Attwood v The State of Western Australia
[2020] WASCA 51
•9 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ATTWOOD -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 51
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 5 NOVEMBER 2019
DELIVERED : 9 APRIL 2020
FILE NO/S: CACR 89 of 2018
BETWEEN: MELONY JANE ATTWOOD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: JENKINS J
File Number : INS 189 of 2017
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of murder - Whether the trial judge failed adequately to direct the jury as to the appellant's defence - Whether the trial judge erred by failing to direct the jury in relation to comments the prosecutor should not have made in his closing address - Whether defence counsel failed adequately and competently to conduct the appellant's defence
Legislation:
Criminal Code (WA), s 279
Criminal Procedure Act 2004 (WA), s 112
Result:
Appellant's application in the appeal dated 7 August 2018 for leave to adduce additional evidence granted
State's applications in the appeal dated 1 April 2019 and 2 August 2019 for leave to adduce additional evidence granted
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr S D Freitag SC |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | Simon Freitag |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Colley v The State of Western Australia [2015] WASCA 79
De Silva v The Queen [2013] VSCA 339; (2013) 236 A Crim R 214
McMahon v The State of Western Australia [2010] WASCA 143
Morgan v The State of Western Australia [No 2] [2019] WASCA 185
Ruthsalz v The State of Western Australia [2018] WASCA 178
Southern v The State of Western Australia [2018] WASCA 234
The State of Western Australia v Attwood, Dymock & Edhouse [2018] WASCSR 92
Table of contents
BUSS P:
The relevant facts and circumstances of the offending as found by the trial judge in her sentencing remarks
The grounds of appeal
Ground 3: the appellant's written statement dated 23 April 2016
Ground 3: the appellant's electronically recorded interview with police on 10 May 2016
Ground 3: overview of the State's case against Mr Edhouse, the appellant and Mr Dymock at the trial
Ground 3: overview of the defences of Mr Edhouse, the appellant and Mr Dymock at the trial
Ground 3: overview of the appellant's case at the trial
Ground 3: additional evidence sought to be adduced in the appeal
Ground 3: the appellant's affidavit
Ground 3: the appellant's written instructions to Mr Utting as to the State's witness statements
Ground 3: Mr Utting's written advice as to whether the appellant should give evidence at the trial
Ground 3: the appellant's evidence at the hearing of the appeal
Ground 3: Mr Utting's affidavit
Ground 3: Mr Utting's evidence at the hearing of the appeal
Ground 3: Mr Manera's affidavit
Ground 3: Mr Manera's evidence at the hearing of the appeal
Ground 3: the appellant's submissions
Ground 3: the State's submissions
Ground 3: the applicable legal principles
Ground 3: its merits
Ground 1: the appellant's submissions
Ground 1: the State's submissions
Ground 1: its merits
Ground 2: the appellant's submissions
Ground 2: the State's submissions
Ground 2: its merits
Ground 4
Conclusion
MAZZA JA:
BEECH JA:
Introduction
Findings of fact: why ground 3 fails
Background
The meeting of 12 February 2018
Further discussions in the course of the trial
Mr Utting's letter dated 18 February 2018
The appellant's agreement that Mr Edhouse not be cross‑examined and the consequences of that agreement
The appellant's instruction to Mr Utting that her case would not rely on her original instructions, but would adopt Mr Edhouse's evidence
Why ground 3 fails: summary
Ground 1
Grounds 2 and 4
Orders
BUSS P:
This is an appeal against conviction.
The appellant and two co-accused, Robert Wayne Edhouse and Corey Joshua Dymock, were jointly charged with murder. The indictment pleaded that on 22 April 2016, at Girrawheen, the appellant, Mr Edhouse and Mr Dymock murdered Alan George Taylor, contrary to s 279 of the Criminal Code (WA) (the Code).[1] Each of the appellant, Mr Edhouse and Mr Dymock pleaded not guilty to the charge.
[1] A male juvenile co-offender, DG, pleaded guilty to Mr Taylor's murder. DG was convicted and sentenced, prior to the appellant's trial, in the Children's Court of Western Australia.
The appellant, Mr Edhouse and Mr Dymock were jointly tried before Jenkins J and a jury. The trial began on 8 February 2018 and ended on 12 March 2018.
On 12 March 2018, the appellant and Mr Edhouse were convicted of Mr Taylor's murder. Mr Dymock was acquitted of murder, but convicted of the lesser charge of being an accessory after the fact to murder, contrary to s 562 read with s 10(1) of the Code.
On 8 May 2018, the trial judge sentenced each of the appellant and Mr Edhouse to life imprisonment with a minimum non-parole period of 21 years, backdated to 10 May 2016.
I would refuse leave to appeal and dismiss the appeal.
The relevant facts and circumstances of the offending as found by the trial judge in her sentencing remarks
The relevant facts and circumstances of the offending as found by the trial judge in her sentencing remarks are as follows.[2]
[2] The State of Western Australia v Attwood, Dymock & Edhouse [2018] WASCSR 92 (Sentencing Remarks).
Mr Taylor was aged 42 years when he was killed. He lived with the appellant at a home he owned in Arnos Way, Girrawheen (the Arnos Way property). They had been in a relationship for about eight to nine years. Mr Taylor and the appellant had a young son who lived with them. Mr Edhouse and DG also lived at the Arnos Way property. Mr Dymock had previously lived at the Arnos Way property, but in April 2016 he moved to live with his girlfriend, Skye Dunn.
The appellant, Mr Edhouse and Mr Dymock were members of a white supremacist group called the 'Aryan Nations'.
From at least early 2016, the appellant and Mr Edhouse had engaged in a sexual relationship. Some time prior to 22 April 2016, the appellant and Mr Edhouse decided to murder Mr Taylor. The appellant and Mr Edhouse discussed with DG methods of killing Mr Taylor. They offered DG money to assist in Mr Taylor's murder. Her Honour found that Mr Dymock 'was aware that there was talk about killing Mr Taylor but consistent with the jury's verdict he did not join in with the plan'.[3]
[3] Sentencing Remarks [52].
On 21 April 2016, Mr Taylor returned to the Arnos Way property from the mine site where he worked as a fly in/fly out worker. DG spent the evening at Mr Dymock's apartment in Maylands. Mr Taylor spent the evening at the Arnos Way property with the appellant and Mr Edhouse.
At about 8.00 am on 22 April 2016, the appellant and Mr Edhouse left the Arnos Way property, in the appellant's car, to take the young son of Mr Taylor and the appellant to the childcare centre he attended.[4]
[4] Sentencing Remarks [53].
While the appellant and Mr Edhouse were out, a nurse visited the Arnos Way property to obtain a blood sample from Mr Taylor. Mr Taylor was alive and in good health when the nurse left the Arnos Way property sometime after 8.00 am.[5]
[5] Sentencing Remarks [54].
After they attended the childcare centre, the appellant and Mr Edhouse collected Mr Dymock and DG from Mr Dymock's apartment. At about 9.30 am, the appellant, Mr Edhouse, Mr Dymock and DG left Mr Dymock's apartment, in the appellant's car, to return to the Arnos Way property.[6]
[6] Sentencing Remarks [55].
At the trial, evidence, including CCTV footage, established that the offenders arrived at the Arnos Way property in the appellant's car at about 10.00 am and that the offenders departed from the Arnos Way property in the appellant's car at about 10.40 am. The CCTV footage was taken from a camera at a neighbouring property. The State's case was that Mr Taylor was attacked during that period of about 40 minutes.
When the offenders arrived at the Arnos Way property at about 10.00 am, Mr Taylor was in bed either asleep or dozing. The offenders spent some time on the back patio. The appellant then had a shower. While the appellant was having the shower, Mr Edhouse and DG went into the master bedroom of the Arnos Way property and attacked Mr Taylor. Each struck him to the head with a hammer. Consistently with the jury's verdict, the trial judge found that Mr Dymock 'was outside whilst the fatal attack occurred and that he did not participate in the attack on the deceased or aid in the murder'.[7]
[7] Sentencing Remarks [66].
The offenders put their bloodstained clothing into a bag which was then placed in the back of the appellant's car. The appellant went through the house and moved or disturbed various household items to make it look as though the house had been burgled.
At about 10.40 am (being about 40 minutes after they had arrived at the Arnos Way property), the appellant, Mr Edhouse, Mr Dymock and DG drove in the appellant's car to Grand Cinemas in Warwick to watch a movie (namely, the Jungle Book). The trial judge found that they had attended the cinema in order to establish an alibi for themselves.[8]
[8] Sentencing Remarks [75].
During the movie, Mr Dymock and DG left the cinema to purchase deodorant from nearby shops to conceal the smell of blood and body odour on the offenders.
At about 12.45 pm, the offenders returned to Mr Dymock's apartment. There, they told Ms Dunn that they had murdered Mr Taylor.
The offenders then showered at Mr Dymock's apartment.
At about 3.30 pm, the appellant and Mr Edhouse left Mr Dymock's apartment. Mr Dymock walked out of the apartment block with them. Both Mr Edhouse and Mr Dymock could be seen on CCTV to be carrying plastic bags, which her Honour found contained incriminating evidence that was never located. Mr Dymock then returned to his apartment without the plastic bag.[9]
[9] Sentencing Remarks [80].
At about 4.30 pm, the appellant arrived alone at the Arnos Way property. When she arrived, the appellant called the 000 emergency number in order to support her false story that Mr Taylor was at home, alive and uninjured, when she left for the cinema.
Paramedics attended at the Arnos Way property shortly afterwards and found Mr Taylor to be deceased. They declared Mr Taylor 'life extinct' at 5.18 pm.
Her Honour found, based on a post‑mortem examination, that Mr Taylor 'would have been alive but unconscious for between two to five hours after the infliction of the head injuries'.[10]
[10] Sentencing Remarks [88].
The grounds of appeal
The appellant relies upon four grounds of appeal.
Ground 1 alleges, in effect, that the trial judge erred by failing to direct the jury adequately as to the defence case advanced on the appellant's behalf.
Ground 2 alleges, in effect, that her Honour erred by failing to direct the jury in relation to the prosecutor's comments to the jury that the community and the family and friends of Mr Taylor had the right to a conviction.
Ground 3 alleges that there was a miscarriage of justice at the trial as a result of the appellant's defence counsel failing adequately and competently to conduct the appellant's defence.
The particulars of ground 3 assert that:
(a)Defence counsel failed adequately to open the defence case to the jury.
(b)Defence counsel failed adequately to cross‑examine the central prosecution witnesses.
(c)Defence counsel failed to elicit evidence of the appellant's prior good record.
(d)Defence counsel failed adequately to present the defence case to the jury in his closing address.
(e)Defence counsel acted contrary to the appellant's instructions by conceding that she was guilty of being an accessory after the fact to murder.
(f)Defence counsel failed to request redirections from the trial judge in respect of her Honour's failure to deal with the matters alleged in grounds 1 and 2.
Ground 4 alleges, in effect, that the combination of errors asserted in grounds 1, 2 and 3 establish, in combination, that a miscarriage of justice occurred at the trial.
On 9 November 2018, Mazza JA referred the application for leave to appeal to the hearing of the appeal.
It is convenient, first, to consider ground 3, next ground 1, then ground 2 and, finally, ground 4.
Ground 3: the appellant's written statement dated 23 April 2016
On 23 April 2016, the appellant gave a written statement to police.
In the statement the appellant asserted, relevantly:
(a)In March 2016, the appellant and Mr Taylor ended their relationship and the appellant commenced a relationship with Mr Edhouse. Mr Taylor continued to stay with the appellant and Mr Edhouse at the Arnos Way property most of the time.
(b)On 22 April 2016, the appellant awoke at about 7.30 am. She left the Arnos Way property at about 7.50 am with Mr Edhouse and her son. After taking her son to his day care centre, the appellant drove with Mr Edhouse to Mr Dymock's apartment. Between about 9.30 am and 10.00 am the appellant, Mr Edhouse, Mr Dymock and DG decided to go to the cinema. The appellant then drove with the others from Mr Dymock's apartment to the Arnos Way property.
(c) When they arrived at the Arnos Way property, the appellant invited Mr Taylor to come to the cinema. However, he said that he had just had a blood test and was feeling unwell.
(d)The appellant had a shower and prepared to leave. Mr Taylor was lying in bed. Mr Edhouse, Mr Dymock and DG were at the back of the property.
(e)The appellant, Mr Edhouse, Mr Dymock and DG arrived at the cinema at about 10.45 am. After the movie finished, the appellant called Mr Taylor at 12.57 pm. Mr Taylor did not answer his telephone. The appellant left a message for him.
(f)The appellant then drove with the others to Mr Dymock's apartment. The appellant called Mr Taylor again at 2.06 pm. Mr Taylor did not answer his telephone. The appellant left another message for him.
(g)The appellant remained at Mr Dymock's apartment until about 3.30 pm. At about 3.30 pm the appellant drove Mr Edhouse to Forrestfield. She then drove to the Arnos Way property, arriving at about 4.35 pm.
(h)As she was about to enter the house, the appellant noticed that the front door handle had been damaged. She thought immediately that something was wrong and called the 000 emergency number at 4.38 pm. She told the operator that she thought someone was in the house. The appellant went to the back of the house and saw that the rear sliding door was unlocked. She entered the house and noticed that various household items had been moved or disturbed. As she walked through the hallway there was a 'really weird smell'. She saw blood on the floorboards. The appellant looked into the bedroom. Mr Taylor was lying naked on the floor. There was 'blood everywhere'. The appellant 'couldn't believe what [she] was seeing'.
Ground 3: the appellant's electronically recorded interview with police on 10 May 2016
On 10 May 2016, the appellant participated in an electronically recorded interview with police.
During the interview the appellant said, relevantly:
(a)The appellant had not been involved in Mr Taylor's death (eroi 9).
(b)Everything in her written statement dated 23 April 2016 was true (eroi 10).
(c)After she had a shower at the Arnos Way property on the morning of 22 April 2016, the appellant left the house through the front door and got into her car. Mr Edhouse, Mr Dymock and DG went around the side of the house, through a gate, and got into the car. The appellant then drove with Mr Edhouse, Mr Dymock and DG to the cinema (eroi 40 ‑ 42).
The appellant's statements in the interview were generally consistent with the version of events in her written statement dated 23 April 2016.
Ground 3: overview of the State's case against Mr Edhouse, the appellant and Mr Dymock at the trial
The State's case against Mr Edhouse, the appellant and Mr Dymock at the trial was as follows.
The State's case against Mr Edhouse was that he was guilty of Mr Taylor's murder on the basis that he was a main offender; further or alternatively he aided in the murder; further or alternatively he counselled or procured the murder.
The State's case against the appellant was that she was guilty of Mr Taylor's murder on the basis that she counselled or procured the murder; further or alternatively she aided in the murder.
The State alleged that the appellant counselled or procured Mr Taylor's murder by urging or advising Mr Edhouse, DG and Mr Dymock to murder Mr Taylor, which they did.
The State alleged that the appellant aided in the murder by collecting DG and Mr Dymock in her car from Mr Dymock's apartment knowing they intended to murder Mr Taylor. The appellant then drove Mr Edhouse, DG and Mr Dymock to the Arnos Way property knowing that Mr Edhouse, DG and Mr Dymock, individually or collectively, intended to murder Mr Taylor. The appellant unlocked the back door to the house and, with that knowledge, permitted DG and Mr Dymock to enter. The appellant then turned up the volume of the music in the house to ensure that one or more of the others would have the confidence to commit the murder without being heard or detected by neighbours or others.
The State alleged that the appellant's motive to kill Mr Taylor arose from her wanting to be in a continuing relationship with Mr Edhouse and from her wanting to benefit from Mr Taylor's estate including an insurance policy on his life.
The State's case against Mr Dymock was that he was guilty of Mr Taylor's murder on the basis that he was a main offender; further or alternatively that he aided in the murder.
Ground 3: overview of the defences of Mr Edhouse, the appellant and Mr Dymock at the trial
Mr Edhouse's defence at the trial was that the State had not proved its case against him on any of the bases relied upon by the State. Ultimately, Mr Edhouse did not dispute that he was guilty of being an accessory after the fact to Mr Taylor's murder.
The appellant's defence at the trial was that the State had not proved its case against her on any of the bases relied upon by the State. The appellant also contended that, on the basis of Mr Edhouse's evidence at trial, the jury should have a reasonable doubt about her guilt of murder. Ultimately, the appellant's defence counsel, in effect, conceded in his closing address that the appellant was guilty of being an accessory after the fact to Mr Taylor's murder.
Mr Dymock's defence at the trial was that the State had not proved its case against him on any of the bases relied upon by the State. Mr Dymock contended that the jury should have a reasonable doubt about his guilt of murder having regard to his statements in his electronically recorded interview with police.
Prior to the commencement of the trial, DG pleaded guilty in the Children's Court to Mr Taylor's murder. DG undertook to give evidence against Mr Edhouse, the appellant and Mr Dymock as a State witness. He did so.
Prior to the commencement of the trial, Ms Dunn pleaded guilty to being an accessory after the fact to Mr Taylor's murder. Ms Dunn undertook to give evidence against Mr Edhouse, the appellant and Mr Dymock as a State witness. She did so.
Mr Edhouse, the appellant and Mr Dymock contended at the trial that DG's plea of guilty to Mr Taylor's murder was consistent with DG being the only person who had murdered Mr Taylor. DG had falsely implicated others so that he would receive a lower sentence.
Mr Edhouse gave evidence at the trial. The appellant and Mr Dymock did not give evidence.
Mr Edhouse said in evidence that, on the morning of 22 April 2016, Mr Edhouse, the appellant, Mr Dymock and DG went to the Arnos Way property to take Mr Taylor out to lunch so that Mr Taylor and DG could resolve issues between them. However, that position changed after the appellant spoke to Mr Taylor. The appellant said that Mr Taylor was feeling unwell. The appellant told DG that DG should speak to Mr Taylor and resolve their issues while she had a shower.
Mr Edhouse said that, shortly afterwards, he had a conversation with Mr Dymock and DG outside the house. DG was upset. DG then picked up a hammer that was on a table outside the house and went into the house.
According to Mr Edhouse, Mr Dymock told him that he had better stop DG. Mr Edhouse went into the house after DG. He heard DG shouting at Mr Taylor and he heard three consecutive noises which he thought were the sounds of DG striking Mr Taylor.
Mr Edhouse said he walked into the bedroom and turned on the light. He said to DG, 'what have you done?' (ts 1232). Mr Edhouse was stunned. He told DG that he had to call an ambulance, but DG responded that he was not going to prison and he was not going to call an ambulance. Mr Edhouse thought that Mr Taylor was dead.
Next, Mr Edhouse and DG went outside the house. However, DG went into the house again with the hammer and Mr Edhouse followed him. Mr Edhouse saw DG hit Mr Taylor with knuckle dusters and he saw DG punch Mr Taylor. Mr Edhouse pulled DG away from Mr Taylor. Mr Edhouse acknowledged that a shoe print on Mr Taylor's cheek was made by him. Mr Edhouse appeared to contend that he had inadvertently stepped on Mr Taylor's cheek during the scuffle with DG. Eventually, DG left the bedroom.
Mr Edhouse admitted that he went to significant lengths to cover up what DG had done because DG did not want to go to prison. Mr Edhouse's actions included changing his clothes, disposing of the clothes he had worn, disposing of the hammer and going to the cinema in order to create an alibi.
In summary, Mr Edhouse asserted that DG had killed Mr Taylor and that Mr Edhouse, the appellant and Mr Dymock had endeavoured to assist DG by covering up the killing.
Ground 3: overview of the appellant's case at the trial
At the trial, the appellant was represented by a barrister, Richard McKinnell Utting.
Mr Utting made an opening statement. He emphasised the presumption of innocence and that the State was required to prove the appellant's guilt beyond reasonable doubt. Mr Utting urged the jury to keep an open mind while they heard all of the evidence. The jurors were required to be impartial and to make a rational decision. Sympathy or prejudice must be put aside.
Mr Utting did not cross‑examine Mr Edhouse.
As I have mentioned, neither the appellant nor Mr Dymock gave evidence.
Mr Utting was very critical in his closing address of the evidence given by DG and Ms Dunn. He described DG as a 'lying psychopath' and Ms Dunn as a 'meth‑taking goldfish' (ts 1552). Defence counsel for Mr Edhouse and defence counsel for Mr Dymock had addressed the jury before Mr Utting. Mr Utting accepted and adopted their analysis of the evidence given by DG and Ms Dunn.
Mr Utting referred to and made submissions on various parts of the evidence. He focussed on the evidence given by DG and Ms Dunn.
Mr Utting told the jury that it was not disputed that the appellant had told lies to the police. He explained that she told lies to 'cover up' for DG and out of 'loyalty to her fellow Aryan Nation[s] members' (ts 1560). Mr Utting added that, for 'covering up', the appellant was an accessory after the fact (ts 1560).
Mr Utting submitted that, on the evidence of DG and the evidence of Mr Edhouse, there was no suggestion that, when they left the Arnos Way property to go to the cinema, the appellant had seen Mr Taylor's body. Mr Utting referred to '[the appellant's] distress in the 000 call' after she had seen the body (ts 1561).
Ground 3: additional evidence sought to be adduced in the appeal
Each of the appellant and the State applied for leave to adduce additional evidence in the appeal in relation to ground 3.
The appellant made an application in the appeal dated 7 August 2018, the relevant evidence being the appellant's affidavit sworn 4 August 2018.
The State made two applications in the appeal. The first application was dated 1 April 2019, the relevant evidence being the affidavit affirmed 1 April 2019 of Mr Utting, who, as I have mentioned, was the appellant's defence counsel at the trial. The second application was dated 2 August 2019, the relevant evidence being the affidavit sworn 2 August 2019 of David Charles Manera, who was the appellant's solicitor at the trial.
The applications for leave were referred to the hearing of the appeal. I would grant each of the applications.
The appellant, Mr Utting and Mr Manera were cross‑examined on their affidavits at the hearing.
Ground 3: the appellant's affidavit
In her affidavit, the appellant asserted, relevantly, as follows:
(a)Prior to the trial, she gave Mr Utting written instructions as to the State's witness statements.
(b)Mr Utting suggested to her that she not give evidence at the trial and that Mr Edhouse, who did give evidence, not be cross‑examined by him. The appellant said that, at the close of the State's case, she agreed with that suggestion.
(c)Her instructions to Mr Utting 'throughout the preparation for the trial and during the trial itself [were] that [she] strongly denied any part in the planning or facilitation or causation of [Mr Taylor's] murder … or to being a party after the fact and that [her] statements to the police were true'.
(d)Although she accepted that giving evidence 'might not be to [her] advantage', she did not instruct Mr Utting to depart from 'the fundamental proposition that [she] was never a party to a cover up [and] that [she] had [never] given a false version of the events to the police to protect any of [her co‑accused]'.
(e)She had always instructed Mr Utting that when she made her statements to the police she 'knew nothing of the murder' and that 'none of [her] post‑offence conduct was for the purpose of assisting the other accused to escape detection or punishment'.
(f)She did not instruct Mr Utting at any stage to concede that she was an accessory after the fact.
(g)In a note she wrote and signed on 21 February 2018 (the note and signature appearing on a letter dated 18 February 2018 from Mr Utting; see [81] below), she agreed 'to nothing more than not testifying at the trial and agreeing that Edhouse not be cross‑examined'.
(h)A concession made by Mr Utting in his closing address to the effect that she had lied to the police and had covered up the murder was 'a complete shock to [her], not true and was made contrary to [her] instructions'.
Ground 3: the appellant's written instructions to Mr Utting as to the State's witness statements
The appellant annexed to her affidavit written instructions she gave to Mr Utting as to the State's witness statements.
The written instructions were, relevantly, as follows.
As to Ms Dunn's proposed evidence, the appellant said:
(a)There was no agreement to kill Mr Taylor.
(b)As to the events at the Arnos Way property before the appellant, Mr Edhouse, Mr Dymock and DG left for the cinema:
I never trashed my house, I had a shower after talking to [Mr Taylor], got dressed, and went outside for a smoke, told the boys we should go, [DG] said [he is] not ready, I said hurry up, [DG] walked into the laundry door, the boys [Edhouse, Dymock] walked out the back gate, I walked back through the house, [grabbed] my handbag [out] of the recliner that faced up the hallway [DG] was standing in the hallway, hands behind his back, I said hurry up, he said I'm not ready and I need a crap, I rolled my eyes and said close the front door and hurry up we will be late.
(c)There was 'nothing false' about the appellant calling the police. The appellant added, 'the handle on the front door was hanging and broken, I called for [Mr Taylor] there was no response, I freaked out and called the police'. The appellant then said:
When I found [Mr Taylor] I freaked out, I started dry reaching [sic], screaming, crying, I somehow ended back out the front yard and never went back inside.
As to DG's witness statement, the appellant said:
(a)Mr Taylor decided he was not coming to the cinema. He wanted to rest and did not want to be around DG. The appellant enquired of Mr Taylor why he had asked her to invite DG. Mr Taylor replied 'so [DG] can pack up his stuff after'. The appellant left the bedroom 'put a CD in and turned up the volume, went back to the room and closed the door so only [an] inch gap was showing, I winked, [Mr Taylor] smiled, get some rest I said, then I got into the shower'.
(b)The appellant then said:
I had a quick shower, put the same clothes on, went into the lounge with my shoes and [grabbed] a smoke out of my bag, went outside [where] the boys [Edhouse, [DG], Dymock] were sitting at the table, I lit my smoke, started putting my shoes on, asked the boys if they were ready, [DG] was the only one who said no, I said hurry up then, he walked into the house via the laundry door, I finished my smoke, the two [Edhouse and Dymock] walked out the side gate, I walked back through the [dining] room sliding door, got my handbag [out] of the recliner chair. Turned around to see [DG] looking [weird] hands behind his back, what are you doing I said, I need a crap and I'm not ready, he sounded angry, I rolled my eyes at him and said hurry up, and shut the front door behind you, and I walked out of the house.
(c)The appellant said that it was about 10.20 am or 10.25 am when she, Mr Edhouse and Mr Dymock got into her car to go to the cinema. The appellant added:
So I sat in the car with [Edhouse and Dymock] they said [where's DG] I said fucking around, I looked at the phone and it was now [10.30 am] I started fucking around with my CDs in the car I put on a CD … I looked at the front door and was like what the fuck is he doing in there, I was about to get out of the car when [DG] walked out, he looked white and [weird], he jumped in the car and we left, I didn't say much to him [because] I looked at the time and it was 10.42 am we were going to be late.
(d)The appellant commented that DG 'had to take walks quite a bit because of his temper'.
(e)When she was in the shower the appellant was not aware of DG or anyone else being in the house. She was not speaking to Mr Taylor from the bathroom. The bathroom door was shut and music was playing.
(f)The appellant noted that [DG] was 'so unsettled at the movies, I put it down to his ADD, he looked like he was uncomfortable, [fidgeting a lot] in his seat'.
(g)DG had been told that he had to leave the Arnos Way property. DG had 'punched a hole through the bedroom door of the room the boys used, he got a bit [aggressive] towards me at times and our son Draven, [theft], lies. I don't know if there was a hammer but after hearing about what [DG] did to his [step-father] I wonder if [DG] did the same to [Mr Taylor] after learning he had [nowhere] to live, he was inside Arnos Way for about 20 [minutes] while [I] and Edhouse and [Dymock] were in the car. I never saw his knuckle dusters after that day, there was no clothing bag in my car, [DG] must have cleaned himself up and hid the weapon'.
(h)Early on the morning of 22 April 2016, the appellant had told DG that '[Mr Taylor] was not happy with him living with us at Arnos Way. [Mr Taylor and I] discussed that [on the night of 21 April 2016] when I picked [Mr Taylor] up from the airport, we both agreed that [DG] was not making an effort to deal with his anger issues and he had punched a hole in the door in the back room'.
The appellant asserted in her written instructions that after she found Mr Taylor dead at the Arnos Way property and she had spoken with the police, she went to Mr Dymock's apartment. She elaborated:
[Mr Edhouse and DG] were waiting for me outside. I went up to the unit and told them [Mr Taylor] was dead. I was quite hysterical. I said there was blood everywhere, the house was trashed. I was [wrapped] in [Mr Edhouse's] arms, [Mr Dymock] was freaking out and [Mr Edhouse] had tears in his eyes, I went and had a smoke and cried on [Mr Edhouse's] lap, then I curled up on the lounge, [DG] had already gone back to sleep.
The appellant said in her written instructions that during the two week period after Mr Taylor's death she stayed at a hotel for four days because '[DG] was becoming angry at my constant crying, he would say "get the fuck over it" [he is] dead, [DG would] say, well now I can live with you because [Mr Taylor] is gone'.
The appellant claimed in her written instructions that after she had been charged and was in prison on remand 'many things [had] come back to [her]' because she had 'no alcohol or medication to numb the memories'. In particular, the appellant said she now remembered that she did not shut the front door at the Arnos Way house when she left for the cinema. Rather, it was DG who shut the front door as he was still in the house when she left.
Ground 3: Mr Utting's written advice as to whether the appellant should give evidence at the trial
By letter dated 18 February 2018, Mr Utting gave the appellant this advice as to whether she should give evidence at the trial:
As I have discussed with you, it appears [that Mr Edhouse] intends to give evidence. He will say that [DG] killed [Mr Taylor]. There was no plan. What happened after that was a cover up. That explains the trashing of the house, the changing of clothes and the damage to the front door.
It also dilutes [Ms Dunn's] evidence.
The cover up is contrary to your instructions. Your version of events will be given by the prosecution. Your [written statement dated 23 April 2016 to police] is already in evidence and they will play the [electronically recorded] interview.
The problem is, if you give evidence, you will have to deny the cover up. This will make [Mr Edhouse] look like a liar and be detrimental to the cases of all accused.
It is completely a matter for you as to whether you give evidence or not. If you give evidence, I will be obliged to cross‑examine [Mr Edhouse] to put your version of events.
If his evidence creates a reasonable doubt in the minds of the jury, then you would be acquitted of murder. A conviction of accessory after the fact does not carry mandatory life imprisonment.
My advice to you, is that you do not give evidence. It will not improve your position. As I stress, it is a decision that you alone have to make.
At the foot of the letter there is this handwritten note:
I Melony Attwood elect not to give evidence in my case.
The appellant's signature appears beneath the note together with the handwritten date 21 February 2018.
As I have mentioned, Mr Edhouse gave evidence, but the appellant and Mr Dymock did not give evidence.
Ground 3: the appellant's evidence at the hearing of the appeal
The appellant gave evidence at the hearing of the appeal, relevantly, as follows.
In evidence in chief, the appellant said:
(a)The appellant gave the written instructions annexed to her affidavit to Mr Utting and Mr Manera (appeal ts 33).
(b)The appellant did not consider herself to be an accessory after the fact to murder (appeal ts 34).
(c)The appellant did not instruct Mr Utting before the trial commenced or during the trial to make an offer to plead guilty as an accessory after the fact (appeal ts 34).
(d)The appellant was not aware before the trial commenced that Mr Edhouse would give evidence (appeal ts 34).
(e)During the trial Mr Utting and Mr Manera told the appellant that 'it's a cut‑throat case' and you are 'either to get life imprisonment or you will get after the fact' (appeal ts 34). That advice was given to her at the court (appeal ts 34).
(f)The discussion referred to in Mr Utting's letter dated 18 February 2018 (which the appellant signed on 21 February 2018) occurred before the appellant signed the letter (appeal ts 35). During that discussion Mr Utting and Mr Manera told her that, with Mr Edhouse deciding to give evidence, the case had become 'cut‑throat lawyering' (appeal ts 35). She would either get 'murder with life' or get 'accessory after the fact' (appeal ts 35).
(g)The appellant first saw Mr Utting's letter dated 18 February 2018 when she was in the dock during the trial (appeal ts 36). Mr Utting handed her the letter and said, 'if you don't want to take the stand, because Robert Edhouse is taking the stand, you just need to sign this paperwork' (appeal ts 36). During that conversation Mr Edhouse and Mr Dymock were also in the dock and three security guards were in the vicinity (appeal ts 36).
(h)When the appellant signed Mr Utting's letter dated 18 February 2018, she understood that the letter and her signature on the letter meant no more than she was not giving evidence (appeal ts 37).
(i)Counsel for the appellant referred the appellant to para 4 of her affidavit sworn 4 August 2018 in which the appellant said that, at the conclusion of the State's case, she agreed with Mr Utting's suggestion that she not give evidence and that Mr Edhouse not be cross‑examined. Counsel asked the appellant why she had agreed that Mr Edhouse not be cross‑examined. The appellant responded:
I did not agree he not be cross‑examined. I agreed with Mr [Utting] when he said that I won't push the issue with Robert Edhouse (appeal ts 37 – 38).
(j)The appellant's expectation was that, when Mr Edhouse gave evidence, he would tell lies about her and that Mr Utting would confront Mr Edhouse about her 'side of the story' (appeal ts 38).
(k)As to the statement in the third paragraph of Mr Utting's letter dated 18 February 2018 that Mr Edhouse proposed to give evidence that there was a 'cover up' after DG killed Mr Taylor, and that the 'cover up' was contrary to the appellant's instructions, the appellant said that when Mr Utting handed her the letter, while she was in the dock during the trial, she 'scanned' the letter; she read 'the first part' and then, because she was in the dock with the other co-accused, she quickly signed the letter and handed it back (appeal ts 38).
(l)The appellant had never, at any stage, given instructions to Mr Utting or Mr Manera that she had participated in the trashing of the house, the changing of clothes or the damaging of the front door at the Arnos Way property (appeal ts 38).
(m)The appellant said that when she signed Mr Utting's letter dated 18 February 2018 her position was that everything she had said in her written statement dated 23 April 2016 and her electronically recorded interview with police on 10 May 2016 was true (appeal ts 38 – 39). The appellant added that her written instructions to Mr Utting and Mr Manera reflected what she had said in the written statement and the electronically recorded interview (appeal ts 39). When she signed the letter Mr Manera was not present (appeal ts 45).
(n)The appellant said that at no stage during the trial did she change her position or wish to depart from what she had said in her written statement dated 23 April 2016 or her electronically recorded interview with police on 10 May 2016 (appeal ts 39). The appellant added that she was 'stuck in what was called cut‑throat lawyering where [she] had no decision … to take' (appeal ts 39). She understood 'cut‑throat lawyering' to mean that she was 'either going to get life or after the fact' and there was 'no other decision to take' (appeal ts 39). The appellant said she reacted to that advice by breaking down and crying and that Mr Utting and Mr Manera were present when that happened (appeal ts 39). It happened about a week before she signed Mr Utting's letter dated 18 February 2018 (appeal ts 39).
(o)The appellant said that when she was given Mr Utting's letter dated 18 February 2018 she believed Mr Utting 'would stand up for [her] and cross‑examine [Mr Edhouse]' on the information she had given Mr Utting in her written instructions (appeal ts 39). The appellant said that when Mr Utting did not cross‑examine Mr Edhouse she was 'shocked' (appeal ts 39). She did not say anything because she did not want to interrupt the court (appeal ts 39).
(p)The appellant said that when Mr Utting conceded in his closing address that she had told some lies to the police, that was not a concession she had expected or agreed to (appeal ts 40). Similarly, it was 'a surprise' to the appellant when Mr Utting said, in essence, in his closing address that she was an accessory after the fact to murder (appeal ts 40). She had not, at any stage, instructed Mr Utting or Mr Manera that she wanted to be convicted of being an accessory after the fact (appeal ts 40).
(q)The appellant said that she signed Mr Utting's letter dated 18 February 2018 'saying I could [sic] not take the stand even though I kept saying to [Mr Utting] I really wanted to take the stand' (appeal ts 40). The appellant believed that it was after Mr Edhouse gave his evidence that she said to Mr Utting, 'I should be up there giving evidence' (appeal ts 41). The appellant claimed that when she signed Mr Utting's letter she did not realise that the letter meant 'that I was going to agree with what Robert Edhouse said on the stand' (appeal ts 41). In other words, the appellant said that she did not understand that, by choosing not to give evidence, she was agreeing with Mr Edhouse (appeal ts 41).
(r)The appellant said that at a meeting at Melaleuca Prison with Mr Utting and Mr Manera, before she was given Mr Utting's letter dated 18 February 2018, there was a reference to 'cut‑throat lawyering' and whether the appellant should give evidence. The appellant said she told Mr Utting and Mr Manera at that meeting that she believed she needed 'to take the stand'. Mr Utting and Mr Manera had 'a bit of an argument' because Mr Manera said, 'if she wants to take the stand, let her', and Mr Utting did not agree (appeal ts 41). Towards the end of the meeting, Mr Utting said that he was her lawyer and that 'it was the best decision, at the end of the day, not to take the stand' (appeal ts 41 – 42). The appellant said she did 'what [her] lawyer advised' (appeal ts 42).
(s)The appellant said Mr Utting had told her that she would be 'a mess on the stand and that [she] would have two lawyers and the DPP going at [her] and he didn't believe [she] would be able to cope on the stand' (appeal ts 42).
(t)The appellant said she had signed Mr Utting's letter dated 18 February 2018 saying she did not want to give evidence because '[she] thought about it and [she] thought the evidence was enough to speak for itself that [she] had nothing to do with it' (appeal ts 42).
(u)The appellant said that she was not told by Mr Utting or Mr Manera what Mr Edhouse would say in evidence. She was merely told that Mr Edhouse was 'going to go for after the fact' (appeal ts 42 – 43).
(v)The appellant said she could not recall any conversation with Mr Utting where he told her that he would not cross‑examine DG fully because of the situation with Mr Edhouse (appeal ts 43).
(w)The appellant said she could recall speaking with Mr Utting after his closing address. She did not complain to Mr Utting about the content of his closing address because it was 'too late for any complaint'. She had 'already [been] found guilty' (appeal ts 43 – 44). The appellant then added that she believed Mr Utting came up to her in the dock, before the jury returned its verdict, and told her 'don't worry. I've got it all under control in my closing speech' (appeal ts 44).
(x)The appellant denied that she had told Mr Utting, at a meeting on 16 April 2018 at Melaleuca Prison, that Mr Utting had done 'everything we agreed'. The appellant believed she told Mr Utting 'well, it's too late now either way' (appeal ts 44).
(y)The appellant said that the trial was not conducted in accordance with what she had agreed or what she had instructed (appeal ts 44).
(z)At the time of the trial the appellant did not have a criminal record. She believed she did not have any discussion with Mr Utting about whether or not her lack of a criminal record would be put before the jury (appeal ts 44 – 45).
At the hearing of the appeal the appellant was asked questions by the court in relation to an apparent discrepancy between pars 4 and 9 of her affidavit, on the one hand, and her evidence‑in‑chief at the hearing, on the other. In pars 4 and 9 the appellant said, in essence, that she agreed with Mr Utting's suggestion that she not give evidence and that Mr Utting not cross‑examine Mr Edhouse. However, the appellant said, in evidence‑in‑chief, that she expected that Mr Edhouse would tell lies about her in his evidence and that Mr Utting would confront Mr Edhouse about her 'side of the story' (appeal ts 38). Also, the appellant said, in evidence‑in‑chief, that when Mr Utting did not cross‑examine Mr Edhouse she was 'shocked' (appeal ts 39). The appellant's explanation to the court at the hearing was that there were 'certain things [that] Mr Utting was willing to ask [Mr Edhouse]' but there were 'certain things [Mr Utting was not] going to ask him' (appeal ts 67). The appellant added that '[it] was to do with damage control' (appeal ts 67 – 68). She thought that Mr Utting was going 'to cross‑examine [Mr Edhouse] but not fully' (appeal ts 68).
Ground 3: Mr Utting's affidavit
In his affidavit, Mr Utting asserted, relevantly, as follows:
(a)Mr Manera instructed Mr Utting to act for the appellant. Mr Utting acted for the appellant both at the trial and at the sentencing.
(b)The appellant stood trial in the Supreme Court from 8 February 2018 to 12 March 2018. The sentencing proceedings took place on 1 and 8 May 2018.
(c)Mr Utting met with the appellant in the detention area of the District Court building on 12, 13, 14 and 21 February 2018 and on 7 March 2018. Mr Manera was present at the meetings on 12 and 14 February 2018.
(d)Mr Utting had telephone conversations with the appellant while she was in Melaleuca Prison on 10, 17 and 24 February, 13 March and 30 April 2018 (two conversations).
(e)On 18 December 2017, Mr Utting and Mr Manera met with the appellant while she was in prison. On that occasion Mr Utting gave the appellant a three page generic letter setting out the practice and procedure of a criminal trial.
(f)The appellant made copious notes (being her written instructions) about the State brief. Mr Manera sent the written instructions to Mr Utting. In the written instructions the appellant speculated that DG committed the murder while she, Mr Edhouse and Mr Dymock were waiting for DG in her car outside the Arnos Way property. Otherwise, the murder must have been committed by a stranger.
(g)Mr Utting had 'some unease' with the appellant's version of events because:
(i)At the relevant time there were two savage dogs roaming in the backyard of the Arnos Way property. It was difficult to imagine how a stranger to the dogs could have entered the house through the back door.
(ii)The person who murdered Mr Taylor damaged the front door. If that person had been DG or anyone else the appellant would have seen it.
(iii)The appellant had said she was not aware, when she and her companions left for the cinema, that her companions had changed their clothes.
(iv)It was peculiar that four adult supporters of Aryan Nations would watch a children's movie at the cinema.
(v)The appellant and her companions had spent a significant period of time at the Arnos Way property.
(h)On 18 and 30 January 2018, Mr Utting met with the appellant while she was in prison. There was no dispute concerning the forensic evidence. The focus of the trial would be upon the evidence of DG and Ms Dunn.
(i)DG was scheduled to give evidence on Monday, 12 February 2018. He in fact gave evidence on 12, 13 and 14 February 2018. Mr Utting had a long conversation with Lisa Boston, who was the defence counsel representing Mr Edhouse, during the weekend of 10 and 11 February 2018. Ms Boston told Mr Utting that she anticipated that Mr Edhouse would give evidence. Mr Edhouse would say that while the appellant was having a shower, DG killed Mr Taylor. Mr Edhouse tried to prevent the killing. After the killing, the appellant, Mr Edhouse, Mr Dymock and DG engaged in a cover up to protect DG. The house was trashed, the front door was damaged and, to create an alibi, it was decided that they would go to the cinema. On this version of events, the appellant's call to the 000 emergency number was false and she was an accessory after the fact to murder.
(j)On Monday, 12 February 2018 at 9.00 am, Mr Utting and Mr Manera met with the appellant in the detention area of the District Court building. Mr Utting told the appellant what Mr Edhouse would say in evidence. Mr Manera explained to the appellant the dangers of a cut‑throat defence. The appellant said she did not know what to do. Mr Utting told her to think about it. He also told her that he would not fully cross‑examine DG. Mr Utting thought that, if necessary, DG could be recalled for further cross-examination. Mr Utting told the appellant that it would be wise to keep her options open at that stage. The appellant agreed.
(k)On 13, 14 and 21 February and 7 March 2018, Mr Utting had further meetings with the appellant in the detention area of the District Court building. He also spoke to the appellant during the trial when she was brought into court. It took some time before her co‑accused were brought into court.
(l)On 10, 17 and 24 February, 13 March and 30 April 2018, Mr Utting spoke with the appellant while she was in prison.
(m)A topic dealt with in the discussions between Mr Utting and the appellant up to and including 17 February 2018 (which was after DG and Ms Dunn had given their evidence) was whether the appellant would maintain her original instructions or adopt the version of events to be given by Mr Edhouse. Another topic covered in those discussions was her likely punishment if she were convicted as an accessory after the fact.
(n)Ultimately, the appellant decided that she would change her original instructions and accept the version of events to be given by Mr Edhouse. The appellant gave Mr Utting instructions to that effect during a telephone conversation on Saturday, 17 February 2018.
(o)Consistent with the changed instructions and her acceptance that there had been a cover up, the appellant elected not to give evidence. On Wednesday, 21 February 2018, when she was in the dock before court began, she wrote and signed a note to that effect on Mr Utting's letter dated 18 February 2018.
(p)Mr Utting's closing address reflected the changed instructions and the appellant's election not to give evidence. He spoke to her immediately after the closing address and she had no complaint.
(q)On Monday, 16 April 2018, Mr Utting met with the appellant in prison. He asked her whether she had seen letters from Samuel Moyle, Pauline Oldfield and John Oldfield which he had received after she was convicted. The letters attacked Mr Utting's professional competence. The appellant told Mr Utting that she had seen the letters. Mr Utting said that if the appellant shared their opinions about his professional competence, he could not continue to act for her. The appellant replied, 'no, you did everything we agreed'.
(r)Mr Utting made a 'conservative' opening statement at the trial in view of his concerns about the appellant's original instructions.
(s)Mr Utting did not fully cross‑examine DG because of the appellant's indecision regarding Mr Edhouse's proposed evidence. Mr Utting believed that he could have had DG recalled, if necessary, for further cross‑examination.
(t)Mr Utting did not raise the appellant's prior good record with a police witness because, had the appellant given evidence, it would have been open to the prosecutor to cross‑examine her about her involvement with Aryan Nations. Notwithstanding her instructions on 21 February 2018 that she elected not to give evidence, the appellant could have changed her mind. Also, once the appellant had accepted Mr Edhouse's proposed version of events, she was an accessory after the fact and any evidence as to her previous good record would have been nugatory.
(u)Mr Utting's concession in his closing address that the appellant was an accessory after the fact was in accordance with her changed instructions to the effect that she accepted Mr Edhouse's version of events.
Ground 3: Mr Utting's evidence at the hearing of the appeal
Mr Utting gave evidence at the hearing of the appeal, relevantly, as follows.
In evidence in chief, Mr Utting said:
(a)Mr Utting was admitted to practice in 1975. Apart from a period of 6 years in which he was undertaking other work, he has practised as a criminal barrister since that time in trial and appellant courts. He has appeared as defence counsel in more than 12 murder trials (appeal ts 72 – 73).
(b)By the end of Friday, 16 February 2018, it appeared that the State's case at the trial would close sometime the following week. It was therefore important to resolve 'where [the appellant] was going concerning the conflict between her original instructions and what Mr Edhouse was going to say if he gave evidence' (appeal ts 75 – 76).
(c)By 16 February 2018, DG and Ms Dunn had given evidence (appeal ts 76).
(d)The appellant had three options. First, she could maintain her initial instructions and give evidence. Secondly, she could maintain her account of events in her written statement and electronically recorded interview with police and not give evidence. Thirdly, she could adopt what Mr Edhouse was going to say in evidence as being the true version of what had happened. The appellant chose the third option. That is, she adopted what Mr Edhouse was going to say in evidence, namely that DG had killed the deceased, Mr Edhouse had tried to stop DG and subsequently there was a cover up by all of the accused and DG. In view of the appellant's changed instructions, Mr Utting did not cross‑examine Mr Edhouse. The appellant did not want to give evidence contrary to Mr Edhouse's proposed version of events. If the appellant had elected to give evidence in accordance with her original instructions, Mr Utting would have cross‑examined Mr Edhouse and put to him the appellant's original instructions (appeal ts 76 – 77).
(e)At no stage did Mr Utting receive an oral or written complaint from the appellant. In particular, he did not receive a complaint from her about his closing address (appeal ts 78).
(f)Mr Utting had heard the appellant's evidence at the hearing of the appeal. He disagreed with her (appeal ts 78). For example, Mr Utting maintained that he discussed 'fully' with the appellant, Mr Edhouse's proposed evidence (appeal ts 78).
(g)Mr Utting said the appellant was a good client. They got on well. She had his telephone number. She understood the issues. It was her role to make decisions. All he could do, as he told her, was to advise her. But it was her ultimate decision as to where she wanted her case to go. At no stage did the appellant say to him words to the effect that she did not feel free to make a decision (appeal ts 79).
Mr Utting gave this evidence in cross‑examination:
(a)Mr Utting did not open the appellant's case to the jury on the basis that the appellant was an accessory after the fact (appeal ts 79).
(b)That was because her instructions leading up to the trial were that she was not guilty of murder and that she had not been involved in any cover up (appeal ts 79).
(c)The appellant did not say to Mr Utting before the trial that she would be prepared to plead guilty to being an accessory after the fact (appeal ts 79).
(d)The credibility of DG and Ms Dunn was crucial to the appellant's case at trial (appeal ts 80).
(e)Mr Utting was in 'a quandary' because Mr Edhouse's proposed evidence, as relayed to him by Ms Boston, was 'completely different' from the appellant's initial instructions. He therefore cross‑examined DG and Ms Dunn without committing to either version of events (appeal ts 80 – 82).
(f)Mr Utting did not make any contemporaneous notes of his conversation with the appellant during which she changed her instructions (appeal ts 84).
(g)Mr Utting's closing address went 'in a completely different direction' following the changed instructions from the appellant (appeal ts 84).
(h)Mr Utting prepared his letter dated 18 February 2018 without any input from Mr Manera (appeal ts 85).
(i)Mr Utting did not show the letter to the appellant in the body of the court or while she was in the dock with the other co‑accused. Mr Utting showed her the letter when he visited her in the detention area of the District Court on the morning of 21 February 2018. Mr Utting held up the letter so that the appellant could read it. The appellant did not sign the letter in the detention area. She signed it later in the dock (appeal ts 85).
(j)Mr Utting was present when the appellant signed the letter dated 18 February 2018. Mr Manera was not present (appeal ts 86).
(k)Mr Utting did not give the appellant a copy of the letter dated 18 February 2018 either in the detention area before she signed it or immediately after she signed it (appeal ts 86).
(l)Mr Utting believed that the appellant's election not to give evidence was consistent with his advice on that issue. Mr Utting understood that, by signing the letter, the appellant accepted that Mr Utting would not cross‑examine Mr Edhouse (appeal ts 87).
(m)Mr Utting accepted that there was no express statement in the letter dated 18 February 2018 or in the handwritten note on the letter made and signed by the appellant that the appellant wanted Mr Utting to admit that her statement to the police was a lie or that her interview with the police was a lie or that her 000 emergency call was a lie or that she was prepared to accept a verdict of guilty to accessory after the fact. Mr Utting explained that the letter dated 18 February 2018 was 'a stand‑alone document' and he had numerous discussions with the appellant about the dilemma she was facing and as to the ramifications of it. One of those discussions concerned what was involved in being convicted as an accessory after the fact (appeal ts 87).
(n)Mr Utting could not recall telling the appellant that, on the basis of Mr Edhouse's evidence, she would be convicted as an accessory after the fact. However, Mr Utting said he spent a long time explaining to the appellant the issues in the case and she appeared to understand the issues (appeal ts 88).
(o)Mr Utting accepted that the approach he took in his closing address at the trial; that is, admitting that the appellant had lied and admitting that she was an accessory after the fact, was contrary to her instructions prior to the commencement of the trial. However, Mr Utting's position was that the approach taken in his closing address was consistent with the appellant's changed instructions during the trial. Mr Utting agreed that there was no record in writing, either by him or the appellant, of the changed instructions to admit that she had lied to the police and that she was an accessory after the fact (appeal ts 88).
(p)Counsel for the appellant referred to a passage in Mr Utting's closing address where Mr Utting had repeated this passage from the prosecutor's closing address:
Well, [the appellant] is part of a group called Aryan Nation[s] which she claims to be a group striving for equality within Australia, but which in reality is just an affiliation of like‑minded racists and white supremacists with an affinity for Hitler, Nazism and the Third Reich (ts 1559 – 1560).
(q)Mr Utting commented in his closing address that what the prosecutor had said in that passage was 'probably right' (ts 1560). Mr Utting said, in cross‑examination in this appeal, that his reference to that passage from the prosecutor's closing address and his comment upon that passage were 'planned'. There was evidence at the trial that there was a Nazi flag in the bedroom at the Arnos Way property where Mr Taylor was killed. Mr Utting said, in cross‑examination, that one of the 'great difficulties with Mr Edhouse's evidence … was to establish reasons why people bound by common philosophy may agree to do things that would seem strange to other people'. Mr Utting's intention was to 'advocate for a verdict of guilty in relation to accessory after the fact' (appeal ts 91).
(r)Mr Utting reiterated that the appellant had instructed him that she agreed with what Mr Edhouse was going to say and 'that involved a cover up'. The appellant never instructed him that she wanted him to challenge Mr Edhouse where his version of events conflicted with the version she had given to the police (appeal ts 91).
(s)After the trial the appellant did not indicate that she had any concerns about Mr Utting's performance in representing her (appeal ts 91).
(t)Mr Utting was aware that the appellant had no prior criminal record (appeal ts 91).
(u)Mr Utting was not given a draft proof of evidence for Mr Edhouse. He was, however, given a 'very comprehensive' summary of his proposed evidence by Ms Boston (appeal ts 92).
(v)On Wednesday, 14 February 2018, Mr Utting and Mr Manera met with the appellant in the detention area at the District Court. On that occasion, Mr Utting did not suggest to her that she not give evidence on the basis that her version of events was already before the court in her written statement to the police and her electronically recorded interview with police. Rather, Mr Utting told her there were three alternatives, namely that she give evidence in accordance with her original instructions; or that she not give evidence but maintain the version of events she had given to the police; or that she agree with what Mr Edhouse was going to say. During the meeting the appellant did not say she wanted to give evidence in her own defence. She never told Mr Utting that she wanted to give evidence. Mr Utting did not recall Mr Manera saying at the meeting 'if she wants to, let her', meaning let her give evidence. There was no disagreement between Mr Utting and Mr Manera about the best advice to give the appellant. The appellant did not burst into tears at the meeting after Mr Utting gave her advice about Mr Edhouse proposing to give evidence at the trial (appeal ts 93).
Mr Utting gave the following evidence in response to questions from the court:
(a)The court drew Mr Utting's attention to paras 15 and 16 of his affidavit, in which Mr Utting said that he had a long conversation with Ms Boston during the weekend of Saturday, 10 February and Sunday, 11 February 2018, and to para 17 of his affidavit, in which Mr Utting said that at a meeting he and Mr Manera had with the appellant in the detention area of the District Court on Monday, 12 February 2018, Mr Utting told the appellant what Mr Edhouse would say in evidence. The court then drew Mr Utting's attention to his letter dated 18 February 2018 in which Mr Utting said that, as he had discussed with her, Mr Edhouse's proposed evidence (in particular, his proposed evidence as to the cover up) was contrary to her instructions and that Mr Utting would be obliged to cross‑examine Mr Edhouse to put her version of events. The court then drew Mr Utting's attention to paras 20 and 21 of his affidavit in which he said that during a telephone conversation on 17 February 2018 the appellant told him that she would change her original instructions and would accept Mr Edhouse's proposed evidence as to what had happened at the Arnos Way property.
(b)The court indicated to Mr Utting that it appeared from Mr Utting's letter dated 18 February 2018 that as at Sunday 18 February 2018 the appellant's instructions were still to the effect that she had no involvement in the killing or the trashing of the Arnos Way property and that her version of events remained materially different from Mr Edhouse's proposed evidence. However, by contrast, it appeared from paras 20 and 21 of Mr Utting's affidavit that on Saturday, 17 February 2018 the appellant told Mr Utting during a telephone conversation that she would change her original instructions and would accept Mr Edhouse's proposed evidence as to what had happened at the Arnos Way property.
(c)Mr Utting responded that his letter dated 18 February 2018 'could have been more aptly phrased'. However, Mr Utting maintained that, by 18 February 2018, the appellant 'was certainly accepting what Edhouse had to say and then when [Mr Utting] saw her, [he thought] on the morning of 21 February, it was confirmed that that was the way she wanted it to proceed' (appeal ts 96).
(d)Mr Utting said that the conversation he had with the appellant, to which Mr Utting referred in paras 20 and 21 of his affidavit, 'certainly' occurred by the morning of 21 February 2018, when he visited her in the detention area of the District Court. Mr Utting added that 'there were a number of meetings, there were a number of phone calls, there were a number of discussions in court'. It was 'a terribly difficult issue' and 'a very critical issue for [the appellant]'. The change to her instructions 'evolved … until it reached that stage, certainly by 21 February' (appeal ts 96 – 97).
(e)Mr Utting's 'best recollection' was that the appellant wrote the note on his letter dated 18 February 2018, and signed and dated the note, when she was in the dock before court commenced on 21 February 2018 (appeal ts 97).
(f)Mr Utting said that the two key witnesses from the point of view of all of the accused were DG and Ms Dunn. Ultimately, Mr Edhouse and the appellant were running a joint defence (appeal ts 97).
Ground 3: Mr Manera's affidavit
In his affidavit, Mr Manera asserted, relevantly, as follows:
(a)The appellant retained Mr Manera to act on her behalf in relation to the murder charge.
(b)The appellant instructed Mr Manera to brief Mr Utting to act as defence counsel at the trial.
(c)By letter dated 26 September 2017, Mr Manera sent the State brief to the appellant and requested her written instructions.
(d)Mr Manera received a document entitled 'Instructions to My Lawyer' from the appellant (being her written instructions) about the State brief. On 2 November 2017, Mr Manera sent the written instructions to Mr Utting.
(e)Mr Manera recalled attending meetings with the appellant and Mr Utting in the detention area of the District Court on at least two occasions after the trial had commenced. Mr Manera believed that the meetings occurred before DG gave evidence. Mr Manera did not take notes of the meetings.
(f)At those meetings, Mr Utting informed the appellant that he had been told by counsel for Mr Edhouse that Mr Edhouse intended to give evidence at the trial. Mr Utting told the appellant that counsel for Mr Edhouse had said that Mr Edhouse's evidence would be to the effect that the appellant knew that DG had killed Mr Taylor and that the appellant had participated in the cover up of that offending.
(g)Mr Utting also informed the appellant that Mr Edhouse's proposed evidence was inconsistent with the appellant's original instructions. Mr Utting advised the appellant to the effect that if she maintained her original instructions then he would be obliged to put those instructions to Mr Edhouse in cross‑examination. Mr Utting told the appellant that this would create a situation akin to a 'cut‑throat' defence. Mr Utting and Mr Manera explained to the appellant that when two accused give evidence inconsistent with each other this usually results in both of the accused being convicted.
(h)Mr Utting also informed the appellant that there were problems with her original instructions, in the context of the State case, because those instructions failed adequately to explain why the various accused persons had changed their clothes after leaving the Arnos Way property and why they went to see the Jungle Book movie. Mr Utting told the appellant that her original instructions did not adequately explain the evidence in the State case relating to her dogs barking and the damage to the front door of the house.
(i)Mr Utting also informed the appellant that if the evidence at the trial established that she knew that DG had killed Mr Taylor and that she had then participated in the cover up, she would be guilty of being an accessory after the fact to murder. Mr Utting said that the offence of accessory after the fact to murder is 'much less serious' than the offence of murder.
(j)The appellant appeared to understand what she was told by Mr Utting. Mr Manera did not recall the appellant giving instructions to Mr Utting or Mr Manera at the meetings Mr Manera attended.
(k)Mr Manera met with the appellant after the closing addresses of counsel and before the jury's verdict. The appellant did not criticise Mr Utting or the manner in which her defence had been run.
Ground 3: Mr Manera's evidence at the hearing of the appeal
Mr Manera gave evidence at the hearing of the appeal, relevantly, as follows.
In evidence in chief, Mr Manera said:
(a)Mr Manera was admitted to practice in 1987. Since his admission, he has practised primarily in criminal law both as a barrister and a solicitor. In more recent times he has done less advocacy work (appeal ts 99).
(b)Mr Manera said that the meetings he attended with the appellant and Mr Utting in the detention area at the District Court occurred 'early in the trial'. They may have occurred before Mr Edhouse gave evidence (appeal ts 100).
(c)The appellant never criticised to Mr Manera the manner in which her defence was run (appeal ts 100).
(d)The appellant was 'extremely composed at all times in all of the meetings that [Mr Manera] ever had with her'. She never shed a tear. She was very serious and 'appeared to be taking on board what was being discussed'. She always 'appeared to be receptive and communicative' (appeal ts 101 – 102).
Mr Manera gave this evidence in cross‑examination:
(a)Mr Manera's understanding of the appellant's written instructions leading up to the trial were that she was not involved in Mr Taylor's killing or in any cover up of the killing. She never said to Mr Manera before the trial that she would be prepared to plead guilty to being an accessory after the fact. No plea offer to that effect was made (appeal ts 102).
(b)Mr Manera reiterated that he met with the appellant on at least two occasions during the trial in the detention area of the District Court, but he did not recall the specific dates (appeal ts 103).
(c)During one of the meetings Mr Utting told the appellant that it was her decision as to whether she should give evidence. Mr Manera did not recall Mr Utting telling the appellant not to give evidence. Mr Utting did not, while Mr Manera was present, express a view as to whether the appellant should or should not give evidence. Mr Manera did not recall the appellant saying in his presence that she wanted to give evidence. Mr Manera 'certainly did not say' to Mr Utting, in the appellant's presence, words to the effect of 'if she wants to, let her' give evidence. Mr Manera and Mr Utting 'absolutely [did] not' disagree in front of the appellant about whether or not she should be advised to give evidence. Mr Manera 'absolutely' denied that the appellant cried at any point during any of the meetings between the appellant, Mr Utting and Mr Manera (appeal ts 103).
(d)Mr Manera was not involved in the drafting of Mr Utting's letter dated 18 February 2018 (appeal ts 103 – 104).
(e)Mr Manera did not have any conversations with the appellant in which she said that she wanted to change her instructions and put the matter before the jury on the basis that she was an accessory after the fact (appeal ts 104).
(f)Mr Utting and Mr Manera 'certainly discussed' with the appellant, on at least the two occasions he had mentioned, the problems that would arise from Mr Edhouse's proposed evidence if she were to maintain her original instructions. Mr Utting told the appellant, in Mr Manera's presence, to consider her position, having regard to what Mr Utting had said, but 'don't give us a decision right now'. Mr Manera did not recall whether Mr Utting told him that the appellant had in fact changed her instructions and wanted the matter put before the jury on the basis that she was an accessory after the fact (appeal ts 104 – 105).
Mr Manera gave this evidence in response to questions from the court:
(a)Mr Utting told Mr Manera that the appellant had changed her original instructions and that she would accept Mr Edhouse's version of events. Mr Manera elaborated:
I can't be specific in terms of date or a time or what stage of the proceedings it was, but [Mr Utting] certainly said that to me in the context of our discussions with her about … the problems that she would face if she maintained her initial instructions' (appeal ts 106).
(b)Mr Manera did not know whether Mr Utting told him, before the close of the appellant's case, that the appellant had decided to change her original instructions and to accept what Mr Edhouse would say in evidence (appeal ts 106).
(c)What Mr Manera was uncertain about was the timing of when Mr Utting told him about the change of instructions. Mr Manera thought it happened before Mr Edhouse gave evidence, but he could not be '100% sure of that'. However, Mr Utting 'most definitely' told Mr Manera about the change of instructions before the jury retired to consider its verdict (appeal ts 106).
Ground 3: the appellant's submissions
As to particular (a) of ground 3, counsel for the appellant submitted that Mr Utting's opening address was wholly inadequate and of no assistance to the jury in understanding the appellant's case. No concession was made in the opening address as to the appellant being an accessory after the fact. That concession was not made until Mr Utting's closing address and may have been seen by the jury to be 'a last minute position taken in the light of an overwhelming prosecution case against her'. It was submitted that although nothing might turn on particular (a) in isolation, in conjunction with the other allegations in support of ground 3, particular (a) put 'the overall performance of [Mr Utting] in perspective'.
As to particular (b) of ground 3, counsel argued that Mr Utting failed adequately to cross‑examine DG or Ms Dunn in accordance with the appellant's original written instructions or in accordance with the case that Mr Utting ultimately put to the jury in his closing address.
It was submitted that a number of central issues were not put to DG or Ms Dunn, including that:
(a)the appellant was never a party to any plan to kill Mr Taylor;
(b)there was no agreement that DG would be paid anything for killing Mr Taylor;
(c)there was no pre‑arranged plan for the appellant to have a shower and to play loud music to facilitate and conceal the murder;
(d)there was never any plan to trash the house to suggest that a burglary had occurred;
(e)there was nothing untoward about the trip to the cinema; and
(f)the appellant was, at all times after the killing, entirely ignorant of the fact that it had occurred.
Counsel argued that, when Mr Utting cross‑examined DG, Mr Utting had instructions to the effect that each of those central issues were contested by the appellant. It was therefore imperative that DG and Ms Dunn be cross‑examined on them.
As to particular (c) of ground 3, counsel submitted that the appellant was of prior good character and had no previous convictions. Those facts should have been elicited by Mr Utting through cross‑examination of the investigating police officers. There was no forensic danger in the adoption of that course. There were a number of witnesses available who could have attested to the appellant's prior good character. There was no possible forensic advantage in not calling good character evidence.
As to particular (d) of ground 3, counsel argued that Mr Utting's closing address was manifestly inadequate.
Mr Utting's closing address, at the end of a five week trial, occupied 35 minutes. By contrast, the prosecutor addressed for 95 minutes, defence counsel for Mr Edhouse for 181 minutes and defence counsel for Mr Dymock for 111 minutes.
It was contended that Mr Utting should have (but failed to) canvass the following matters in his closing address:
(a)What aspects of the State's case were admitted and what aspects were not.
(b)What findings of fact the jury should make in relation to:
(i)the dubious nature of the evidence which tended to show that the appellant had planned to kill Mr Taylor;
(ii)the appellant's movements on the day in question and the reasons for them;
(iii)the equivocal nature of the shower the appellant had taken and the music she had played while Mr Taylor was killed;
(iv)the cinema alibi and the fact that the visit to the cinema had been pre‑arranged with Mr Taylor;
(v)the inconclusive nature of the evidence relating to the removal of rubbish at Mr Dymock's apartment;
(vi)how and when the appellant became aware of who had killed Mr Taylor;
(vii)the calls made to Mr Taylor's telephone and the call to the emergency services; and
(viii)precisely how and why the appellant was guilty as an accessory after the fact and precisely when she became guilty of that offence.
(c)What, on her case, was the appellant's response to the various issues put against her, particularly her alleged motive to kill Mr Taylor.
(d)The appellant's prior good character and the absence of any previous convictions.
As to particular (e) of ground 3, counsel argued that although the appellant had (on the 13th day of the trial) given written instructions to the effect that she did not wish to give evidence and did not require Mr Edhouse to be cross‑examined, those instructions did not extend to abandoning 'her long standing position as expressed in her written statement and her record of interview with the police that she was not complicit in the murder itself, trashing the house, creating an alibi nor to concede that she was an accessory after the fact'. By conceding in his closing address that the appellant had lied to the police, with a view to assisting in the concealment of the killing, Mr Utting acted contrary to the appellant's express instructions.
As to particular (f) of ground 3, counsel submitted that Mr Utting should have requested the trial judge to redirect the jury so as to put before the jury a more expansive and complete summary of the appellant's case. Also, it was submitted that Mr Utting should have sought directions from the trial judge warning the jury in relation to the prosecutor's remarks the subject of ground 2 of the appeal.
It was submitted that Mr Utting's actions and omissions, about which the appellant complains in ground 3, went beyond the scope of legitimate forensic decisions that were reasonably open to him, and occasioned an unfair trial and a miscarriage of justice.
Ground 3: the State's submissions
As to particulars (a), (b), (c), (d) and (f) of ground 3, counsel for the State submitted that the appellant had failed to discharge the heavy burden of demonstrating that Mr Utting's conduct of her case at the trial caused a miscarriage of justice. The forensic decisions complained about by the appellant were reasonable. Those decisions were capable of explanation on the basis that they were taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. In any event, there was no significant possibility that any of the forensic choices made by Mr Utting affected the outcome of the trial.
As to particular (e) of ground 3, counsel submitted that this court should accept the evidence of Mr Utting and Mr Manera and reject the appellant's version of events. The appellant's instructions to Mr Utting changed during the trial. In particular, the appellant decided to change her original instructions by accepting Mr Edhouse's version of events. The effect of the appellant's changed instructions was that, for the purposes of Mr Utting's pending closing address, she was an accessory after the fact to murder.
Ground 3: the applicable legal principles
In McMahon v The State of Western Australia,[11] McLure P (with whom I agreed) summarised the law relating to a ground of appeal which alleges a miscarriage of justice by reason of defence counsel's conduct of the defence case, as follows:
The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused 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 involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] ‑ [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre‑suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross‑examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].
In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen (2005) 79 ALJR 662 [18] (Hayne J).
The test of whether there is a material irregularity is objective: TKWJ [17], [27] ‑ [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).
[11] McMahon v The State of Western Australia [2010] WASCA 143 [24] – [27].
In Colley v The State of Western Australia,[12] McLure P referred to the extract which I have reproduced from her Honour's reasons in McMahon and then said:
The appellant's claims in this case fall within the 'process' category. That is, the appellant claims he was deprived of a fair trial according to law.
As is clear from the use of the word 'ordinarily' in the first paragraph of the extract, it is a general rule that an accused is bound by the way a trial is conducted by counsel. In particular, not all decisions made by counsel contrary to instructions will bind the accused. The point is made clearly by Gleeson CJ in Nudd v The Queen:
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 [9]. (emphasis added)
For example if, as the appellant says in this case, he instructed trial counsel not to defend the charge on the basis of self‑defence because he (the appellant) did not at any stage hit the deceased, to do so would be outside the scope of any implied power in the retainer to make decisions on behalf of the appellant.
Moreover, it is outside the scope of any implied retainer for trial counsel to conduct a positive defence that is inconsistent with the accused's instructions as to what had actually occurred. A 'positive defence' includes cross‑examination of witnesses for the prosecution suggesting, expressly or impliedly, that counsel is putting his or her client's instructions as to relevant factual matters.
It is unnecessary to determine whether trial counsel may, with the client's consent, put in cross‑examination a positive defence that is inconsistent with his or her client's instructions as to what actually occurred. Even if permissible, the client would have to be informed by trial counsel that he or she could not lead evidence from the accused that was inconsistent with his or her instructions as to what actually occurred. That is, prior to the cross‑examination the client would have to elect not to give evidence at trial. In that way there would be no breach of the first aspect of the rule in Browne v Dunn (Browne v Dunn (1893) 6 R 67 HL). As to which, see Merrey v The State of Western Australia.
[12] Colley v The State of Western Australia [2015] WASCA 79 [29] – [33].
The trial judge did not err by failing to direct the jury in relation to the impugned comments. The absence of any such direction did not give rise to a miscarriage of justice.
Ground 2 fails.
Ground 4
Ground 4 asserts, in effect, that the combination of errors or miscarriages alleged in grounds 1, 2 and 3 establish, in combination, that a miscarriage of justice occurred at the trial.
None of grounds 1, 2 and 3 has been made out.
The aggregation of the appellant's unmeritorious complaints in grounds 1, 2 and 3 does not establish that there was a miscarriage of justice at the trial.
Ground 4 is without merit.
Conclusion
I would grant the appellant's application in the appeal dated 7 August 2018 for leave to adduce additional evidence in the appeal.
I would also grant the State's applications in the appeal dated 1 April 2019 and 2 August 2019 for leave to adduce additional evidence in the appeal.
However, none of the grounds of appeal has been made out. Leave to appeal should be refused on each ground. The appeal must be dismissed.
MAZZA JA:
I agree with Buss P and Beech JA that none of the grounds of appeal have been made out and that this appeal against conviction must be dismissed. I agree with the orders proposed by Buss P.
I agree with Buss P's reasons in respect of grounds 1, 2 and 4.
As to ground 3, I agree with Buss P's and Beech JA's findings of fact and their reasons for dismissing the ground. I add the following observations. I do so in the context of Buss P's comprehensive summary of the evidence adduced at trial and put before this court.
Ground 3 alleges that the appellant suffered a miscarriage of justice because her trial counsel, Mr Utting, '[failed] to adequately and
competently conduct the [the appellant's] defence at the trial'.[17] This allegation is supported by the six particulars set out at [30] of Buss P's reasons.
[17] WAB 104.
As particularised, the ground assumes that the appellant, at all times, maintained the position that she articulated in the written instructions she gave to her lawyer prior to trial. Those instructions were to the effect that she played no part in Mr Taylor's killing or its cover‑up.
As senior counsel for the appellant accepted in his oral submissions to this court, the ground cannot succeed if, during the trial, the appellant changed her instructions to adopt Mr Edhouse's case and not give sworn evidence.[18] I accept Mr Utting's evidence to the effect that the appellant changed her instructions and agreed to adopt Mr Edhouse's case and not give sworn evidence. Further, I accept that she instructed Mr Utting not to cross‑examine Mr Edhouse.
[18] Appeal ts 114.
Mr Utting's unchallenged evidence was that, over the weekend of 10 and 11 February 2018, he had a long conversation with Mr Edhouse's counsel, Ms Lisa Boston. There is no dispute that Ms Boston told Mr Utting that:
(1)she anticipated that Mr Edhouse would give evidence;
(2)Mr Edhouse's testimony would be to the effect that, while the appellant was having a shower, BG killed Mr Taylor; and
(3)Mr Edhouse would say that, in order to protect BG, all accused present at the Arnos Way house (including the appellant) participated in a cover‑up of the killing by trashing the house, damaging the front door and agreeing to give a false alibi.
The appellant does not dispute that on the morning of Monday, 12 February 2018, prior to the commencement of the day's proceedings, Mr Utting and Mr Manera visited her in the detention area at the District Court building where the trial was being conducted. In her examination‑in‑chief before this court, the appellant accepted that she was told that Mr Edhouse was going to give evidence. However, she said that she 'was not told of the content of what he was going to say on the stand'.[19] This conflicted with the evidence of Mr Utting and Mr Manera, each of whom testified to the effect that the appellant was informed, not only of Mr Edhouse's intention to give evidence, but also of what he was expected to say. I reject the appellant's evidence that she was not told of the content of Mr Edhouse's evidence.
[19] Appeal ts 34.
In my opinion, it is inherently unlikely that defence counsel, armed with new information that a co‑accused was going to give evidence and the content of that evidence, would only inform their client of the former and not the latter. This is particularly so where (as in the present case) the co‑accused's evidence conflicted, in substantial respects, with the client's instructions. Moreover, in the present case, it would make no sense for the appellant, having been told by Mr Utting that Mr Edhouse would give evidence, not to have inquired about the content of that evidence.
Mr Utting's testimony that he told the appellant of the content of Mr Edhouse's evidence is supported by his letter to the appellant, dated 18 February 2018, which begins by confirming the discussion he had with the appellant concerning the content of Mr Edhouse's evidence:[20]
As I have discussed with you, it appears Robert Edhouse intends to give evidence. He will say that [BG] killed [Mr Taylor]. There was no plan. What happened after that was a cover‑up. That explains the trashing of the house, the changing of the clothes and the damage to the front door. (emphasis added).
[20] WAB 78.
Mr Edhouse's decision to give evidence and the anticipated content of that evidence was plainly a matter of importance for the appellant and the conduct of her case because, although the two versions were consistent in that each denied that the appellant was responsible for Mr Taylor's killing, they conflicted as to the appellant's involvement in the cover‑up. As would be expected from competent counsel, Mr Utting gave the appellant advice as to the options that were open to her in light of this development. Mr Utting identified three options that were open to her. Those options are set out in Buss P's reasons at [90(d)].[21] In my opinion, each was a reasonable forensic choice.
[21] See also appeal ts 76 - 77.
The third option suggested by Mr Utting involved the appellant adopting Mr Edhouse's account of events as her case. Acceptance of this option obviated the need for Mr Edhouse to be cross‑examined by Mr Utting and for the appellant to give evidence. Mr Edhouse's case, which attributed the killing to DG, was also, by implication at least, consistent with the written instructions that the appellant gave her lawyer. The downside to adopting Mr Edhouse's account of events was that it would, in all likelihood, result in the appellant being convicted of being an accessory after the fact. This consideration needed to be balanced with the consideration that, having regard to her conduct after the killing, particularly her attendance with the co‑accused at the cinema and, notwithstanding her claims to the contrary, the case against the appellant on the alternative offence of being an accessory after the fact was already very strong.
If the appellant decided to give evidence according to the instructions that she gave her lawyers prior to the trial, Mr Utting would have been obliged to cross‑examine Mr Edhouse and call the appellant to give evidence, giving rise to a 'cut‑throat' defence, as to the alternative offence. As the appellant understood from the advice given to her by Mr Utting and Mr Manera, there were forensic risks in taking that approach.
In paragraph 4 of the appellant's affidavit, the appellant stated that at the conclusion of the prosecution case she agreed not to give evidence and that Mr Edhouse should not be cross‑examined. As if to emphasise this point, she repeated it again at paragraph 9 of her affidavit. In light of these paragraphs, the appellant's evidence in this court[22] that she did not instruct Mr Utting not to cross‑examine Mr Edhouse cannot be accepted.
[22] Appeal ts 37 - 38.
An agreement that Mr Edhouse not be cross‑examined is plainly consistent with a decision on the appellant's part to adopt Mr Edhouse's account of events. Adopting Mr Edhouse's account of events forensically justified her choice, made in writing on 21 February 2018, not to testify in her defence. Thus, the instructions that the appellant admits she gave to Mr Utting strongly support the evidence given by Mr Utting that she changed her case. It is significant that Mr Utting, in substance, told the trial judge that there had been a change in the appellant's case when, in the absence of the jury, he confirmed that he did not intend to put the version of events the appellant had given to the police to the jury as the truth.[23]
[23] ts 1270 - 1271.
The appellant's dissatisfaction with the conduct of her defence at trial was not articulated until after she was sentenced. I accept Mr Utting's evidence that, prior to the appellant being sentenced, he met with her and specifically raised whether she had concerns about the way in which he had conducted her trial. I also accept his evidence that the appellant told him that she did not have concerns and that he had conducted the trial as agreed. This conversation further reinforces the case that the appellant changed her instructions during the trial.
Undoubtedly, the appellant, with the benefit of hindsight, now wishes her trial had been conducted in accordance with her initial instructions. How such an approach would have played out cannot be predicted. In the end, I am satisfied that her defence was conducted in accordance with her changed instructions. Accordingly, having regard to the facts and circumstances of this case, there is no miscarriage of justice as alleged in ground 3.
BEECH JA:
Introduction
The appellant appeals against her conviction of murder. The background, the parties' cases at trial, the grounds of appeal, the evidence of the appellant, Mr Utting and Mr Manera, and the parties' submissions on appeal are outlined in Buss P's reasons at [2] ‑ [110].
The appellant's primary contention is that the conduct of her defence at trial by her counsel gave rise to a miscarriage of justice. The essence of her case on appeal is that her counsel at trial acted contrary to her instructions to him. This court heard conflicting evidence from the appellant, on one hand, and from her solicitor, Mr Manera, and counsel, Mr Utting, on the other hand, as to what passed between the appellant and her legal representatives. Mindful that the conflicting evidence on appeal would require the making of findings of fact influenced by the court's impression of the witnesses, in the immediate aftermath of the hearing of the appeal I prepared detailed notes as to my findings of fact and impressions of the witnesses.
I set out below my findings of fact and my reasons for concluding that ground 3 fails.
Findings of fact: why ground 3 fails
Background
The appellant gave a statement to the police that was tendered in evidence. The substance of the statement is outlined in Buss P's reasons at [35]. Subsequently, the appellant took part in a visually recorded interview which was to substantially similar effect. Both were led as part of the State case at trial. In effect, in her statement and in her interview, the appellant asserted that an unknown intruder had killed Mr Taylor while she, Mr Edhouse, Mr Dymock and DG had been at the cinema.
Prior to trial, the appellant provided written instructions in relation to the prosecution brief to Mr Manera, who forwarded a copy to Mr Utting. The substance of the written instructions is outlined in Buss P's reasons at [76] ‑ [80]. In those notes, the appellant again stated that she had nothing to do with the murder and no involvement in the aftermath. However, what she said in the notes was materially different from what she had told the police. In particular, she plainly implied that DG committed the murder while the other three of them were waiting for him in the car. Ultimately, the appellant accepted on appeal that that was the effect of her notes.[24]
[24] Appeal ts 66.
The trial commenced on Thursday, 8 February 2018.
The meeting of 12 February 2018
On the weekend of 10 and 11 February 2018, Mr Utting spoke at length with Ms Boston, counsel for the co‑accused Mr Edhouse. Ms Boston said that it was anticipated that Mr Edhouse would give evidence. She said he would say, in effect, as follows. While the appellant was having a shower, DG killed the deceased. Mr Edhouse tried to prevent it. After that, all four of those present engaged in a cover‑up in order to protect DG. They trashed the house, damaged the front door and agreed, as an alibi, to go to the movies.
At about 9.00 am on Monday, 12 February 2018, Mr Manera and Mr Utting spoke with the appellant while she was in custody at the District Court. The appellant accepts that Mr Utting told her that Mr Edhouse would give evidence. She denies that Mr Utting told her anything as to what Mr Edhouse would say.[25] I accept the evidence of Mr Utting[26] and Mr Manera[27] that Mr Utting outlined what Mr Edhouse would say. To have done so accords with common sense and the objective probabilities.
[25] Appeal ts 34, 42 - 43.
[26] Affidavit of Richard McKinnell Utting affirmed 1 April 2019 (Mr Utting's affidavit) [16] ‑ [17]; appeal ts 74, 78.
[27] Affidavit of David Charles Manera sworn 2 August 2019 (Mr Manera's affidavit) [7].
Mr Utting told the appellant of the effect of what Mr Edhouse would say. He pointed out that what Mr Edhouse would say was directly inconsistent with the version of events that she had given to the police. Both Mr Utting and Mr Manera said, in effect, that it was generally undesirable for two or more accused in a criminal trial to be contradicting each other, referring to this as a cut-throat defence. One or both of them said, in effect, that such a situation usually resulted in both accused being convicted.[28]
[28] Mr Utting's affidavit [17]; Mr Manera's affidavit [8].
Mr Utting outlined to the appellant that she had three options. She could:
(1)maintain her original instructions and give evidence;
(2)maintain her original instructions and not give evidence; or
(3)adopt Mr Edhouse's position and not give evidence.
The appellant asked Mr Utting what she should do. He said that he could not tell her what to do and that she must make a decision.[29]
[29] Appeal ts 74, 93.
DG was due to give evidence that day. Mr Utting suggested that he not fully cross‑examine DG pending the appellant determining her position. She agreed with his suggestion that she keep her options open.[30]
[30] Mr Utting's affidavit [17]; appeal ts 74, 105.
To the extent it differs from the above, I do not accept the appellant's account of this meeting. In particular, I do not accept that Mr Manera and Mr Utting had a 'bit of an argument because [Mr] Manera said "if she wants to take the stand, let her"'[31]. Both Mr Manera and Mr Utting unequivocally rejected the suggestion that such an exchange had occurred.[32] I accept their evidence.
Further discussions in the course of the trial
[31] Appeal ts 41.
[32] Appeal ts 93, 103.
Consistently with the discussion at [229] ‑ [230] above, Mr Utting did not put either version (the appellant's original instructions or instructions based on Mr Edhouse's anticipated position) to DG or to Ms Dunn.[33]
[33] Appeal ts 81 - 82. The trial transcript of the cross‑examination of these witnesses also indicates that this is so.
There were ongoing discussions between the appellant and Mr Utting, some of which involved Mr Manera, as to whether the appellant's position at trial would reflect her original instructions or would adopt the position advanced by Mr Edhouse in his evidence.[34] In the course of those discussions, Mr Utting told the appellant that, on Mr Edhouse's version of events, she was guilty of being an accessory after the fact and they discussed her likely punishment for that offence.[35]
[34] Mr Utting's affidavit [18]; appeal ts 87, 97.
[35] Appeal ts 87 - 88; see also Mr Manera's affidavit [10].
By the end of Friday, 16 February 2018, it appeared that the State's case would close during the following week. Mr Utting therefore considered it important to resolve what Ms Attwood's position was concerning the conflict between her original instructions and what Mr Edhouse was going to say if he gave evidence.[36]
Mr Utting's letter dated 18 February 2018
[36] Appeal ts 75 - 76.
On Sunday, 18 February 2018, Mr Utting prepared a letter to the appellant in the following terms:
As I have discussed with you, it appears [that Mr Edhouse] intends to give evidence. He will say that [DG] killed [Mr Taylor]. There was no plan. What happened after that was a cover up. That explains the trashing of the house, the changing of clothes and the damage to the front door.
It also dilutes [Ms Dunn's] evidence.
The cover up is contrary to your instructions. Your version of events will be given by the prosecution. Your [written statement dated 23 April 2016 to police] is already in evidence and they will play the [electronically recorded] interview.
The problem is, if you give evidence, you will have to deny the cover up. This will make [Mr Edhouse] look like a liar and be detrimental to the cases of all accused.
It is completely a matter for you as to whether you give evidence or not. If you give evidence, I will be obliged to cross‑examine [Mr Edhouse] to put your version of events.
If his evidence creates a reasonable doubt in the minds of the jury, then you will be acquitted of murder. A conviction of accessory after the fact does not carry mandatory life imprisonment.
My advice to you is that you do not give evidence. It will not improve your position. As I stressed, it is a decision that you alone have to make.
I accept Mr Utting's evidence that he first showed the letter to the appellant in the cells at the District Court, prior to the hearing resuming, on 21 February 2018.[37]
[37] Appeal ts 85.
While the appellant was in the dock, before the trial resumed, Mr Utting spoke again with her. The appellant wrote on the letter that she elected not to give evidence in her case. She signed and dated the letter 21 February 2018. I accept Mr Utting's evidence as to these matters.[38]
[38] Appeal ts 85 - 86.
At this stage, the State case had not been completed.
The terms of the indictment meant that the appellant would be called upon to make her election prior to Mr Edhouse. Thus, if she gave evidence, her evidence would be given before Mr Edhouse. In that framework, the letter stated that if the appellant gave evidence, Mr Utting would be obliged to cross‑examine Mr Edhouse to put her version of events.
The letter is evidently written on an understanding that, if the appellant were to give evidence, her evidence would have been substantially to the effect of her statement to the police.
The appellant's agreement that Mr Edhouse not be cross‑examined and the consequences of that agreement
According to Mr Utting's evidence, one of the options he had identified to the appellant was for her to maintain her original instructions, while not giving evidence. Thus, the election not to give evidence did not, of itself, determine whether she would advance a defence case based upon her original instructions, or advance a defence case based upon the version of events in Mr Edhouse's evidence.
However, as Mr Utting had explained to the appellant, and as the appellant's counsel on appeal properly accepted,[39] a defence case based upon her police statement and her original instructions would have required cross‑examination of Mr Edhouse, because the two versions were in conflict in significant respects.
[39] Appeal ts 126, 129.
In her affidavit, the appellant stated that at the conclusion of the prosecution case she agreed with her counsel's suggestion 'that I not give evidence and that the witness [Mr] Edhouse not be cross‑examined'.[40] Moreover, later in her affidavit, she stated that in the letter of 21 February 2018 she was agreeing to nothing more than 'not testifying at the trial and agreeing that [Mr] Edhouse not be cross‑examined'.[41]
[40] Affidavit of Melony Jane Attwood sworn 4 August 2018 (appellant's affidavit) [4].
[41] Appellant's affidavit [9].
Thus, on the appellant's own affidavit, she agreed with her counsel that Mr Edhouse not be cross‑examined. In substance, that involves an acceptance of his version of events, as the appellant's counsel on appeal accepts.[42] That in turn reflects and reveals a choice to adopt Mr Edhouse's version, and to abandon the fundamentally inconsistent version in each of the appellant's statement to the police and her original instructions. On Mr Edhouse's version of events, there could be no doubt that the appellant was guilty of the charge of being an accessory after the fact. Again, on appeal the appellant's counsel properly accepted that this was so.[43]
[42] Appeal ts 119.
[43] Appeal ts 119, 121 - 122.
In her oral evidence, the appellant sought to qualify her affidavit evidence that she had agreed that Mr Edhouse not be cross‑examined. In oral evidence she said, in effect, that she agreed, or expected, that he would not be fully cross‑examined, but that his 'lie[s] about [her]' would be confronted.[44] She said she was shocked when Mr Utting did not cross‑examine Mr Edhouse.[45] There is, to say the least, room for doubting whether, at the relevant time, that was the appellant's understanding. In any event, what is significant is the objective effect of what passed between the appellant and her lawyers. Whatever the appellant's objective expectations were, there is no evidence and no suggestion that she instructed her lawyers that Mr Edhouse was to be cross‑examined, not fully, but so far as what he said was materially inconsistent with the version of events she advanced in her written statement and original instructions.
[44] Appeal ts 37 - 38, 39, 62 - 63, 67 - 68.
[45] Appeal ts 39.
In my opinion, there can be no doubt that the appellant instructed Mr Utting that Mr Edhouse not be cross‑examined. As I have said, in substance, such instructions involve an acceptance of Mr Edhouse's version of events, and the abandonment of the version of events advanced in the appellant's statement to police. Further, as already noted at [244] above, acceptance of Mr Edhouse's version necessarily involves acceptance of guilt of the offence of accessory after the fact. These conclusions are, in themselves, fatal to ground 3. The ground fails on the further basis of my factual findings below.
The appellant's instruction to Mr Utting that her case would not rely on her original instructions, but would adopt Mr Edhouse's evidence
It is a critical element of the appellant's case on appeal that throughout the trial her defence relied on what was asserted in her statement to the police.[46]
[46] See, for example, appellant's affidavit [5] ‑ [8]; appeal ts 39; appellant's submissions [18], [21], [29], [47](d) ‑ (f), [61]; appeal ts 118.
However, on the appellant's evidence, at no point after her meeting with Mr Utting and Mr Manera on 12 February 2018 did she give positive instructions that she wished to maintain the position in her statement to the police and her written instructions prior to trial. In my view, that is telling. The situation had given rise to the dilemma explained by Mr Utting and elaborated by Buss P at [130]. A resolution was required. It is inherently unlikely that, having raised the issue and identified the options, Mr Utting would have been content to continue the trial to completion without ever being instructed by the appellant as to how she wished to proceed.
Those circumstances support Mr Utting's evidence[47] that, by the time the appellant signed her election not to give evidence on 21 February 2018, she had given instructions to the effect that her case at trial would not rely on her original instructions, but would adopt Mr Edhouse's evidence. I so find. That finding is also supported by Mr Manera's evidence, which I accept, that, at some time before the jury retired, Mr Utting told him that the appellant's instructions were to proceed on the basis of what Mr Edhouse had said.[48]
[47] Appeal ts 96 - 97.
[48] Appeal ts 106.
Subsequent events in the trial and in the lead-up to sentencing support my finding that, by 21 February 2018, the appellant had changed her instructions such that her case would not rely on her original instructions, but instead adopt Mr Edhouse's position. The State closed its case on Monday, 26 February 2018. The trial judge first called upon Mr Utting, enquiring as to the appellant's election. Mr Utting advised that the appellant elected neither to give nor adduce evidence.[49] The same position was adopted on behalf of Mr Dymock.[50] Counsel for Mr Edhouse announced his election to give evidence. He was then called to give evidence.
[49] ts 1174.
[50] ts 1174.
After Mr Edhouse's evidence‑in‑chief had concluded, Mr Utting stated that he had no questions.[51] Following this, during a break in Mr Edhouse's evidence, in the absence of the jury, the judge said to Mr Utting that she understood from the way he had conducted the case that he did not intend to put to the jury that the version of events in the appellant's statement to the police was the truth.[52] Mr Utting replied that he was going to adopt a different approach, which was to concentrate on the evidence of DG and Ms Dunn. The judge observed that if Mr Utting were intending to say to the jury that they should rely on the version of events that had been given to the police, that version should have been put to Mr Edhouse. Mr Utting responded that he appreciated that. In the circumstances, it must then have been obvious to everyone, including the appellant, that in closing Mr Utting would not rely on the version of events the appellant gave in her police statement. The appellant's evidence that, at the time, she took this exchange to mean that Mr Utting would cross‑examine Mr Edhouse[53] makes no sense and cannot be accepted. By then, Mr Utting had already declined to cross‑examine Mr Edhouse.
[51] ts 1261.
[52] ts 1270 - 1271.
[53] Appeal ts 53 - 54, 63.
In all these circumstances, while the appellant may well have come to now believe in the version of events she advanced in her evidence to this court, I do not accept her evidence that her counsel's concession in his closing address - that she had lied to the police and covered up the offence - was a complete shock to her.[54] As she accepts,[55] she did not raise any concern, much less complain, to Mr Utting or to Mr Manera at any time between when Mr Utting addressed the jury on Friday, 2 March 2018, and when the jury returned their verdict on Monday, 12 March 2018.
[54] Appellant's affidavit [10]; appeal ts 40, 52.
[55] Appeal ts 43 - 44, 48.
Moreover, when, in the course of preparing for sentencing submissions, Mr Utting received emails from supporters of the appellant calling into question the manner in which he had conducted the trial, Mr Utting informed Mr Manera that he would need to meet with the appellant to ascertain whether she shared those views.[56] Mr Utting observed that, if she did, he could not continue to act in the sentencing proceedings.[57] I accept Mr Utting's evidence that he then met with the appellant, and raised the question with her. I also accept his evidence that she said, in substance, that she had no concerns as to Mr Utting's conduct of the trial and that he had done what had been agreed.[58] That evidence is supported by the fact that Mr Utting continued to act for the appellant thereafter in the sentencing proceedings.
Why ground 3 fails: summary
[56] Mr Utting's affidavit [27] - [32], annexure H; appeal ts 78, 101.
[57] Mr Utting's affidavit [32], annexure H.
[58] Mr Utting's affidavit [33]; appeal ts 78, 91.
The finding in [249] above means that the essential element of the appellant's case on appeal, identified in [247] above, is not established. The appellant's counsel accepted, correctly in my view, that this finding is fatal to ground 3.[59] Ground 3 also fails for the reasons in [246] above. Further, I agree with Buss P's reasons at [153] ‑ [163].
[59] Appeal ts 111 - 112, 113 - 114.
Ground 1
Counsel also properly accepted that the finding of fact at [249] above is fatal to ground 1.[60] I agree with Buss P's reasons at [176] ‑ [181]. Further and in any event, even if I had made factual findings in accordance with the appellant's evidence, I would not have upheld ground 1. Whether a trial judge discharges the duty to fairly and accurately put the defence case is to be tested by reference to the case put by counsel for the accused, not by reference to a case intended by the accused but not articulated by counsel. Any miscarriage arising from failure by counsel to properly articulate the case intended by the accused falls under the rubric of ground 3, not ground 1.
[60] Appeal ts 133.
Grounds 2 and 4
I agree with Buss P, for the reasons that he gives, that grounds 2 and 4 fail.
Orders
I agree with the orders proposed by Buss P.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JM
Research Associate to the Honourable Justice Buss9 APRIL 2020
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