BJH v The State of Western Australia

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BJH -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 4

CORAM: McLURE P
BUSS JA
MAZZA J

HEARD: 15 SEPTEMBER 2010

DELIVERED : 24 SEPTEMBER 2010

PUBLISHED : 11 JANUARY 2011

FILE NO/S: CACR 32 of 2010

BETWEEN: BJH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram  :REYNOLDS P
File No  :CC 3357-3359 of 2009

Catchwords:

Criminal law - Appeal against conviction - Whether a miscarriage of justice occurred as a result of the incompetence of trial counsel

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code (WA), s 29

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A J Maughan
Respondent: Mr J A Scholz

Solicitors:

Appellant: Andrew Maughan & Associates
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503
McMahon v The State of Western Australia [2010] WASCA 143
R v Birks (1990) 19 NSWLR 677
R v Taufahema [2007] HCA 11; (2007) 228 CLR 232
Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

McLURE P: I agree with the judgment of Mazza J. I propose to make some additional comments on particulars (ii) and (iii) of the ground of appeal. Those particulars are purportedly supported by pars 27 ‑ 32 of the affidavit of the complainant's father, MM. It should be noted that MM:
(a)does not swear to the correctness of, or the basis for, the alleged statement he made to Mr B (and denied by him) that the complainant's mother often made her lie about the appellant;
(b)does not state in clear, unambiguous terms (as is evident from Mr B's response) that he told Mr B of the matters in pars 30 ‑ 32 of his affidavit;
(c)uses his own words to summarise the complainant's conduct on which the appellant now relies; and
(d)does not challenge the correctness of Mr B's evidence that notwithstanding what the complainant said to him, he (MM) believed something had happened between the complainant and the appellant.
In the circumstances, it is appropriate to rely on the accuracy of Mr B's recollection of what he was told by MM.
I agree with Mazza J that Mr B's omission to cross‑examine the complainant about what she had told her father (and as a necessary consequence, not adduce the evidence from him) is not a material irregularity. It was an objectively reasonable forensic decision in light of the defence case put to the complainant in cross‑examination. One important aspect of the defence case was that the complainant's out of court complaints to her mother and, on an earlier occasion, to her grandmother about what had happened between her and the appellant were examples of the complainant playing the game of 'opposites'; alternatively, it was impossible to know whether the complainant was intending to state what had happened or what had not happened and for her to subsequently distinguish between what was fact and fiction.
The defence case based on the complainant engaging in the game of opposites dovetailed with the vagueness of the complainant's evidence on at least one of the counts and the affirmative defence case sworn to by MM that the complainant was wrong about the existence of a fence and the type and colour of a chair she described at the scene of the offences.

In contrast, a defence case that depended upon the credibility of an alleged out of court statement made by the complainant to MM would not sit comfortably with the 'opposites' line of defence which depended upon the unreliability of her out of court statements.
Moreover, it was tolerably clear that the complainant would deny making the statements attributed to her by MM, she having said that she had not spoken to her dad about the things that the appellant had done (ts 28). There being no room for mistaken recollection on that subject, the proposed cross‑examination carried the risk of undermining the credibility of MM generally in the eyes of the jury. Indeed, counsel had already made one unsuccessful attempt to elicit evidence from the complainant that she had on an earlier occasion admitted to her father that she had lied to her grandmother about something that had happened between her and the appellant (ts 22 ‑ 23).
Further, I agree with Mazza J for the reasons he gives that MM's affidavit falls well short of providing sufficiently comprehensive and cogent evidence such as to cast doubt on the correctness of the verdicts. That is particularly so when regard is had to the complainant's very tender years, her father's relationship with the appellant's mother, the game of 'opposites' relied on by the defence to undermine the complainant's credibility and MM's assessment that, notwithstanding the complainant's 'admission' to him, something had happened between the complainant and the appellant.
BUSS JA: The appellant was tried in the Children's Court on 9 and 10 February 2010, before Judge Reynolds sitting alone, on three sex‑related counts against a girl, CJM.
The trial judge convicted the appellant on one count of indecently dealing with CJM and one count of sexually penetrating her. His Honour acquitted the appellant on another count of sexually penetrating CJM.
The offending comprised a single episode which occurred on a date between 11 March 2008 and 11 December 2008, when the appellant was aged 13 and CJM was aged 5.
The appellant appealed to this court against his conviction.
On 15 September 2010, the appeal was heard. On 24 September 2010, leave to appeal was refused and the appeal was dismissed. We said that reasons for our decision would be published later. These are my reasons.

The material facts and circumstances are set out in the reasons of Mazza J. I will not repeat them except to the extent necessary to explain these reasons.

The witnesses called at the trial

At the trial, the prosecution called evidence from CJM, CJM's mother (JMG) and a police officer involved in the investigation.
The appellant did not give evidence. His counsel called only one witness, namely, CJM's father (MM).
At all material times, MM was in a relationship with the appellant's mother, KM.

The ground of appeal

The sole ground of appeal complains about advice given to the appellant by his trial counsel and about his counsel's conduct of the defence at trial.
The particulars of the ground of appeal read:
i)Failure to properly advise the Appellant of the consequences of not giving evidence.
ii)Failure by Counsel to cross-examine the Complainant as to her fabrication of the allegations.
iii)Failure of Counsel to examine‑in‑chief defence witness [MM], the Complainant's father regarding the suggestion that the Complainant told him that she had been told by her mother to make up the allegations.

Tactical decisions by defence counsel at a criminal trial

The Australian criminal justice system involves a contest between the State or the Crown and the accused. In general, the accused is bound by the conduct of his or her counsel. The accused's counsel has a broad discretion in the conduct of the defence. As Gleeson CJ (McInerney J agreeing) noted in R v Birks (1990) 19 NSWLR 677:
Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case (683).
See also TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8] (Gleeson CJ); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [168] (Kirby J).
An apparently rational decision made by the accused's counsel in the course of the trial will not result in an unfair trial or a miscarriage of justice merely because it may appear then or later on appeal that the decision was not carefully considered, was unwise, or produced consequences which operated to the disadvantage of the accused. See TKWJ, where Gleeson CJ explained:
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. In the present case, the decision not to adduce character evidence was made for an obvious reason: to avoid the risk that the prosecution might lead evidence from K.
Trial counsel made a decision not to call certain evidence. Viewed objectively, it was a rational tactical decision, made in order to avoid a forensic risk. It did not make the trial unfair, or produce a miscarriage of justice [16] ‑ [17].
See also Stanoevski v The Queen [2001] HCA 4; (2001) 202 CLR 115 [21] (Gaudron, Kirby & Callinan JJ); TKWJ [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).
An appellate court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage. Rather, the appellate court is concerned only with whether counsel's decision is capable of explanation on that basis. That is, could there be any reasonable explanation for the decision? The test is objective in character. See TKWJ [17] (Gleeson CJ), [27] (Gaudron J, Gummow J agreeing), [95] (McHugh J), [107] (Hayne J, Gummow J agreeing).

The merits of the ground of appeal

In my opinion, the ground of appeal did not have any reasonable prospect of success.
The material before this court in the appeal included affidavits sworn by the appellant's trial counsel, the appellant, MM and KM. None of the deponents was required for cross‑examination.
As to particular (i) of the ground of appeal, in my opinion the affidavit evidence as a whole reveals that defence counsel adequately advised the appellant (and MM and KM) of the consequences of his giving or not giving evidence. To the extent that defence counsel expressed a view as to whether the appellant should give evidence or not, I am satisfied, based on my examination of the affidavit material in the context of the matters in issue at the trial, that the proper objective inference is that counsel's view was rational and made after a consideration of the apparent forensic risks and advantages.
As to particular (ii) of the ground of appeal, I am satisfied, on the material before this court and in the context of the matters in issue at the trial, that the proper objective inference is that defence counsel's decision as to the questions to be put, and the questions not to be put, to CJM involved a rational tactical decision for a legitimate forensic purpose. I agree with Mazza J's reasons and McLure P's additional comments on this point.
As to particular (iii) of the ground of appeal, it was not properly open to defence counsel to examine MM as to the suggestion that CJM had informed him that she had been told by her mother to make up the allegations, in that defence counsel had not put that proposition to CJM in cross‑examination. As I have mentioned in the course of dealing with particular (ii), I am satisfied that defence counsel's decision not to cross‑examine CJM on this and other issues involved a rational tactical decision for a legitimate forensic purpose. I agree with Mazza J's reasons and McLure P's additional comments on this point.
Defence counsel's advice to the appellant in relation to giving evidence, and counsel's conduct of the defence at trial, did not make the trial unfair or occasion a miscarriage of justice.

MAZZA J: This appeal was heard on 15 September 2010. On 24 September 2010, I joined with McLure P and Buss JA in making orders refusing leave to appeal and dismissing the appeal. These are my reasons.
The appellant, a child born on 14 December 1994, was charged with indecently dealing with a child under the age of 13 and two counts of sexually penetrating a child under the age of 13. The alleged offences occurred in one incident in or about September 2008. The alleged victim of these offences was a girl, CJM, born 11 March 2003. The appellant and CJM were known to each other. CJM's father, MM, and the appellant's mother, KM, were, and still are, in a relationship. The appellant pleaded not guilty to all charges and was tried before the President of the Children's Court of Western Australia, Judge Reynolds, sitting alone on 9 and 10 February 2010. On 10 February 2010, the appellant was found guilty of the indecent dealing offence and one of the counts of sexual penetration. He was acquitted of the remaining charge.
The sole ground of appeal alleges that, as a result of the incompetence of the appellant's trial counsel, a miscarriage of justice occurred.
In order to consider this ground of appeal, leave was given pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA) for the appellant to adduce evidence in the form of affidavits from the appellant, MM and KM. The respondent was given leave to adduce evidence in the form of an affidavit from defence counsel, Mr B. No deponent was required to attend for cross‑examination.

Background

The appellant was charged by police with the offences by a prosecution notice dated 23 May 2009. He first met with defence counsel on 20 August 2009. Amongst those present were MM and KM. At this meeting, the appellant was shown the statement of material facts prepared by the police. He denied the allegations made against him.
Subsequently, defence counsel appeared for the appellant at the Children's Court in at least one, and perhaps another, pre‑trial hearing.
On 31 January 2010, defence counsel met with MM and KM without the appellant being present. Several matters were discussed at this meeting, including how the appellant would handle giving evidence, certain aspects of the lifestyle of the complainant's mother, JMG, with whom the complainant lived and JMG's relationship with MM.
Defence counsel met with the appellant, MM and KM at the appellant's home on 7 February 2010. At this meeting, the issue of whether the appellant should give evidence was discussed. Defence counsel asked the appellant some questions in the manner which might have been expected at trial. The appellant was told by defence counsel that it was his choice whether to give evidence or not. At this point, defence counsel's view was that it may be best for the appellant not to give evidence, but the final decision on the question was left open until the close of the prosecution case at trial.
At this meeting, defence counsel spoke to MM alone. MM, in his affidavit, described the conversation in these terms:
27I can advise the Court that I told [Mr B] that I had something I needed to discuss with him in relation to the Complainant and that [Mr B] asked that the [appellant] and [KM] wait outside.
28I can advise the Court that [KM] and the [appellant] did wait outside.
29I can advise the Court that I told [Mr B] that the Complainant's mother often makes her lie about the [appellant] and that over the weekend, the Complainant had 'broken down' and made admissions to me.
30I can advise the Court that I told the Complainant 'just to tell the truth'.
31I can advise the Court that the Complainant stated to me that she couldn't as her mother would be in Court with her.
32I can advise the Court that the Complainant told me that the allegations against the [appellant] were a lie.
Defence counsel's response to these paragraphs was as follows:
32In relation to paragraphs 27 to 29, I asked to speak to [MM] on his own. [MM] told me that on one occasion the complainant said that the sexual acts she alleged happened did not happen. He did not tell me that the admission had taken place the weekend before the trial. I asked [MM] about his perceptions of the complainant. He said he believed that something happened but probably not to the full extent as what she said. [MM] did not say to me that the complainant's mother often tells her to lie about the appellant.
33I cannot comment on paragraph 30.
34I cannot comment on paragraph 31, save that I was told that there was concern about pressure on the complainant in the presence of her mother.
35I cannot comment on paragraph 32.
The appellant's election to give evidence was kept under review during the trial. The prosecution closed its case just before lunch on 9 February 2010. During the lunch break, the appellant spoke with his mother. He then spoke to defence counsel after which he decided not to give evidence.

The evidence at trial

The only evidence as to the facts of the offences came from CJM. Her evidence largely came in the form of a visually recorded interview made on 2 January 2009. She was cross‑examined by defence counsel via closed circuit television at trial.
In the visually recorded interview, she said that on the day in question she was staying with MM and KM, the appellant and the appellant's brother at an address in a Perth suburb. She said that she, the appellant and his brother were playing a game called 'shopping' outside the house in the garage. She said that at some point she and the appellant were behind some bins. While there, she said the appellant exposed his penis and made her 'shake his willy'. This is the allegation in count 1. With respect to count 2, she said that the appellant made her 'put his private into her mouth'. She said it tasted 'gross'. This evidence was accompanied by a non verbal description consistent with an act of fellatio. With respect to count 3, which resulted in an acquittal, the complainant said that the appellant put his private 'in there'. When she was asked 'where in your vagina did he put it?' she replied 'um, can't remember'. She said that the appellant told her not to tell anyone what had happened.
The State prosecutor showed the complainant some photographs. One of the photographs showed a fence where the complainant said the appellant's brother had been on the day in question. She said that when the acts of sexual penetration occurred, the appellant was sitting on a green and yellow 'sunbake' chair which could bend backwards and forwards.
Defence counsel began his cross‑examination by putting to the complainant that the fence in the photograph she had identified as being there on the day of the offences was, in fact, put there later. CJM said she was sure it was there when the offences were committed.
Defence counsel put to her that there was no yellow and green folding chair at the house. CJM said it could have been just green in colour. She did not know if the chair was out the front or the back.

Defence counsel also asked her about an occasion, not the occasion in issue, where she had made a complaint to her Nanna H about something which had happened between her and the appellant. The cross‑examination was as follows:
And you said something to her about [the appellant] and you once, didn't you, to her?‑‑‑Mm'hm.
And you went and saw some people about that?‑‑‑Yep.
But that wasn't the truth, was it?‑‑‑No.
Because when you told them about what happened you were not telling the truth at that time, were you?‑‑‑I was.
But you told them that you weren't telling the truth?‑‑‑I was.
And you told your dad, didn't you? You told your dad, [MM], that it wasn't the truth?‑‑‑But it was.
But you told him it wasn't the truth or did you tell him that it was the truth?‑‑‑I told him that it was the truth (green AB 24 ‑ 25).
CJM agreed that sometimes she plays a game called 'opposites'. She was cross‑examined in these terms about this game:
Yes, because sometimes you play opposites, don't you?‑‑‑Opposites?
Yes. What you say is the opposite to what's real, don't you?‑‑‑Yeah, say, if I say it's opposite day, that means it's not opposite - if I say, 'It's not opposite day' means it's opposite day and yes means no, and no means yes.
You play that with people, don't you, with your - - ‑?‑‑‑It's not a game.
It's not a game?‑‑‑No.
So some days it's opposites and some days it's not?‑‑‑No, it's always been opposites.
So sometimes you tell your dad things and it's the opposite to what is real. Is that true? Yes?‑‑‑Because [the appellant's brother] and [the appellant] get it.
Pardon?‑‑‑Kids only get opposite days.
Kids only get opposite days? So if it's opposite when you are saying something opposite, it's not really lying. Is that true?‑‑‑So if I say it's true, it's not true. If I say it's not true, it's true.
...
So you say to your mum - sorry, you say to your dad some things that aren't true because it's opposite?‑‑‑Mm.
And that's okay, is it?
You are nodding your head. That's okay to say an opposite? Yes, nodding?‑‑‑Yeah.
When you speak with your mum you sometimes talk in opposites too, do you? You say, 'Opposites' to her?‑‑‑No, only sometimes.
So you would say to your mum something that wasn't true but it's an opposite?‑‑‑Yes.
So that's okay?‑‑‑Yep (green AB 27 ‑ 28).
Defence counsel also cross‑examined CJM about discussions her mother may have had with her about the appellant. The cross‑examination was as follows:
What you have told us about [the appellant]: has your mum talked about that with you?‑‑‑No.
Okay, she has never talked to you about it at all?‑‑‑I don't think so.
You say you don't think so. Can you remember any time that she has?‑‑‑She's ever.
Have you ever heard your mum talking about - you know the things that we said that [the appellant] did to you? You know those things about holding his willie and those things?‑‑‑Yeah.
Have you ever heard your mum talking about those things to you?‑‑‑No.
No? Have you ever heard your mum talking about those things to other people?‑‑‑No.
Or something similar to that, anything to do with willies?‑‑‑No.
Anything to do with privates? Has your mum spoke with anybody?‑‑‑No.
You never told your dad about these things that [the appellant] did, did you? You didn't speak to your dad about it?‑‑‑Never.
...
Did your mum tell you to say these things in Court today?‑‑‑No.
And you have never discussed these things with your mum before?‑‑‑About [the appellant]?
Yes?‑‑‑Yeah, I have.
You have?‑‑‑Yes.
Is that an opposite?‑‑‑No (green AB 30 ‑ 31).
Defence counsel closed his cross‑examination with more questions about 'opposites' as follows:
Sometimes you would lie to your mum if it was an opposite. That's right, isn't it: you would lie if it was an opposite?‑‑‑Opposite day.
Yes, and then if it's an opposite day it's okay to lie?
You're nodding your head. Is that correct?‑‑‑Mm'hm.
Yes? I have nothing further, your Honour (green AB 32).
Defence counsel did not ask CJM if she had told her father that the allegations she made about the appellant were lies. Further, he did not ask CJM if she had told her father anything about her mother making her lie.
JMG gave evidence about the custodial arrangements for CJM. She said that she and MM, who had once been in a relationship, had a shared care arrangement, one week on, one week off, in 2008. She also testified that CJM complained to her about the allegations.
Defence counsel cross‑examined her about her use of amphetamines. She agreed she had used the drug. He suggested that she harboured feelings of jealousy towards MM and KM. She denied this. She was asked whether she had told CJM what to say in court. Cross‑examination on this point was as follows:
Have you ever told [CJM] what to say in court - - -?‑‑‑Never.
- - - about willies and private parts?‑‑‑Never (green AB 44).
The police officer in charge of the investigation gave some brief evidence which is irrelevant for the purposes of this appeal.
The only defence witness was MM. In examination‑in‑chief, he said that the fence identified by CJM as being present on the day of the offences was not in fact erected until February or March 2009. He also said that the only chairs outside the unit were black and white and did not recline. MM was not asked about any conversation that he had with the complainant in which the complainant said that she had lied about the allegations she made against the appellant.

The issues at trial

There were two live issues at trial - whether the prosecution had proved beyond reasonable doubt that the alleged offences had occurred and, if they had, whether the prosecution had established that the appellant had the capacity to know that he ought not to do what he did: s 29 of the Criminal Code (WA).

The parties' cases at trial

The State case was that, notwithstanding her age, CJM was a credible witness as to the facts and his Honour could be satisfied beyond reasonable doubt that the appellant had committed the alleged offences. As to the question of capacity, the prosecutor submitted that, at the time of the alleged offences, the appellant was close to the age of 14 years and that, on the complainant's account, the appellant had told her not to tell anyone, which the prosecutor submitted indicated that he was aware that what he had done was wrong.
Defence counsel submitted that the complainant was not a credible witness. He referred to the apparent discrepancies in her evidence relating to the fence and the 'sunbake' chair. He placed some emphasis upon the opposites game and suggested to his Honour that 'if it's an opposite it's not really a lie for her' (green AB 67). It was submitted that, if the appellant had committed any of the alleged offences, the prosecution had failed to prove that he had the capacity to know that he ought not to do the act said to constitute the offence.

His Honour's reasons

There is no need to canvass in any detail his Honour's reasons. No criticism is made of them.
His Honour found that CJM was consistent on key aspects of her evidence, particularly on the substance of the allegations in counts 1 and 2. He was struck by the non‑verbal description that she gave when describing the act of fellatio. He said there was a paucity of detail surrounding count 3 and he was not satisfied beyond reasonable doubt about this charge.

The legal principles

The relevant legal principles applicable to this appeal are not in doubt. They were recently set out by McLure P (Buss JA & Mazza J agreeing) in McMahon v The State of Western Australia [2010] WASCA 143 [24] ‑ [28] 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).
The outcome of this appeal depends on the appellant establishing a material irregularity affecting the outcome. Where material irregularity is relied on, the focus must be upon what happened or did not happen at trial, not on why the error occurred (whether that be for failure to take proper instructions or for any other negligent act or omission): Nudd [25] (Gummow & Hayne JJ). Based on the nature and extent of the evidence adduced in the appeal, it appears neither counsel understood this fundamental proposition.
See also KLM v The State of Western Australia [2009] WASCA 73; (2009) 194 A Crim R 503 [47] ‑ [55] (Martin CJ).
Because the test of whether there is a material irregularity is objective, the question to be answered in relation to defence counsel's conduct is not, 'Why did counsel act as he or she did?' nor is it whether counsel was competent or not. The correct question is, 'Could there be any reasonable explanation for what counsel did?': TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [107] ‑ [108] (Hayne J).
In answering this question it must be borne in mind that forensic decisions made by counsel are often made in the heat of the moment and are frequently the product of experience, instinct, impression and an assessment of risk. Counsel is in a better position than a court of appeal to judge the reaction of a witness and the trier of fact to a particular line of questioning and to make some judgment as to how the case is going at the time a forensic decision has to be made. It cannot be forgotten that such decisions are things about which informed minds can legitimately differ and there is no absolutely correct answer. Sometimes, with the wisdom of hindsight, a certain course can be regretted. However, this does not mean that what was done was wrong, unwise or imprudent. If a forensic decision can be judged as reasonable by a court of appeal, it will not amount to a material irregularity.
The path for the appellant is a difficult one. It must be demonstrated that there could be no reasonable explanation for counsel's decisions and that what occurred caused a miscarriage of justice.
The appellant's particulars of alleged material irregularities by defence counsel are that he:
(1)failed to properly advise the appellant about giving evidence;
(2)failed to cross‑examine the complainant as to her fabrication of the allegations; and
(3)failed to elicit evidence from MM regarding a conversation with the complainant in which it is said that the complainant told MM that she had been told by her mother to make up the allegations against the appellant.
The written submissions which have been filed on behalf of the appellant in support of these particulars are unhelpfully brief and expressed too generally. The affidavit evidence filed by the parties also suffers from being too general in that they provide scant detail as to what precisely was said in the various conversations which are referred to.
Before analysing the ground of appeal, I will set out some of the affidavit evidence.

Allegation that defence counsel failed to properly advise the appellant about giving evidence

In his affidavit, the appellant stated:
17.I can advise the Court that [Mr B] asked me some questions which he said I could expect in Court.
18.I can advise the Court that [Mr B] brought up the issue of whether I would give evidence in Court.
19.I can advise the Court that he did not explain the difference between me giving evidence or not but just said he did not feel I would be a confident witness in the stand.
20.I can advise the Court that [Mr B] said that it was up to me whether I gave evidence or not.
21.I can advise the Court that on 9 February 2010, on the day of the Trial, [Mr B] asked me if I was going to take the stand.
22.I can advise the Court that I told [Mr B] that I would not give evidence in Court because I was scared and didn't think it mattered if I gave evidence or not.
23.I can advise the Court that I was very scared and confused.
24.I can advise the Court that I did not give evidence in Court.
KM said in her affidavit, that at the meeting on 31 January 2010, she expressed to Mr B her concerns as to how the appellant would handle giving evidence and how, and in what way, the prosecution would question the appellant. She asked Mr B if he would ask the appellant some questions in the same manner as the prosecutor might.
KM said that on 7 February 2010, Mr B 'asked the [appellant] a couple of sample questions'. She then stated:
38.I can advise the Court that [Mr B] stated that he did not feel that the [appellant] would be a confident witness in the stand.
39.I can advise the Court that [Mr B] stated that if the [appellant] took the stand there would be a fifty/fifty outcome and that he was of the belief that it would not make a difference whether the [appellant] took the stand or not.
40.I can advise the Court that [Mr B] told the [appellant] that it might be a traumatic experience for him.
41.I can advise the Court that the reasons in support of or against the [appellant] giving evidence in Court were not explained to us, nor were we asked to provide any input into the decision.
KM said that on 9 February 2010, during the luncheon adjournment, Mr B asked the appellant, in her presence, 'if he was going to take the stand'. She stated that Mr B told her to talk to the appellant over lunch about the matter.
Her account of what then happened is as follows:
47.I can advise the Court that before the Trial recommenced after the luncheon break, [Mr B], in my presence, asked the [appellant] whether he had decided to give evidence on the stand or not.
48.I can advise the Court that I told [Mr B], on behalf of the [appellant], that the [appellant] would take the stand.
49.I can advise the Court that I told [Mr B] that I had explained to the [appellant] that it was normal for him to be feeling scared and nervous.
50.I can advise the Court that I was told by [Mr B] that I shouldn't have convinced the [appellant] to give evidence at the Trial and that it was a decision that the [appellant] had to make on his own and that giving evidence could go either way.
51.I can advise the Court that [Mr B] shrugged his shoulders indicating to me that it made no difference whether or not the [appellant] gave evidence on the stand.
52.I can advise the Court that the [appellant] then changed his mind and no longer wished to give evidence in Court.
…
54.I can advise the Court that at no time did [Mr B] explain to the [appellant] why he should or should not give evidence in Court.
In his affidavit, MM referred to the meeting on 31 January 2010. On the topic of whether the appellant would give evidence, MM said:
23.I can advise the Court that [Mr B] discussed with [KM] and I how the [appellant] would handle taking the stand to give evidence and how we should expect the Prosecution to question the [appellant].
With respect to the meeting on 7 February 2010, MM said:
35.I can advise the Court that [Mr B] told the [appellant], in my presence, that if he were to take the stand then the outcome would be '50/50' and that [Mr B] didn't feel it would make a difference either way if the [appellant] took the stand or not
36.I can advise the Court that [Mr B] told the [appellant], in my presence, that it might be a traumatic experience for the [appellant]. I can advise the Court that [Mr B] did not discuss with the [appellant] why he should or shouldn't take the stand.
With respect to the events of 9 February 2010, MM said:
38.I can advise the Court that [Mr B], in my presence, asked the [appellant] if he was going to take the stand.
39.I can advise the Court that the [appellant] was unsure and [Mr B] told the [appellant] to talk with [KM] over the luncheon break to make his decision.
40.I can advise the Court that [Mr B] did not offer any advice to the [appellant] as to why he should or should not take the stand.
…
44.I can advise the Court that upon returning from lunch, [Mr B] and I met up with the [appellant] and [KM].
45.I can advise the Court that [Mr B], in my presence, asked the [appellant] if he had decided whether to take the stand or not.
46.I can advise the Court that [Mr B] told the [appellant] it was 'no big deal' if he did not want to take the stand.
47.I can advise the Court that the [appellant] conveyed to us, [Mr B], [KM] and I, that he was scared and did not wish to take the stand.
Defence counsel's response to the appellant's affidavit is as follows:
19.In relation to paragraphs 18 and 19 I discussed again that it was up to the prosecution to prove the elements and that the appellant did not have to prove a thing. I again discussed the prosecution's need to prove the capacity element. I advised that if the appellant did not give evidence then this would be a problem for the prosecution. A day or so before trial the prosecution disclosed the appellant's school records. I successfully argued that they should not be tendered into evidence. When I received this information I knew the prosecution would attempt to use it to address the capacity element.
20.I advised it may be best not to give evidence but the decision could ultimately be left until the close of the prosecution case. I absolutely said that the decision to give evidence or not was the appellant's. I said have a think about it, chat with your mother and you can decide later.
21.The appellant said at this meeting he did not wish to give evidence. I said the ultimate decision on whether to give evidence was the appellant's. In relation to paragraphs 21 and 22, I agree we discussed the matter again prior to court and again after lunch. Again the discussion included consideration of how the appellant would answer questions and the capacity element. It was discussed that there were positives and negatives to giving evidence. I cannot comment on whether the appellant was scared or confused, as he says in paragraph 23; he did not appear confused to me. I agree with paragraph 24.
22.The appellant was fully advised of his right to give or not give evidence. Further it was discussed that sometimes giving evidence may make things worse if the manner in which the answers are given is not convincing. I did not tell the appellant that if he did not give evidence there would be no positive denial by him in court.

Defence counsel did not dispute the account given by KM and MM of the meeting on 31 January 2010.
Defence counsel stated in his affidavit that at the meeting on 7 February 2010, the question of whether the appellant would give evidence was raised. Defence counsel said that he asked the appellant 'a few questions of a cross‑examination type'. He stated that he was concerned about how the appellant would present under cross‑examination.
In respect of MM's affidavit, defence counsel said:
37.In relation to paragraphs 35 and 36, the discussion was about the pros and cons of taking the stand. This was a discussion that I had when I discussed the issue of criminal capacity. I believe that I did say it may be a traumatic experience for the appellant to give evidence. I did so against the background that the appellant's mother had raised concerns about the impact on the process on her son. This was one of the factors I had asked the DPP to consider in my 'public interest' submission. I am not sure whether I used the phrase 'fifty/fifty['] to describe the potential outcome if the appellant gave evidence. If so, it was in the context of the discussion about the pros and cons of giving evidence.
With respect to KM's affidavit, defence counsel referred to what he had already said on the topic of the appellant's election to give evidence. He added:
50.I do not recall [KM] making the comment she mentions in paragraph 49 of her affidavit, though I do remember that she was extremely concerned for the appellant. I do not recall making the comment to her that she mentions in paragraph 50, or shrugging my shoulders. I do recall expressing concerns about the appellant giving evidence.
51.I had previously discussed at the appellant's home the criminal capacity issue, the burden of proof, who has to prove the case, and that he did not have to give evidence. I told the appellant and his mother that I believed the cross‑examination of the complainant was such that she may not be believed and the prosecution may not establish their case. At the time the appellant said he did not wish to give evidence I was satisfied that it was a free and informed decision.

Merits of the appellant's ground of appeal

It is convenient to deal with the second and third particulars which attack defence counsel's failure to put to the complainant in cross‑examination and subsequently to examine MM about the alleged conversation between her and MM in which she allegedly said her mother asked her to lie about the appellant and that the allegations of sexual misconduct were untruthful.
In his oral submissions, the appellant's counsel contended, in effect, that there was little, if any, risk in pursuing this line of cross‑examination and that failing to do so made leading the evidence of a conversation from MM pointless. The implication of these submissions was that defence counsel's failures were material irregularities in the trial which led to a miscarriage of justice.
Defence counsel was told prior to trial by MM about this alleged conversation, or, at least, some aspects of it. However, according to defence counsel, MM had also told him that he believed 'something had happened' between the appellant and the complainant. This factor could reasonably have made defence counsel wary about calling MM to give evidence about the conversation. Although MM's opinion was irrelevant, the statement may well have signalled to counsel that MM was aware of something which, if revealed under cross‑examination, may have been to the appellant's disadvantage.
Defence counsel put to the complainant in cross‑examination that she had, in relation to the complaint she made to Nanna H, told MM that what she alleged about that occasion was false. The complainant denied this and said that she had told him the truth (see [44] above).
He also put to the complainant that she had spoken to MM about the allegations the subject of the trial. She denied this (see [46] above). Defence counsel also asked the complainant if her mother told her 'to say these things in court'. She denied this (see [46] above).
In light of these responses, defence counsel could reasonably have come to the view that questions suggesting that she had told MM that she had lied about the allegations and that her mother made her lie about them were likely to be met with a negative response. Counsel could reasonably have thought that such denials may have, to the detriment of the appellant, bolstered her credibility in the eyes of the presiding judge.
Defence counsel could reasonably have come to the view that the complainant's credibility had been damaged by the cross‑examination about the game of opposites. Further, the answers she had given in relation to the fence and the 'sunbake' chair were to be contradicted by MM's evidence. Finally, the complainant's evidence about the act of penile penetration was, to some extent, vague and could reasonably have been seen by defence counsel as diminishing her credibility, not just on that count, but overall.
In all of these circumstances, counsel acting reasonably may have come to the view that enough had been done to demonstrate the complainant's unreliability and that there would be nothing more to gain by questioning her on matters which she was likely to deny.
Once counsel had made the decision not to cross‑examine the complainant about whether she told MM that she had lied about the allegations and that her mother made her lie about them, there was little point in leading evidence from MM about the conversation. Moreover, as I said earlier, defence counsel could reasonably have been wary of what else MM might have said had the conversation been led.
In my opinion, there are reasonable forensic explanations for defence counsel's cross‑examination of the complainant and the evidence‑in‑chief of MM. Consequently, the appellant has failed to demonstrate that either of the second or third particulars was a material irregularity.
However, if I am wrong and there has been a material irregularity or irregularities, it has not, in my opinion, been demonstrated that there has been a miscarriage of justice occasioned by them. The evidence of MM, as set out in his affidavit, is no more than bald assertion. No detail was provided about the words that were spoken in the alleged conversation between him and his daughter, nor is there any hint of the context in which the conversation occurred. There is no detail as to how the conversation arose, what the complainant and MM actually said, and whether the words spoken by the complainant were spontaneous or were led. None of this is known. It is simply impossible, having regard to the paucity of detail contained in MM's affidavit, to judge whether the evidence would have been cogent enough to enable his Honour to entertain a reasonable doubt about the appellant's guilt.
I now turn to the first alleged material irregularity concerning the alleged failure on the part of defence counsel to properly advise the appellant of the effects of not giving evidence.
No oral submissions were directed to this particular. The appellant's counsel said that he was content to rely on the written submissions in support of it. Those submissions are, in total, as follows:
[Defence counsel] failed to comply with his obligation as a practitioner to explain to the Appellant and his mother the effects of not giving evidence, this resulting in a miscarriage of justice in that the Appellant was unable to properly dispute the allegations after his case was insufficiently covered by Counsel during cross‑examination of the Prosecution's witnesses.
This submission appears to be directed towards an alleged failure on the part of defence counsel made after the prosecution case had been closed. This is evident by the reference in the written submission to defence counsel's 'insufficient' cross‑examination of prosecution witnesses. The reference to the appellant and his mother provides a further clue because of the evidence that after the prosecution case closed, the appellant and his mother were told by defence counsel to discuss during the lunch break whether the appellant would give evidence.
The reference to the prosecution witnesses, I take to be a reference to the complainant and her mother, JMG. I have already, in the context of particulars 2 and 3, dealt with the appellant's criticisms of defence counsel's cross‑examination of the complainant. I will not repeat what I have already said about this. It is enough for me to say that I do not regard defence counsel's cross‑examination as being 'insufficient'. With respect to JMG, defence counsel asked her in cross‑examination whether she had told the complainant what to say in court (see [50] above). He received an emphatic negative response. She was also asked about alleged feelings of jealousy which she had towards MM and KM, and about her illicit drug use. In my opinion, the cross‑examination conducted by defence counsel was a reasonable one in all of the circumstances. In my view, the factual premise upon which the appellant's submission is based has not been made out.
However, there are more fundamental difficulties which face the appellant with respect to this submission. The first is that, on any view of the affidavit evidence, the appellant was aware, at all times, that he had a choice whether or not to give evidence and that he freely chose not to testify. That decision was made after discussions with his mother and defence counsel. Insofar as the decision can be seen to be a product of defence counsel's advice, that advice was a reasonable forensic decision to make. Defence counsel had formed the view that the appellant would not be a good witness. Further, defence counsel's cross‑examination of the complainant could reasonably have led him to the conclusion that the complainant's evidence was unlikely to be accepted beyond reasonable doubt and that to call the appellant would entail the risk that under cross‑examination he may give evidence which would have been to the prosecution's advantage.
Moreover, the issue of the appellant's criminal capacity remained live. Calling the appellant might well have resulted in this aspect of the appellant's case being undermined. In my view, no material irregularity has been demonstrated as a result of defence counsel's advice concerning the appellant's right to silence.
It is submitted that a miscarriage of justice arose because the appellant 'was unable to properly dispute' the allegations made against him. I do not accept this submission. The allegations were disputed at trial. The fact that an accused elects not to give evidence does not result in the defence being unable to 'properly' dispute these allegations. In any event, it is impossible to factually evaluate this submission on the evidence before this court. On the state of the evidence before this court, it is impossible to come to that conclusion. All that the appellant has said about the facts of the case in his affidavit evidence was at par 4 where he said 'I can advise the Court that at all times I have maintained my innocence'. Evidence of a bare denial would have added nothing to his pleas of not guilty bearing in mind the directions which his Honour had to give, and indeed did give, concerning the right to silence.

Conclusion

In my opinion, the appellant has failed to demonstrate that defence counsel's conduct resulted in a material irregularity which resulted in a miscarriage of justice. As a result, I joined with the other members of the court in dismissing the appeal.

[2011] WASCA 4

11/01/2011