Anthony Patounas v The Queen
[2015] VSCA 369
•22 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0099
| ANTHONY PATOUNAS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF ORDERS: | 31 July 2015 |
| DATE OF SUPPLEMENTARY SUBMISSIONS | 3, 30 November 2015 |
| DATE OF REASONS: | 22 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 369 |
| JUDGMENT APPEALED FROM: | R v Patounas (Unreported, County Court of Victoria, Judge Chettle, 21 November 2014) |
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CRIMINAL LAW – Appeal – Conviction – Irregularity – Defence counsel previously acted for Crown witness – Whether cross-examination prejudiced – Whether substantial miscarriage of justice – Crown concession – Appeal allowed – Retrial ordered.
CRIMINAL LAW – Appeal – Conviction – Crown concession on one ground of appeal – No concession on second ground – Appeal allowed – Conviction quashed – Retrial ordered – Whether Court obliged to consider second ground – Applicant acquiesced in making of orders – Ground abandoned – Court functus officio.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms A Ramsay (solicitor) | Doogue O'Brien George |
| For the Respondent | Mr L Fluxman (solicitor) | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
BEACH JA:
After a trial in the County Court, the appellant (‘AP’)[1] was convicted of one charge of trafficking in a drug of dependence. He was sentenced to four years’ imprisonment and a non-parole period of two years and nine months was fixed.
[1]The abbreviation is used for ease of reference only.
He subsequently filed an application for leave to appeal against conviction. The written case in support identified two grounds of appeal. The first ground was that there had been a substantial miscarriage of justice, by reason of the fact that AP’s counsel had previously acted for a person who, at AP’s trial, gave evidence against him for the prosecution. The second ground contended that the conviction was unsafe and unsatisfactory.
The Crown’s written case conceded the first ground of appeal, accepting that the irregularity in the trial had produced a substantial miscarriage of justice. The written case contained the following statement:
In the circumstances, the respondent submits that the appropriate course is for this Court to quash the conviction and order a re-trial.
That concession having been made, the Court of Appeal Registry acted with commendable speed in drawing the matter to the attention of the bench for urgent consideration. To facilitate that occurring, Maxwell P made a determination under s 11(1A) of the Supreme Court Act 1986 that the appeal be heard by two judges. On 29 July 2015, the parties advised the Registry that they were content to have the appeal determined on the papers, without the need for an appearance.
On 31 July 2015, Maxwell P announced the decision of the Court in these terms:
Beach JA and I have considered the respective written cases. His Honour is unable to be present but, given the urgency of the disposal of the matter, has authorised me to announce our decision and publish short reasons, with which his Honour concurs.
In our view, the Crown's concession is well founded and should be accepted. The result, accordingly, is that the appeal should succeed, the conviction be quashed and a re-trial ordered.
It was foreshadowed that, if the Court came to that view, an application for bail pending re-trial would be made. I understand that that application is not opposed by the Crown. The draft bail order is based on matters identified in the affidavit filed on behalf of AP cant, together with what I am informed are appropriate additional conditions. I make a bail order in the terms set out in the draft circulated.
The orders of the Court are as follows:
1. The application for leave to appeal against conviction is granted.
2.The appeal is treated as instituted and heard immediately and is allowed.
3.The conviction sustained by the appellant on the count of trafficking is quashed and the sentence imposed is set aside.
4. We direct that there be a new trial.
5.The appellant is directed to appear in the County Court of Melbourne for mention on 17 August 2015 at 9:00am.
We will grant an Appeal Costs Act 1998 certificate as to costs. We will publish further reasons in due course, given that this matter seems to raise quite an important point of principle about the position in which defence counsel allowed himself to be placed, or placed himself, and the consequences for the trial of this appellant.
As the concluding remarks made clear, reasons were to be given subsequently for the decision to accept the Crown’s concession with respect to ground 1. Those reasons are set out below.
First, however, it is necessary to deal with a supplementary submission filed on behalf of AP more than three months after those orders were made, which contends that the remaining ground of appeal must now be addressed.
The remaining ground of appeal
The supplementary submission for AP points out — quite correctly — that the Court did not deal with the second ground of appeal. It is contended, however, that as a result the Court ‘failed to exercise fully its jurisdiction [such that] the appeal remains partially undetermined’.[2] AP now argues that he should have the opportunity to advance argument as to why the conviction was unsafe and unsatisfactory since, if that ground succeeded, it would be open to him to argue that there should be no order for re-trial.
[2]Jones v The Queen (1989) 166 CLR 409, 411.
Enough has already been said about the events leading up to the making of orders on 31 July to demonstrate that this submission is untenable. Those representing AP agreed that the Court should deal with the application for leave urgently, on the basis of the Crown’s concession as to ground 1, and should do so without an oral hearing. Plainly enough, that course could not — and would not — have been followed had AP’s representatives asked the Court to consider the second ground, which was contested and would have required full investigation at a hearing.
Unsurprisingly, AP’s solicitors were anxious to act without delay on the Crown’s concession. And, as we have pointed out, the concession was couched in terms which made quite clear that the quashing of the conviction should be accompanied by an order for re-trial. AP’s solicitors were present when the orders were made (including the order granting bail) and their silence confirmed their client’s concurrence.
In our view, by the conduct of his solicitors up to and including the making of the orders, AP abandoned ground 2. As has been demonstrated, his solicitors on his behalf agreed that the appeal should succeed, and orders be made, on the basis of ground 1 alone. Their conduct was unequivocal. They concurred in the approach adopted — and in the making of orders in the terms proposed by the Crown — in full knowledge that there would be no consideration of ground 2.
Even if ground 2 had not been thus abandoned, there would be no scope now for the Court to consider it. Put simply, the Court is functus officio. The orders made on 31 July have been authenticated The judgment has been ‘perfected’ and the Court has no power to revisit it.[3]
[3]R v McNamara (No 2) [1997] 1VR 257, 268.
The supplementary submission invokes what are said to be exceptions to the functus officio rule. Suffice it to say that nothing which has occurred could possibly be characterised as a ‘fundamental procedural mistake’,[4] or as a breach of the requirements of procedural fairness.[5]
[4]Ibid.
[5]Pantorno v The Queen (1989) 38 A Crim R 258, 271.
Ground 1: The irregularity in the trial
The background circumstances were outlined in the appellant’s written case, on which paragraphs [15]–[21] below are based.
The essence of the case against AP was that he was — along with a co-accused, Rachael Bultman — involved in the manufacturing of methylamphetamine at her house at 1/5 Rosalie Street, Springvale. In her statement to the police she exculpated AP in any involvement in the offending and nominated a Leigh Walker as the other person involved. As part of early discussions of how the trial was to proceed AP’s counsel described Walker ‘as a very interesting man’. He observed that his fingerprints were at the scene and that ‘he does have priors’.
On the second day of the trial, the prosecutor announced that the police had arrested Walker. The matter was stood down until the following day to allow for AP’s counsel to be provided with a statement — which the prosecutor indicated to the court would involve Walker denying any involvement in the offending — and a copy of the police audiovisual interview conducted with him. The prosecution announced an intention to call Walker on the trial.
On the third day of the trial, there was further discussion about the status of Walker. When the trial judge asked whether he had any prior convictions, AP’s counsel informed the judge that he had a drug prior conviction and had a ‘prior for manufacturing, for which he was on a suspended sentence at the time’.
Prior to the Basha hearing with Walker, AP’s counsel cross-examined the informant, Detective Kerr, about Walker’s prior convictions — which included matters of dishonesty but also possess drug of dependence and manufacture a drug of dependence — from a court appearance at the Dandenong Magistrates Court on 9 July 2010.
Following the evidence of Detective Kerr a Basha hearing was conducted with Walker. AP’s counsel cross-examined Walker extensively about the court appearance of 9 July 2010. In fact, AP’s counsel had appeared on behalf of Walker on 9 July 2010.
The prosecution called Walker at trial. The scope of his evidence in chief was limited: it was confined to the hire of the white van that he claimed he had hired on behalf of AP and the circumstances of its return. He said he knew AP. He was also asked if he knew Bultman and he said he had met her a couple of times. He was asked by the prosecutor for an explanation as to how his fingerprints came to be on a couple of Pyrex glass dishes and he said he could not explain it. He denied ever being inside the premises at 1/5 Rosalie Street Springvale.
In cross-examination, Walker was questioned extensively about the white van. It was put to him that he entered into an agreement with Bultman to manufacture amphetamine at her premises on 16 August and 17 August 2011 and he had used the white van in the preceding week to deliver precursor chemicals and glassware to her premises. He denied those allegations. And he also denied having his premises raided. He was never questioned about his prior convictions, which included a prior conviction for the manufacture of methylamphetamine.
The written submission for the appellant was in these terms:
A serious irregularity occurred in AP’s trial because his counsel had previously acted for Leigh Walker. AP’s counsel, having appeared for the prosecution witness Walker in prior drug related matters, had a clear conflict of interest and should not have cross-examined him in AP’s trial because he should have not have appeared for AP once Walker was to be called as a witness.
Walker was not an incidental witness who provided evidence of a formal, or uncontested, nature. He featured significantly in the trial. Indeed, it was AP’s defence that it was Walker and Bultman, and not him, who were involved in the process of manufacturing the methyl-amphetamine on the evening of 16 August 2011. Walker was, in short, an alternative suspect for those very charges to which AP faced, in circumstances where his counsel had acted for him in relation to a similar type of offending.
The trial record reveals that having cross examined Walker extensively on a Basha hearing about his prior convictions — including prior convictions where AP’s counsel had appeared for him — at trial there was no cross examination at all about those prior convictions. Those prior convictions were clearly relevant to any attack upon the credibility of Walker in circumstances where — he not only denied any involvement in the offending — but denied having ever been being in the house at all, despite his fingerprints being on Pyrex dishes in the drug room where the methyl-amphetamine was manufactured.
Although there is nothing in the transcript to indicate AP’s counsel was aware that he had previously acted for Walker, the fact that he had done so in circumstances where he acted for him in similar matters has had the effect of undermining the appearance of justice and damaging the integrity of the judicial process. It has also produced a substantial miscarriage of justice.
First, if AP had been aware that his counsel had acted previously for Walker in similar matters — and thus revealed the conflict of interest — he would have had an opportunity to withdraw his instructions, adjourn the trial and obtain alternative representation. He has been denied that opportunity.
Second, a reasonable bystander, or fair minded member of the public, would have formed the view that in those circumstances it was antithetical to the requirement that justice must not only been done but be seen to be done, that counsel for AP should have appeared for him given his previous representation of Walker. In the result, the conviction of AP is ‘tainted’ and the conviction must be overturned.
As noted earlier, the Crown conceded that this irregularity had produced a substantial miscarriage of justice. According to the written case:
Whilst the fact that defence counsel had acted for a witness in the past would not in and of itself cause a substantial miscarriage of justice, in the circumstances of this case it has done so. The factors which support this conclusion include the importance of the evidence of the witness Leigh Walker, the failure of the applicant’s counsel to cross examine Mr Walker about his prior convictions (about which he was undoubtedly aware, having cross examined Mr Walker on the voir dire) and the realistic possibility that evidence of his prior convictions may have altered the jury’s view of Mr Walker’s or Ms Bultman’s evidence or the weight they gave to those respective witnesses.
We considered that the Crown’s response was cogent and compelling and that the ground must therefore succeed.
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