulted BNK whilst on parole, and beat her ‘all the time’; and
·the children had seen ‘a lot of assaults’ and had been assaulted themselves.
When re-examined, BNK added that:
·the applicant threatened their son ‘with knifepoint’;
·the applicant was charged after ‘breaking in’ and ‘puncturing a lung’; and
·the applicant had slammed WLK into a door.
In the written case filed in support of the present application, counsel for the applicant[20] submitted that it can now be seen that the consequences of the applicant’s trial counsel pursuing the ’breach of parole’ theory in cross-examination of BNK ‘were most unfortunate’. So much cannot be gainsaid. That misfortune resulted from the combination of counsel’s improper and forensically unwise pursuit of the collusion allegation and the approach taken by the trial judge to the introduction of the irrelevant and highly prejudicial evidence.
[20]Counsel in this Court was not counsel at trial.
The trial judge’s view that prejudicial evidence of bad character could be admitted
At the risk of repetition, the defence case was that WLK and her mother had colluded to make false allegations against the applicant, so that his parole would be breached and he would be imprisoned. Self-evidently, the advancement of that defence involved revealing that the applicant had previously been imprisoned, and it involved an attack on the credit of both WLK and BNK. Despite the apparently strongly-held (and strongly-expressed) views of the trial judge, however, neither of those aspects justified a ventilation of the reasons for the applicant’s imprisonment, or the introduction of grossly prejudicial material suggesting the applicant’s bad character (including a propensity for violence).
Subsections 110(2) and (3) of the Evidence Act 2008 make plain that evidence that an accused person is not of good character, either generally or in a particular respect, is not admissible unless the accused has adduced evidence to prove (directly or by implication) that the accused is, either generally or in a particular respect, a person of good character. Quite obviously, that part of the ‘defence’ that revealed that the applicant was on parole was not evidence of his good character. Nor did the suggestion of collusion raise his good character. Although expressed in relation to a different statutory regime, the various principles distilled in Thomas,[21] bearing on the introduction of evidence of bad character, remain apposite:[22]
(a)The test for determining whether the good character of the accused has been put in issue, is not whether a reasonable jury would think that this is the case, but whether the judge is of the opinion that it does so;
(b)counsel’s purpose in leading the evidence is relevant, but is not determinative;
(c) the policy basis for allowing admission of evidence of bad character, where the accused has put his or her character in issue, is to ensure fairness to the prosecution by permitting that evidence to be rebutted;
(d) at common law the fact that the accused has attacked the character of a prosecution witness does not, without more, expose him or her to admission of evidence of bad character; and
(e) where the threshold requirement for the admission of evidence of bad character is satisfied, the court has a discretion to exclude it …
[21]R v Thomas [2006] VSCA 167 (Maxwell P, Neave JA and Mandie AJA) (‘Thomas’).
[22]Ibid [30] (Neave JA) (footnotes omitted). See also Huges (a Pseudonym) v The Queen (2013) 238 A Crim R 345, 353 [25] (Priest JA).
The principles conveniently summarised in Thomas raise no new or novel propositions of law. It might reasonably have been expected that counsel and judge should have been acquainted with them. For that reason, it is difficult to understand how it could have been thought that any defence suggestion of collusion could have opened the defence up to — as the judge colourfully put it — a ‘mouthful’.
There are some parallels between this case and Steve,[23] a decision of the New South Wales Court of Criminal Appeal. In that case, the appellant was convicted of sexual intercourse without consent. He had been represented at trial by a ‘country solicitor’, who had failed to object to irrelevant and highly prejudicial evidence elicited from prosecution witnesses both by the prosecutor in evidence in chief, and by the solicitor in the course of his cross-examination. The consequence of the admission of some of that evidence was that the jury was left with evidence that the appellant was a person of a violent disposition towards women, with a history (albeit non-specific) of ‘putting the hard word on’ women, and who was a ‘paedophile’.[24]
[23]Steve v The Queen (2008) 189 A Crim R 68 (‘Steve’).
[24]Ibid 83 [81].
These aspects of the evidence, the Court of Criminal Appeal held, should have been objected to by the appellant’s solicitor.[25] Further, it was held, the trial judge had an obligation not to admit the evidence in respect of which there was a danger of unfair prejudice to the appellant, which outweighed its probative value. The trial judge had failed to undertake the mandatory task required by s 137 of the Evidence Act 1995 (NSW) not to admit such evidence. As a result of that failure, prejudicial evidence was before the jury which likely was used in determining the guilt of the appellant.[26]
[25]Ibid.
[26]Ibid 83 [82].
In the leading judgment in Steve, Beazley JA[27] observed:[28]
The precepts that only relevant evidence is admissible; that tendency evidence is inadmissible unless notice is given; that evidence of bad character is only admissible in well recognised circumstances; and that the court must refuse to admit evidence where the danger of unfair prejudice outweighs its probative value, are fundamental to a fair trial. The appellant’s overall contention on the appeal is that he was deprived of that fundamental right.
[27]With whom Hislop and Price JJ agreed.
[28]Steve, 75 [38].
Her Honour acknowledged that a cardinal principle of the adversarial system under which criminal trials are conducted was that, as a general rule, parties were bound by the manner in which they conduct those proceedings, including the manner in which the proceedings were conducted by a party’s legal representative.[29] Beazley JA then conducted a thorough review of authority,[30] and observed that there could be no miscarriage of justice if the impugned evidence were properly admitted. It was conceded in that case that the impugned evidence was not relevant, and thus was not admissible. That was not determinative, however, of whether there had been a miscarriage of justice. Rather, it was necessary to consider what effect the wrongly-admitted evidence had on the outcome of the trial.[31]
[29]Ibid 75 [39].
[30]Including R v Birks (1990) 19 NSWLR 677, 683, 684, 685 (Gleeson CJ); TKWJv The Queen (2002) 212 CLR 124, 134 [31] (Gaudron J), 147–8 [74], 148 [76]–[77], 149–50 [79]–[81] (McHugh J); Ali v The Queen (2005) 79 ALJR 662, 677 [99]–[100] (Callinan and Heydon JJ), 666 [23], 666–7 [25]–[26] (Hayne J); Nudd v The Queen (2006) 80 ALJR 614, 618–9 [7]–[9], 622 [20] (Gleeson CJ), 622 [24] (Gummow and Hayne JJ), 635 [100] (Kirby J), 645 [162] (Callinan and Heydon JJ); Seymour v The Queen (2006) 162 A Crim R 576, 581–2 [20]–[21] (Hunt JA).
[31]Steve, 79 [58].
Although the prosecution case in Steve involved an allegation of a sexual offence against an adult female, some of the impugned evidence included that the appellant was a ‘child molester’. In a passage which is particularly apposite in the present context, Beazley JA said:[32]
[32]Ibid 80–81 [66]–[69].
… The evidence … was highly prejudicial. It was not relevant. Even if arguably relevant, it had no or little probative value and the trial judge was required to reject it given its highly prejudicial nature: Evidence Act, s 137.
It was also evidence of extreme bad character. Stated in general terms, the evidence of the bad character of an accused person is not relevant to the guilt of the accused of the particular crime with which that person is charged. The prosecution may only raise the bad character of the accused to negate evidence that the accused person adduces of good character: Evidence Act, s 110.
In R v Stalder [1981] 2 NSWLR 9; (1981) 3 A Crim R 87, Street CJ (Begg and Yeldham JJ agreeing), considered the limitations on the admissibility of rebuttal evidence as to bad character by the Crown, in accordance with s 412 of the Crimes Act (see now s 110 of the Evidence Act). His Honour stated, at 15; 93:
These prescriptions of the effect and scope of character evidence do not override the deeply rooted common law principle precluding the Crown from calling evidence of bad character solely for the purpose of seeking to establish affirmatively as part of its case in chief that the accused is a person of bad character and hence could be regarded as more likely to have committed the crime with which he is charged.
Later, at 18; 95-96, his Honour stated:
The section has … been from the inception of its precursor in 1876 construed with due regard to the common law principle denying to the Crown freedom to call evidence of bad character to establish the likelihood of guilt … This basic principle of the common law is also to be found in the restriction placed upon the legitimate use of evidence of bad character called in rebuttal of evidence of good character … The Crown is entitled to take up this issue and to attempt to negate it by evidence of bad character. The Crown is not, however, entitled to assert a counter proposition of likelihood of guilt. These considerations underlie significantly both the desirability of juries being carefully instructed upon the legitimate use which can be made of the rebutting evidence of bad character and the approach to be taken by a trial judge in ruling upon the discretionary objection based upon unduly prejudicial significance of evidence of bad character.
As I have said, this was evidence of extreme bad character, the prejudicial value of which was immense. It had had no probative value. The trial judge was obliged to reject the evidence, regardless of the failure of the appellant’s solicitor to object to it.
In the present case, the judge had, in effect, alerted counsel to the prospect that damaging evidence would be admitted if he pursued the ‘defence’ that he had signalled. Of course, it is desirable for a trial judge to caution counsel when there is a risk that cross-examination may lead to a witness giving prejudicial evidence, whether admissible or not, in response. It is altogether different for the trial judge to inform counsel that the trial judge will do nothing to stop evidence which is irrelevant emerging.
With great respect, we are unable to see any justification for the judge here holding the view that evidence as to the applicant’s bad character could be relevant to any issue (and hence admissible). None was suggested during the appeal. In our view, his Honour should not have permitted the introduction of that evidence. As emerged during oral argument on appeal, the failure of the judge to intervene to prevent the admission of this evidence contributed significantly to the substantial miscarriage of justice which resulted. The sole ground of appeal raises no complaint, however, about the role played by the trial judge.
Whether the applicant should be bound by the conduct of his counsel
The live question raised by the ground of appeal is whether the applicant should be bound by the conduct of trial counsel. Counsel for the applicant in this Court maintained that a substantial miscarriage of justice had been occasioned as a result of trial counsel’s conduct. As we have said, trial counsel had originally sought exclusion of any references to the applicant having served a prison term, but later decided to raise an alleged attempt by the complainant’s mother to have that parole breached. The evident purpose was to link BNK’s attempt to breach the applicant’s parole with the making of false allegations by WLK.
In this Court it was acknowledged that the trial judge had ‘warned the applicant’s counsel in strong terms about pursuing this course’. And it was accepted, first, that there was no evidentiary foundation for the theory that BNK had conspired with her daughter to make false allegations; secondly, that there had been scant ‘puttage’ to WLK; and, thirdly, that the trial judge had warned trial counsel of the kind of prejudicial and otherwise inadmissible evidence that might be introduced if counsel pursued such a course. Further, in this Court it was acknowledged that trial counsel had recognised that ‘extremely damaging’ evidence could be introduced if the course anticipated was pursued. Notwithstanding these matters, however, trial counsel explored the issue of parole in his cross-examination of BNK, thereby exposing the applicant’s prior misconduct ‘in the type of detail of which the [judge] had warned’.
Counsel further submitted that, given the state of the evidence up to the point where BNK was called, it ‘was obvious that there could be no forensic advantage associated with such cross-examination’.[33] That argument must be sustained.
[33]Counsel cited TKWJ v The Queen (2002) 212 CLR 124, 133 [26], 133 [28], 135 [33] and 148 [76]–[77]; Bass (a Pseudonym) v The Queen [2014] VSCA 350, [89], [115] and [125]; and Clay (a Pseudonym) v The Queen (2014) 43 VR 405, 409–12 [19]–[33].
First, as we have said, there was no legitimate basis for advancing the suggestion that BNK had conspired with her daughter to have her give perjured evidence.
Secondly, there remained no forensic advantage in pursuing the issue of the mother’s wishes as to the applicant’s parole. There was no evidence to support the hypothesis that the complainant was aware of her mother’s desire to have the applicant removed from the house by having his parole revoked. Thus, to explore BNK’s desire to have the applicant’s parole revoked served no forensic purpose. Counsel well understood the damaging consequences that would follow from pursuing the issue of the mother’s wishes. The judge had made clear that, if counsel continued to pursue that explanation, he would not stand in the way of BNK giving highly prejudicial evidence.
Counsel conducting a trial will sometimes have to deal in running with a ruling of the trial judge which they believe to be erroneous but which affects the forensic benefit of the course which counsel had previously contemplated following. Upon re-evaluation of the position, counsel may have to abandon the course first contemplated. In the event that the outcome of the proceeding is adverse to counsel’s client, the impugned ruling may be the subject of appeal. But Counsel here should have re-evaluated the benefit of pursuing the issue of the mother’s desire to have the applicant’s parole revoked, and the explanation of collusion, in light of the judge’s forcefully-expressed views.
Whilst it was recognised that in his charge the judge gave the jury a propensity warning with respect to the evidence raising bad character, the judge also directed that the evidence showing bad character was relevant to relationship. Notwithstanding the propensity warning, and notwithstanding that the evidence concerned was introduced ‘as a result of the forensic choice’ by the applicant’s trial counsel, it was argued that ‘the evidence was so prejudicial and so damaging that a substantial miscarriage of justice has occurred’.[34] Although the reference to the applicant’s prior offending was to it being ‘non-sexual’, the relevant evidence ‘involved violence and threats of violence towards an adult and a number of children’ including WLK, in circumstances where WLK had alleged that the applicant’s sexual offending against her was ‘marked by threats of violence’.[35]
[34]Citing R v Halliday (2009) 23 VR 419, [78]–[81].
[35]Counsel sought to compare ‘the less significant type of prior conviction’ involved in R v Velasquez [2004] VSCA 106, [12]–[14] (Buchanan JA).
The respondent’s counsel submitted that other defence counsel might have tested the suggested motive at committal or on a voir dire. And although it was acknowledged that the applicant’s counsel at trial had clearly wanted to limit the damage that might accrue from pursuing the asserted motive, the respondent’s counsel submitted that nonetheless the prejudicial material that emerged in pursuance of that motive was probative of it.
Had there been a dispute as to whether the mother had tried to have the applicant’s parole revoked, evidence as to the nature of his offending conduct might have been relevant to demonstrate why the mother wanted to have his parole revoked. That fact not being in issue, the evidence of other serious criminal acts had no relevance. And this impugned evidence was not probative of the suggestion of collusion.
To complete the picture, it is convenient at this point to turn to the applicant’s affidavit sworn 25 February 2016. Counsel for the respondent neither objected to its reception, nor sought to cross-examine the applicant on its contents. In his affidavit, the applicant swore that he conferred with his then solicitor ‘a few months’ before trial and ‘raised the issue of whether [his] prior criminal history and parole status could be raised up (sic.) during the course of trial’. He was advised that unless the defence raised it, the prosecution could not. The applicant deposed that he first met his counsel the weekend before the trial. He and counsel went through some notes that the applicant had prepared. Although the applicant could not remember whether his prior criminal history was brought up during this conference, he was ‘relatively confident that it would have been because it was a matter that had been concerning [him]’. The applicant swore that he remembered the issue of his criminal history being raised in pre-trial discussion before the jury was empanelled, and that the judge warned counsel about introducing matters relating to his criminal history and parole status.
The applicant further deposed that he recalled further discussion about his prior criminal history, on ‘or about’ the first day of the trial, ‘in-between [WLK] being cross-examined’. He swore that counsel came up to him in the dock ‘and said words to the effect that he was undecided about what to do about raising the issue of my prior criminal history and parole status’. The applicant said that he recalled raising his concerns about his prior criminal history and parole status being raised, but counsel said to him ‘in words to the effect that it was a decision that he [counsel] had to think about overnight and that he would have to decide what to do’. In his affidavit, the applicant deposed that the next day counsel came up to him ‘and said to [him] in words to the effect that he was still undecided as to what he was going to do in relation to [his] prior criminal history and parole status and that he was going to play it by ear’.
During the course of the trial and WLK’s cross-examination, so the applicant deposed, he recalled that counsel ‘put matters relating to [his] parole status and prior criminal history to [WLK]’. The applicant deposed that he ‘did not have any warning as to the course that [counsel] had decided to take so therefore [he] did not have a further opportunity to provide [his] instructions or otherwise as to the introduction of [his] prior criminal history or parole status’. (It should be noted, however, that these aspects of the applicant’s affidavit are to some extent contradicted by the objective record. As we earlier observed, the applicant’s criminal history and parole status were introduced during cross-examination of BNK, not WLK. The applicant appears to be wrong in so far as he suggests the contrary.)
The applicant further deposed that, after sentence was passed, he discussed with counsel the possibility of appealing. He deposed that he sent a letter to his current solicitor in which he complained about his prior criminal history and parole status being raised during his trial.
As the authorities recognise, generally speaking the parties to criminal litigation are bound by the conduct of their counsel. Trial counsel exercise a wide discretion in deciding what issues to contest, and the manner in which they are to be contested. Counsel in this case chose to attack the prosecution case by alleging collusion, having been warned that such a strategy involved risks. He ‘rolled the dice’, and the consequences for the applicant’s case were ‘most unfortunate’. Can the applicant now be heard to complain that he did not like the way that the dice fell?
Nudd[36] involved a complaint that the incompetence of trial counsel had led to a miscarriage of justice. Having discussed the distinction recognised in this area of discourse between ‘outcome’ and ‘process’;[37] and having observed that where the conduct of counsel is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred;[38] Gleeson CJ said:[39]
Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. 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. … 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.
[36]Nudd v The Queen (2006) 80 ALJR 614 (‘Nudd’).
[37]Ibid 617–618 [3]–[7].
[38]Ibid 618 [8].
[39]Ibid 618–9 [9] (citations omitted; emphasis added).
Previously, in TKWJ,[40] Gaudron J had observed:
[40]TKWJ v The Queen (2002) 212 CLR 124, 135 [33] (‘TKWJ’).
Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. …
Earlier in her reasons, Gaudron J said:[41]
One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.
As already indicated, if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel’s conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.
[41]Ibid 133 [27]–[28] (emphasis added; footnotes omitted).
An applicant will find it difficult to establish a miscarriage of justice when the alleged errors of counsel concerned forensic choices upon which competent counsel could have differing views as to their suitability.[42] There is a distinction to be drawn, however, in the present case between the forensic decision to pursue a particular ‘defence’, and the manner in which it was sought to bring that forensic strategy to fruition.
[42]Ibid 151 [81] (McHugh J).
As the record of the trial reveals, counsel was casting about for a vehicle with which to discredit an otherwise plausible prosecution case. On an examination of what occurred at trial, it is obvious that counsel saw an opportunity to impugn the credibility of the prosecution case by alleging collusion. Because of the credible evidence showing that BNK had written anonymously to the Parole Board to have the applicant’s parole revoked, counsel alighted on the hypothesis that the falsity of WLK’s evidence might be explained by collusion with her mother.
Counsel did not have instructions that there had been collusion, but he had instructions that the allegations were untrue. That entitled him to ask exploratory questions of the complainant without making any positive allegation. But that cross-examination proved unfruitful. As we have said, without evidence from the complainant to support such a hypothesis, counsel had no right to assert a positive allegation when questioning the complainant’s mother. There was no reasonable foundation for the hypothesis that the mother had colluded in her daughter making false allegations. Moreover, counsel was aware of what the mother would say as to the circumstances in which she came to learn of the daughter’s allegations — an account which he would be unable to contradict. That made it pointless to raise the possibility of collusion with the mother.
Any vestige of conceivable benefit that it was thought might be secured from exploration of the mother’s desires disappeared once the judge made clear what would happen if that course was followed. Counsel understood that to even ask BNK to confirm that she wanted the applicant’s parole revoked would likely result in the introduction of highly inflammatory and prejudicial material. The applicant’s counsel, after the briefest of disagreement, seems to have then been content to accept that his client justifiably might ‘cop a mouthful’ if he pursued the forensic strategy anticipated.
Part of counsel’s duty in every case is to ensure, so far as he or she is able, that appealable error is not occasioned. Sometimes the proper exercise of that duty will involve counsel endeavouring to disabuse a judge of an erroneous view that the judge may hold of the law, or of the facts, no matter how forthrightly that incorrect view might be expressed. Experience shows that a courteous, but firm, request for a formal ruling on a matter of evidence will often be the impetus for circumspection, and hence the avoidance of error.
Counsel should have been much firmer in resisting the import of the judge’s fulminations. He should have sought a determination from the judge, delineating the nature and extent of any evidence which might be admitted in response to the explanation he wished to pursue with the complainant’s mother. Indeed, counsel should have asked the judge to rule formally, and should have politely, but firmly, insisted that the judge do so.[43]
[43]See in another context, R v Garth (1990) 49 A Crim R 298, 305 (McGarvie J).
Counsel nonetheless resolved to put collusion, despite the several strong warnings from the trial judge as to the possible adverse repercussions of so doing. He made a profound error in pursuing that course.
Counsel’s error was compounded by his asking questions which invited BNK to testify as to the nature of the applicant’s violence. That resulted in BNK detailing the applicant’s offending conduct. It might be said in counsel’s favour that he knew that, if he did not do so, the prosecutor would be permitted to do so. But he should never have placed himself in that position. Counsel should have done a great deal more in then seeking to limit the irrelevant and inflammatory evidence which emanated from BNK in cross examination and re-examination.
We have concluded that the applicant should not be bound by the highly unsatisfactory conduct of his counsel which, regrettably, must be characterised as incompetent. As we have said, counsel should not have made a positive assertion of collusion. Further, once he was cognisant of the judge’s views, it was inexcusable for counsel to have advanced collusion (a strategy which was without merit) in the manner in which he did — including his failure to ensure that BNK was limited in her responses to relevant matters. There was no forensic advantage, large or small, in his client being subjected to highly prejudicial evidence painting him as a violent and abusive drunk.
It was highly irregular that the evidence adverted to was permitted to be introduced. That irregularity has led to a substantial miscarriage of justice.
Conclusion
Since the proposed application for leave to appeal against conviction must succeed, the interests of justice require that the application for extension of time must be granted.
We would grant the application for extension of time within which to file an application for leave to appeal against conviction; grant leave to appeal against conviction; allow the appeal; set aside the convictions; and order a retrial.
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