Bohdal v the Queen
[1987] TASSC 20
•13 March 1987
TASSC A8/1987
CITATION: Bohdal v The Queen [1987] TASSC 20; A8/1987
PARTIES: BOHDAL, R K
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 69/86
DELIVERED ON: 13 March 1987
DELIVERED AT: Hobart
HEARING DATE:
JUDGMENT OF: Green CJ, Nettlefold and Wright JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:
Respondent:
Solicitors:
Appellant:
Respondent:
Judgment Number: TASSC A8/1987
Number of paragraphs: 42
Serial No A8/1987
File No CCA 69/1986
BOHDAL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
NETTLEFOLD J
WRIGHT J (dissenting)
13 March 1987
Orders of the Court:
Appeal allowed.
Convictions quashed.
That there be a new trial of the indictment.
Serial No A8/1987
File No CCA 69/1986
R K BOHDAL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GREEN CJ
13 March 1987
This is an appeal and an application for leave to appeal against the appellant’s conviction on 20 counts of burglary and 15 counts of stealing.
The grounds of appeal and the relevant passages from the transcript appear in the reasons for judgment of Wright J, and I do not need to repeat them.
Sergeant Warren’s remark was part of an answer which was only faintly responsive to the question which preceded it and was a remark from which the jury could have inferred that the appellant had on previous occasions been suspected of committing crimes and possibly, bearing in mind the previous questions and answers, it was also a remark from which the jury could have inferred that on previous occasions the appellant had confessed to committing crimes.
Senior Constable Speer‘s remark was made gratuitously in the course of a statement which itself may be regarded as having been volunteered rather than given as an answer to a question and was capable of being construed as a suggestion that the appellant had prior convictions.
The statements made by these two witnesses were inadmissible, prejudicial and especially material in this case in the light of the fact that the appellant gave evidence that the confessional material attributed to him had been fabricated.
Without more, the foregoing would be capable of sustaining a conclusion that a miscarriage of justice occurred. However, there are strong countervailing considerations. Counsel for the accused expressly declined to ask the trial judge to discharge the jury and as McInerney J observed in R. v Sarek [1982] VR 971 at 982 and 983:
“Where an accused person has at his trial been defended by a legal practitioner, a Court of Criminal Appeal will attach great significance to the deliberate decision of that practitioner as to the conduct of the trial and the defences taken at the trial and it will be very reluctant to substitute its judgment for that of the practitioner who appeared for the accused at the trial: see, for example R. v James McCall, supra; R. v McIntyre, [1965] VR 593, at pp 595–7, per Pape, J; R. v Jeffrey, [1967] VR 467 at pp 469 and 474, per Barry, J; at pp 481–2, per Smith, J; and at pp 488–9, per Gillard, J See also R. v Hadland, [1969] VR 725; R. v Masin, [1970] VR 379, at pp 381–2, per Winneke, CJ; and pp 385–6, per Smith, J; R. v Nardella, [1971] VR 217, at pp 221–2, per Little, J. In most cases the appellate tribunal will not seek to go behind a deliberate decision taken at the trial by a solicitor or counsel for the accused or even by the accused himself.”;
it is not an invariable rule that the jury must always be discharged in such cases: Maric v The Queen (1978) 20 ALR 513, 520; nothing before this Court persuades me that this is one of those exceptional cases in which it would have been appropriate for the trial judge, or in which it would be appropriate for this Court, to “interfere to protect an accused man from his own counsel ... and from the result of bad management or misconduct of his case at the trial” – per Brooking J in R. v Sarek (supra) at 987; a relevant public policy consideration is that if appellate tribunals are too readily disposed to review the decisions made by an accused person as to the conduct of his case, or to permit an accused person to escape the consequences of such decisions, the philosophy which underpins the adversary system will be undermined and an undesirable lack of finality will be introduced into criminal proceedings.
I turn to consider my findings as to what occurred after the jury retired.
The appellant gave evidence before this Court that whilst the trial judge was speaking to Detective Senior Constable Speers the appellant glanced to his left and noticed that the outer door leading to the jury room was open and that a bald headed man of small stature whom he recognised as a juror who had been sitting in the back row of the jury box was standing in the open doorway. Counsel who appeared for the Crown gave evidence that at the material time he did not notice anything unusual but that he could not say whether the door was open or closed. The trial judge’s attendant who also gave evidence said that he thought that he had closed the door when the jury retired, but in cross–examination he agreed that he could not remember whether it was open or closed at the material time.
There is no basis upon which I would feel justified in rejecting the appellant‘s evidence. His evidence was consistent and detailed and there was nothing in his demeanour or in the answers which he gave in cross–examination which suggested to me that he was not telling the truth. Neither of the witnesses called by the respondent directly contradicted his evidence. At the time when the trial judge was speaking to Detective Senior Constable Speers there was no reason for the attention of anyone else in the court room to have been directed to the jury room door. Indeed, the probabilities are that their attention would have been directed to the trial judge or the witness. On the evidence I cannot reject the possibility that the judge’s attendant did not close the door properly or that he did close the door and then, during the adjournment which preceded the incident, a member of the jury opened it. I find that it is likely that a juror heard some or all of what the trial judge said to Senior Constable Speers and that he may have communicated what he had heard to the other jurors. But for that finding I would have found this a difficult borderline case. However, that finding does persuade me that a miscarriage of justice occurred. The trial judge‘s remarks would have confirmed and emphasised in the mind of the juror who heard them, and possibly in the minds of the other jurors, that the appellant had prior convictions and would have greatly increased the risk of prejudice which the giving of the evidence had already created.
The appeal should be allowed, the convictions quashed and a new trial ordered.
Serial No. A8/1987
File No. CCA 691986
BODAHL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
NETTLEFOLD J
13 March 1987
“It is absolutely essential that the basic rule of limiting the evidence to the charge that is made should always be the dominating rule of a criminal trial. Where evidence irrelevant to the charge is introduced imputing to the accused guilt or suspicion in respect of charges other than the one specific charge presented against him, this may amount to miscarriage of justice” (Watson and Purnell, Criminal Law in New South Wales, Vol 1, 631 – 632 citing R. v McKeon (1961) 78 WN (NSW) 798 and other cases including R. v Grills (1910) 11 CLR 400).
In this case the applicant was presented on an indictment containing a number of charges arising out of a series of burglaries. Stripped to its essentials the Crown case consisted in essence of the following:
(a) evidence that the crimes alleged in the indictment were committed;
(b)in relation to some counts an allegation that in a written record of interview conducted in a police building the accused admitted the crimes alleged in those counts, admitted he had read the record of interview and that it was true but declined to sign it (“suspect evidence”);
(c)in relation to other counts again an unsigned record of interview (“suspect evidence”) but also the evidence of an accomplice implicating the accused in these crimes (“dangerous evidence”).
The accused’s case in response was supported by his own sworn evidence, in effect, asserting:
(1) he was not involved in any of the crimes;
(2) in the current argot he was “verballed”.
The records of interview were allegedly conducted by a Detective Sergeant (hereinafter called “W”) in the presence of a Detective Senior Constable (hereinafter called “S”).
In the course of the trial in a passage which was unresponsive W breached the cardinal rule stated above. Separately, and allegedly independently, S seriously breached that cardinal rule. This breach was so bad that it attracted a rebuke from the trial judge. It was so bad that the Crown prosecutor who appeared for the Crown in the right of the State of Tasmania in this Court was heard to say “Your Honour I would not try to defend what he did”. However that cri de coeur was accompanied by a weak attempt to hang on to their verdicts which may have been obtained by that indefensible conduct. It will be noted, of course, that the breaches of the law by W and S were of grave import because, speaking practically, the accused’s real chance of acquittal consisted in raising a reasonable doubt about the credibility of W and S in relation to the alleged records of interview. It should also be noted that the only corroboration of the dangerous evidence, the accomplice, were those self same records of interview. Thus the position is that the breaches of “cardinal principle”, first by W and later by S (allegedly independent, inadvertent and coincidental breaches) were, in their effect, thoroughly self serving.
At the time of the second of these breaches of cardinal principle by Crown witnesses occurred nothing had happened to suggest that this was one of those exceptional cases where, notwithstanding the disturbing and grave risk of injustice which plainly existed, it was better for the accused to leave the jury to decide the case. A weak attempt was made to show that this was one of those exceptional cases. It was nothing of the kind. There was no advantage to this accused in keeping that jury But there was a risk of gross disadvantage.
In those circumstances I assert firmly and without the slightest doubt that it is impossible to affirm a reasonable belief in any one of the following propositions:
(1) the accused got a fair trial;
(2) the verdicts are safe or satisfactory;
(3) there has not been a miscarriage of justice.
I have described those unsigned records of interview as “suspect evidence”. By that I mean they belong to a class of evidence now causing wide concern throughout the nation. Wide concern because with disturbing frequency prisoners, including experienced criminals, are supposed to have admitted all in the bowels of a police building only to repudiate it all in court. And they are supposed to have admitted the truth of the record orally but did not sign it. Concern about this class of evidence is being expressed even by wide groups of laymen who take the trouble of reading newspapers of good quality (and see The Spectator for 21 June 1986, 13–14, an article by Mr L Kennedy).
In classifying that evidence as “suspect evidence” of course, one does no more than echo the statement of Cave J made almost a century ago. In Reg v Thompson (1893) 2 QB 12 at 18 he said:
“... I always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner‘s guilt is otherwise clear and satisfactory; but, when it is not clear and satisfactory, the prisoner is not infrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession;– a desire which vanishes as soon as he appears in a court of justice.” (And see Cleland v The Queen (1982–83) 151 CLR 1 at pp 12–13).
A troublesome feature of the instant case is that at the trial the cardinal rule mentioned at the beginning of these reasons was breached by each of the two officers present when the alleged confessions were recorded; alleged confessions which the accused swore were “verbals”.
There are other relevant facts in the case. But I postpone consideration of them in order to make the point that in accordance with basic principle the case for a finding of a miscarriage of justice if the facts stopped there was overwhelming (Maric v R. (1978) 20 ALR 513; R. v Lemsatef (1977) 2 All ER 835). And, if the facts stopped there, no Court of Appeal could dream of allowing the convictions to stand.
The only additional fact I wish to mention at this stage is that the learned trial judge asked the young legal practitioner who was defending the accused whether he made application to discharge the jury. The young practitioner said he did not. This is one of those exceptional cases where, for reasons which will appear, the accused gave evidence before this Court. On this aspect of the matter he said the advice from the young practitioner was that he, ie the practitioner, had not had trouble with this type of evidence before and he thought the case should go on. The accused’s evidence is that he felt that he should follow the guidance of the practitioner “as he was the lawyer”.
A feature of life in a small island like Tasmania is that there is a shortage of skilled and experienced manpower in many fields. That is acutely the case in the law. I do not wish to embarrass the young practitioner concerned who, with respect, is a very promising, conscientious young man whose work I admire. But he is young, and relative to the manpower available in more populace places, inexperienced. If he gave the advice which the accused said he did, and I have no reason to disbelieve the accused on that or any other subject, it was very bad advice. (I say that with regret because justice demands that I do). Quite apart from the accused’s evidence as to the young lawyer’s advice, I would have no doubt that the decision to go on with this trial was indefensible unless the accused gave strong reasons why it was in his interests to do so. He did not do that. And, I repeat, it was plainly not one of those cases where it could be suggested that it was advantageous to the accused to go on.
Notwithstanding the failure of the young practitioner to apply to discharge the jury, I would regard the decision to permit them to remain as wrong. It is one of those exceptional cases where the judge was under a duty to discharge the jury unless satisfied that the accused was insisting on continuing after receiving proper advice. He should have inquired into the strange circumstance that, in a case which turned on credit, the accused wanted to go on after his credit had been seriously and improperly compromised. Such an inquiry is delicate because of professional privilege. But it can be done consistently with the complete maintenance of that privilege. Under Tasmanian practice conditions in such a matter as this it is often not enough for the judge to accept without appropriate enquiry a submission from an officer of his court. There is an overriding duty to ensure a fair trial (see Mraz v The Queen (1954–56) 93 CLR 493 at 514; Pemble v The Queen (1970–71) 124 CLR 107 at 118; Maric v The Queen (supra) at 522; Howe v The Queen (1980) 32 ALR 478 at 482; R. v Sarek (1982) VR 971) .
For those reasons alone I would regard it as quite unjust to allow these improperly obtained verdicts to stand.
But the accused gave evidence, in effect, that a juror overheard the judge “rebuking S”. I do not propose to go into his evidence in detail. I would not reject it. It was not inherently improbable or unlikely. There was no apparent flaw in his demeanour. He was not shaken in cross–examination. It is unlikely that he made up the story. He supplied impressive detail. He was not directly contradicted by any firm assertion. And in any event I cannot assume that the door was in good condition or in a defective condition. I do not know. His evidence had the ring of truth.
Acting on that evidence there is an additional, but unnecessary, reason for affirming that:
(1) the accused did not have a fair trial;
(2) the verdicts are unsafe and unsatisfactory;
(3) there was a miscarriage of justice.
The verdicts should be quashed and a new trial ordered.
Serial No A8/1987
File No CCA 69/1986
BOHDAL v THE QUEEN
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WRIGHT J
13 March 1987
On the 30 June 1986 the applicant was found guilty by a jury of twenty counts of burglary and fifteen counts of stealing. On 1 July 1986 the trial judge Cox J sentenced the applicant to eighteen months‘ imprisonment. The applicant now appeals or seeks leave to appeal on the following Grounds.
“1. That the trial judge erred in law and in fact in that he failed to discharge the jury when:
(i)Detective Sergeant Warren referred to the accused as being known to the police and having been subject to previous police enquiries;
(ii)Detective Senior Constable Speers referred to the accused as being known to the police and as having a prior criminal history.
2. That the verdict of the jury was a miscarriage of justice because the said jury had heard:
(i)Detective Sergeant Warren refer to the accused as being known to police and having been subject to previous police enquiries;
(ii)Detective Senior Constable Speers refer to the accused as being known to the police and as having a prior criminal history;
(iii)The trial judge reprimanded Detective Senior Constable Speers for his reference to the accused as being known to the police and as having a prior criminal history.”
The first of the incidents complained of in the above Grounds occurred on 26 June 1986 when Detective Sergeant Warren was under cross–examination by Mr Ellis of counsel for the applicant. Mr Ellis was asking the witness whether or not the applicant had admitted to every burglary about which the police had questioned him. The witness said that the applicant had admitted involvement in all of them. Then the following passage occurred.
“Mr Ellis: One hundred percent strike rate?
Witness: One hundred percent what?
Mr Ellis: Strike rate?
Witness: He was very co–operative.
Mr Ellis: Very – he was talking well?
Witness: Well Mr. Bohdal I have spoken to before, I’ve never had any problems –
Mr Ellis: He was talking well, as you said to Sergeant, said to Constable Speers?
Witness: I what?”
This incident was not the subject of immediate comment by counsel or the trial judge. However the following day Detective Senior Constable Speers who also gave evidence in relation to the police interview of the accused, was being cross–examined as to arrangements that had been made to present the accused to the court after his arrest. The following exchange occurred.
“Mr Ellis: Right and what arrangements were made to get him to court then?
Witness: That I wouldn‘t know.
Mr Ellis: Should have been some shouldn’t there?
Witness: Wasn‘t my responsibility.
Mr Ellis: Doesn’t answer my question. Should have been some shouldn‘t there?
Witness:Well I am not too sure, really, they are supposed to be taken before a court as soon as practicable.
Mr Ellis: Yes.
Witness:We had several matters to speak to your client about; knowing his past history, possibly it was thought more appropriate to get those matters dealt with before he had the opportunity to go to a court
Mr Ellis: Is that what you say crossed your mind?
Witness: Well that’s the answer the only answer I can give you to your question.
Mr Ellis: Is that what you say crossed your mind?
Witness: No it didn‘t cross my mind, but that’s the only answer that I can give you.
Mr Ellis: I see.
Witness: As I said it wasn‘t my responsibility.
Mr Ellis:You didn’t want him to go to a court because he complains when he gets to a court as he did as you well know?
Witness: I wasn‘t at the court.”
A few minutes after this incident took place (again without immediate comment by counsel or the trial judge) his Honour stopped proceedings and sent the jury to the jury room. His Honour then said:
“His Honour: Gentleman I am concerned about an apparently exceedingly foolish and intemperate remark made by this witness concerning the past history of the accused. Do you have any application Mr Ellis?
Mr Ellis: Could I take instruction your Honour?
His Honour: Yes. Would you like me to adjourn?
Mr Ellis:If it please your Honour. There was a remark yesterday to which (remainder inaudible).
His Honour: There was another remark yesterday, was there? Can you give me the page reference to that ?
Mr Ellis:No. I am sorry. I thought best to ignore it. There was ’on previous occasions he‘s had no difficulty’ or something like that.
His Honour: I will retire until you are ready.”
There was then a brief adjournment following which his Honour returned to the court and said as follows:
“His Honour: Yes Mr Ellis?
Mr Ellis: I have no application to make your Honour.
His Honour: You have no application Mr Ellis?
Mr Ellis: No your Honour.
His Honour: I would just like to say this Detective Speers that your remark about this man‘s previous history very seriously jeopardized this trial and I nearly discharged the jury; I would absolutely have no hesitation at all in discharging the jury if the accused asked me to do so; a most foolish thing to do. I will just stand this matter down and deal with the Barnes matter now. Bring up Barnes.”
His Honour then briefly dealt with the matter of Barnes which was totally unrelated to the present matter. After Barnes had been remanded until a later date his Honour instructed that the jury in the present case be brought back into the court. The witness Speers was not further questioned. There was no re–examination and he was relieved from further attendance. Both the above incidents are covered by Ground 1 pars (i) and (ii) and Ground 2 pars (i) and (ii). The additional matter referred to in Ground 2 par (iii) is intended to refer to an incident claimed by the applicant to have occurred whilst the trial judge was reprimanding Detective Senior Constable Speers. The applicant gave sworn evidence before this court.
He said that while the reprimand was being administered he saw a juror standing adjacent to the inner jury room door. He said that he was able to see this because the door from the court to the jury room was wide open (and he illustrated that this was to an extent greater than 90 degrees) during the time that the reprimand was being administered. The applicant’s evidence in this respect was contested by Mr A J T Perkins, Mr Justice Cox‘s attendant, who was present during the trial and who had occasion to shut the jury room door when the jury retired. Mr O’Farrell of counsel for the Crown who was prosecuting the applicant was also called to give evidence and he said that he recalled nothing unusual of the kind alleged by the accused during the course of the trial. He was seated in a position at the Bar table from which he would have been able to see whether or not the door between the court and the jury room was open.
For my part I am quite unpersuaded that the appellant saw the jury room door open or saw a juror in a position from which he could hear his Honour’s rebuke to the witness. I consider it improbable in the highest degree that an incident of this kind could have occurred without the participants in the trial being aware that the jury may be able to over–hear what was going on in court. The whole purpose of having them retire was to ensure that they did not hear what was occurring in court. If the door had only been slightly ajar I can understand that this may have escaped attention but then, of course, the applicant would have been unable to see what he claims to have observed. I am quite confident that if the door had been opened to the extent that he claims, it would have been immediately apparent to prosecuting counsel and the trial judge and would have been rectified before matters were permitted to proceed in the way that they did.
I also take judicial notice that the outer door leading from the court to the jury room is painted white on the jury room side with hinges towards the rear of the court room as viewed from the Bench. It thus opens in a way which is directly opposite to the way which was described by the applicant. It is not without significance that the applicant did not draw the matter to the immediate attention of his counsel. He claims not to have understood the significance of the juror being in a position to overhear what was taking part in court. I find this unacceptable. The applicant did not strike me as an unintelligent person and he was perfectly well aware that the interruption to proceedings had been brought about because of his Honour’s expressed fear of the consequences of the jury overhearing about his prior convictions. I do not accept that an incident occurred in the way described by the applicant or indeed that there was any incident at all.
The learned trial judge, provided a report in respect of this matter dated 13 August 1986 in that he said inter alia “the jury was in the jury room at the time I ‘reprimanded’ the witness and did not return until the Barnes matter had been dealt with. I cannot see any opportunity for any juror to have heard what I said.” A supplementary document entitled “Particulars of the Grounds of the Appeal” was supplied by the applicant to the Registrar on or about 8 August 1986. In par 3 of those Particulars the applicant alleges:
“ The jury member was at the second door where they go into the room on the left hand side of the court, the first door in the courtroom was open.”
In par 5 of the particulars he said:
“The jury member would have heard Judge Cox reprimand Detective Speers and would have told the other jury members which would have made the jury think that I had done this before so that would give them a bias against me.”
Therefore, although it may be said that the trial judge‘s report does not specifically advert to the matters recounted in evidence by the applicant during the course of this appeal, it is plain that his report contains a strong indication that nothing irregular occurred during the course of the trial. I should make it clear however that I have not placed reliance upon the trial judge’s report in reaching the conclusion that I have as to the applicant‘s allegations. On the other hand in view of the discussion which occurred during the hearing of the appeal as to the admissibility of the trial judge’s report in respect of disputed facts I should record that in my opinion a report furnished under the provisions of the Criminal Code s408(3) may not only contain the trial judge‘s opinion as to the case but also may contain factual material concerning incidents that are alleged to have occurred during the course of the trial. See The King v Storer [1916] VLR 285 at 287; The King v Johansen [1917] VLR 584 at 590; The King v Murray [1924] VLR 374 at 379 – 380. There is also a very useful dissertation as to the use that can be made of a report from a trial judge in Hydro Electric Commission v Newland & Anor [1965] Tas SR 189. Although the court was there discussing a report in a Civil case, it is my opinion that there is no distinction between Civil and Criminal cases in this respect. At p193 of Newland’s case, Crisp J said this:
“The second case where it is obvious that there would be great advantage to an appellate court in having such a report is where for some other reason external to the evidence it is feared that the trial has miscarried. This may be something to do with the conduct of the trial or the conduct of the parties, or the conduct of the jury.”
In my opinion, therefore, if a trial judge is in a position to report as to facts which occurred during the course of the trial taking place in his court, he is recognised by the law as being in a position to state as a matter of evidence what those facts were. He does not do this on oath, nor by doing it does he render himself subject to cross–examination. For these reasons no doubt his report is not conclusive. Nonetheless it has evidentiary value according to its apparent worth to the appellate court. See The King v Storer (supra); The King v Rice [1927] Crim App R 21 at 23.
It is plain from the decision of the Full Court of Victoria in The Queen v Demirok [1976] VR 244 that even though a trial judge may have correctly exercised a discretion in relation to the facts of a case as were known to him at the time he was called upon to exercise that discretion subsequent events may nonetheless demonstrate that a miscarriage of justice has occurred in the trial. It is plain also therefore that if the trial judge were unaware of circumstances which could lead to a miscarriage of justice when he exercised his discretion, the trial could be subsequently vitiated. It is, of course, a fundamental rule of fairness in the conduct of any criminal trial that the prior bad record of an accused person is not admissible against him unless he had brought character into issue by attacking the character of prosecution witnesses or by giving evidence of his own good character. Normally the giving of any evidence of this kind except in these exceptional circumstances will lead to a discharge of the jury. However, it is well recognised that the trial judge has a discretion in this respect and although normally he would exercise that discretion in favour of discharging the jury if defence counsel were to ask him to do so, it is not incumbent upon him to take that course if defence counsel wishes the trial to proceed.
In the instant case the trial judge granted an adjournment to enable defence counsel to consult with his client about this matter. Upon resumption of the trial defence counsel said that he had no application to make. In my opinion this was a clear invitation to the trial judge to continue the trial. There may be many reasons, of course, why a defence counsel wishes a trial to continue in such circumstances and it is not for us to speculate as to what those reasons may have been in the present case. It is apparent, of course, that defence counsel through inexperience or foolhardiness may expose his client to a greater risk of conviction by electing to proceed with the trial than by seeking a discharge of the jury, but in my opinion it is only in exceptional cases that this court should interfere if experienced counsel has taken instructions and made a considered decision to proceed with the trial. Furthermore, if this has been done it seems to me that it is not thereafter competent for an accused person to maintain that his trial has miscarried unless he can show that his counsel has acted contrary to instructions or that subsequent events at the trial either of themselves or in conjunction with the inadmissible evidence have resulted in a situation in which a miscarriage is manifest. In the present case the appellant was represented by experienced counsel. It is not suggested that counsel acted contrary to instructions and I have found as a matter of fact that the alleged incident with the juror at the jury room door did not occur. Consequently I have reached the conclusion that the verdict should stand and that the appeal and application for leave to appeal should be dismissed. As was said in The Queen v Sarek [1982] VR 971 per McInerney J at 982:
“Where an accused person at his trial has been defended by a legal practitioner, a Court of Criminal Appeal will attach great significance to the deliberate decision of that practitioner as to the conduct of the trial and the defences taken at the trial and it will be very reluctant to substitute its judgment for that of the practitioner who appeared for the accused at the trial. … In most cases the appellate tribunal will not seek to go behind a deliberate decision taken at the trial by a solicitor or counsel for the accused or even by the accused himself. Nevertheless the fundamental question must always be whether the conviction involves or has brought about a miscarriage of justice.”
It seems to me that the facts of each case must be carefully considered in reaching a conclusion on an issue such as this. In Sarek‘s case there had been a cross–examination of the accused by Crown counsel as to prior convictions. In such circumstances there could be little doubt that the jury would be made fully aware that the accused man had a specific criminal record. In the instant case the first reference to the accused’s character by Detective Sergeant Warren was very oblique and appears to have escaped the notice of the trial judge at the time and was not the subject of comment by defence counsel until the second incident occurred on the following day during the evidence of Detective Constable Speers. This was certainly a more direct reference from which the jury could have inferred that the accused had some past criminal history but even so there was no immediate objection taken by counsel and the trial judge wisely allowed the evidence to proceed for some time before sending the jury from the room to discuss this matter with counsel in the jury‘s absence. As a consequence, the jury’s attention was not focused upon these two errors and it may well be that the significance of the statements by the policemen was not appreciated by the jury. To me it is not entirely surprising that the defence elected to proceed with the trial. This, of course, does not in any way excuse the totally reprehensible behaviour by the two police officers concerned. However, as I have said, in the circumstances of this case I have formed the conclusion that justice did not miscarry and that the convictions should be affirmed.
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