Claudiu Moza v The Queen
[2015] VSCA 317
•25 November 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0089
| CLAUDIU MOZA | Applicant |
| V | |
| THE QUEEN | Respondent |
---
| JUDGES: | WHELAN, SANTAMARIA and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 November 2015 |
| DATE OF JUDGMENT: | 25 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 317 |
| JUDGMENT APPEALED FROM: | DPP v Moza (Unreported, County Court of Victoria, Judge Gamble, 27 March 2015) |
---
CRIMINAL LAW – Leave application – Conviction – Recklessly causing injury – Empanelment procedure – Whether jury verdict unreasonable – Competence of counsel – Application for leave to appeal refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Crown | Ms F Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
WHELAN JA:
In my opinion the application for leave to appeal should be dismissed for the reasons given by Kaye JA.
SANTAMARIA JA:
For the reasons given by Kaye JA, I agree that the application for leave to appeal against conviction should be refused
KAYE JA:
The applicant was convicted by the jury on his trial of one charge of recklessly causing injury. He was acquitted of the more serious charge of intentionally causing injury. After a plea hearing, he was sentenced to a Community Corrections Order for a period of nine months, with special conditions that he perform 50 hours unpaid community work, and that he undertake treatment and rehabilitation as directed.
The applicant seeks leave to appeal against his conviction on three grounds:
1The verdict of the jury is unreasonable and cannot be supported in regards to the evidence.
2 Incompetent defence representation at trial.
3 Procedural error.
The application for leave to appeal having been refused by Redlich JA, the applicant has elected to have his application heard in court.
Background
At the time of the offence, the applicant was living with the complainant, Tamara Rodriguez, and their three children, at their house in Narre Warren. The applicant and the complainant had lived together in a de facto relationship at that address for a period of seven years. They separated in August 2012, and the complainant moved out of the house for a short time. She returned to the house in
January 2013. At the time of the incident that was the subject of the charge, the complainant and the applicant were living separately under the same roof.
The incident, that was the subject of the charge, took place in the early morning of 31 January 2013. An argument occurred between the complainant and the applicant while the complainant was in the bathroom. In the course of that argument, the applicant attempted to forcefully evict the complainant from the house. During that struggle, the complainant sustained a blow to her jaw. When interviewed by the police, the applicant did not dispute that his arm might have come into contact with the complainant’s jaw, but he stated that any contact would have been accidental. The complainant sustained pain to her jaw, and she was conveyed by ambulance to the emergency department of Casey Hospital. She was attended by Dr Alan Chung Yan Au, who formed the view that she had sustained a subluxation of the temporal-mandibular joint. Under anaesthetic he enlocated the joint, and the complainant was discharged from hospital on the same day.
Before summarising the evidence, and dealing with grounds 1 and 2, it is convenient, first, to consider ground 3.
Ground 3
Ground 3 is concerned with the method by which the applicant was arraigned at the commencement of the trial. The applicant’s contention is that on the arraignment he was not formally asked whether he ‘pleaded’ guilty or not guilty to the charge, and that accordingly the procedures stipulated by s 215 of the Criminal Procedure Act 2009 were not complied with. That section provides:
(1) An accused is arraigned when the court —
(a)asks the accused whether the accused is the person named on the indictment; and
(b) reads out each charge on the indictment and asks the accused whether the accused pleads guilty or not guilty to the charge.
The form of the arraignment of the applicant was the subject of some debate, instigated by the applicant, at the commencement of his trial. On the first day, counsel for the applicant informed the judge that the applicant had told him that he would not plead guilty or not guilty, and that he wished instead to make a statement. The hearing was stood down, so that counsel could discuss the matter further with the applicant. When the hearing resumed, counsel told the judge that his instructions had been withdrawn, and that he understood that the applicant’s objection to the arraignment process related to the power of the prosecution to bring charges against him.
After counsel withdrew, and after some further discussion, the judge raised with the applicant his concerns about being asked to plead either guilty or not guilty to the charge. The applicant responded that he was not in a position to plead, and that he wished to make a statement, because the allegations against him were ‘completely ridiculous’. During further discussion, the applicant stated that he objected to the word ‘plead’, because it put him in a ‘begging position’. He stated ‘…I would have to be an absolute idiot to plead when I’m equal to every single person in this room based on my innocence’.
During that discussion, the judge, displaying commendable patience and forbearance, sought to explain to the applicant the arraignment process, including the requirement that he state whether he pleaded ‘guilty’ or ‘not guilty’. The applicant responded that he objected to that process, because ‘it binds me in a contract with the legal system’. The judge explained to the applicant that he was not being asked to enter into any contract, but the applicant remained obdurate in his position.
Finally, the judge informed the applicant that he would be asked whether he pleaded guilty or not guilty to the charge, to which he could answer by stating ‘guilty’ or ‘not guilty’. The applicant again responded that he did not wish to enter into a contract. The judge told the applicant that he would not be permitted to answer the question in that way, or to make a speech to the jury.
Following that discussion, counsel for the prosecution raised with the judge some unrelated legal matters. The case was then adjourned for the day. On the following day, counsel was re-engaged by the applicant. After another unrelated legal matter had been attended to, counsel informed the judge that it was agreed that rather than the word ‘plead’ or ‘plea’ being employed, the applicant would be asked ‘how say you Claudiu Moza, are you guilty or not guilty?’
Immediately after that discussion, and after the luncheon adjournment, the jury was empanelled and the applicant was arraigned. The transcript does not reveal the precise form of words that were used. However, it is common ground that the associate to the trial judge used the form of words that had been agreed, and to which I have just referred.
As I stated, the third ground of appeal is based on the proposition that the arraignment process was invalid, because the applicant was not formally required to state whether he ‘pleaded’ that he was guilty or not guilty to the charge.
There is no substance to that proposition. The process that was used in the case, by asking the applicant to say whether he was guilty or not guilty, properly complied with the process stipulated in s 215(1)(b) of the Criminal Procedure Act, in that the applicant was asked whether he pleaded guilty or not guilty, and by his response the applicant pleaded not guilty to the charge. Section 215(1)(b) does not require, in all cases, that the word ‘plead’ be used, particularly where, in a case such as this, the applicant consistently obstructed the employment of the usual formula of words which literally comply with s 215(1)(b). The process unequivocally involved the applicant entering a plea of not guilty to the charges brought against him. Accordingly, ground 3 of the application must fail.
The evidence
As a prelude to considering grounds 1 and 2, it is convenient, first, to briefly summarise the evidence at trial.
Three witnesses were called on behalf of the prosecution, namely, Tamara Rodriguez, Dr Au, and the informant, Senior Constable Mark Muckley.
Tamara Rodriguez stated that on the day of the incident, 31 January 2013, she was at her home in Narre Warren with her two daughters, Eliana and Sophia, together with the applicant. Sophia was then one year of age. Ms Rodriguez was in the bathroom. The applicant was holding Sophia in his arms. The applicant told her that she needed a ‘root canal’, because she was ugly on the inside. She responded that she would get her boyfriend to do so.
The applicant then became angry and said that Ms Rodriguez should ‘get the fuck out of my house now’. At that stage Ms Rodriguez was not sure whether the applicant had Sophia in his arms. However, he grabbed Ms Rodriguez by the arm and dragged her out of the bathroom. She ran into the lounge room living area, but then proceeded back into the bathroom. Again, Ms Rodriguez could not recall whether, at that stage, the applicant had Sophia in his arms. However, he grabbed Ms Rodriguez ‘under the rib, under the arms’, and dragged her through to the front door and threw her against the security door. Again, Ms Rodriguez went back into the bathroom. The applicant kept saying ‘get the fuck out of my house now’, to which she responded ‘no you can wait until I finish getting ready’. Ms Rodriguez stated that Sophia was then in the applicant’s arms again on his left hand side, and that the applicant elbowed Ms Rodriguez in the face.
The prosecutor then asked Ms Rodriguez some questions to clarify the account that she had given. Ms Rodriguez stated that when the applicant grabbed her arm for the second time, she accidentally hit Sophia on the arm or on the hand. Thereupon, the applicant got really angry, put Sophia down, and elbowed Ms Rodriguez in the face. She said that the part of his arm that struck her was between the point of the elbow and the middle of his forearm. When asked to demonstrate the action of the applicant in striking her, she described a ‘chicken wing’ type of movement by the applicant towards her. She said that immediately before he performed that action, the applicant and she were standing less than one metre apart.
Ms Rodriguez stated that as a result of the blow, she became dizzy and felt instant pain and some numbness. Her jaw felt like it had locked and she could not move it. She telephoned the police, who arranged for the ambulance to attend. Ms Rodriguez was taken to the Casey Hospital where she was treated. She said that after that treatment, the pain improved, and she was able to move her jaw normally. She recalled being given some ‘gas’ (anaesthetic), and the doctor manipulating her jaw while she was sedated.
In cross-examination, Ms Rodriguez confirmed that her recollection was that the applicant put Sophia on the ground before he struck Ms Rodriguez. She confirmed that she had made a statement to the police on 31 January 2013, which she had attested was true, and in which she stated that the applicant was holding Sophia in his arm when he struck her with the elbow to the jaw. Ms Rodriguez also agreed that at the committal proceeding, she gave evidence to the same effect. She said that that evidence at the committal, and that part of her statement, were a ‘mistake’. She said that she now corrected her memory, and that she was now ‘pretty sure’ that the applicant did not have Sophia in his arm when he struck her.
In cross-examination, counsel put to Ms Rodriguez that after she had accidentally struck Sophia, the applicant turned his body to the left side so as to protect Sophia, but that movement accidentally resulted in contact between his elbow and the complainant’s face. Ms Rodriguez disagreed with that suggestion. Counsel also put to Ms Rodriguez that she was exaggerating when she stated that her jaw had locked. Ms Rodriguez rejected that proposition.
Dr Au gave evidence that he examined Ms Rodriguez at the Casey Hospital shortly after 8.00 am on 31 January 2013. He noted four circular bruises to the left front and side of her thigh that looked like the tips of fingers. He found that the complainant was not able to make a proper bite, and she also had trouble completely opening her mouth because of pain. She was only able to open her mouth sufficiently to enable Dr Au to put one finger into her mouth.
On x-ray examination, Dr Au could not detect any obvious fracture, or any dislocation of the temporal mandibular joint. However, as Ms Rodriguez still complained of significant pain and inability to move her jaw, he considered that there was a possibility that there was a subluxation, or partial dislocation, of the joint. He said that the x-ray equipment that was available was not a good form of investigation for suspected dislocations or subluxations. It did not disclose either such injury in this case.
Accordingly, Dr Au decided to examine the complainant under anaesthetic, consisting of nitrous oxide, and to try to enlocate the jaw (that is put it back into place). As a result of the sedation, the complainant was sufficiently relaxed to enable the doctor to manipulate the jaw so as to enlocate it. In doing so, he did not feel the typical ‘click’ that is associated with the dislocation, so that the most likely diagnosis was a subluxation. He said that in the case of a subluxation, sometimes a click is detected, but on other times it is not. After the complainant’s sedation wore off, she immediately remarked on the substantial improvement of her pain. On examination, she had regained her capacity to bite and to open her mouth.
In cross-examination, Dr Au agreed that it is not possible to objectively test the performance of a patient, who reports an incapacity to either bite or open the mouth. However, he considered that the complainant’s expressions and behaviour were consistent with her complaint of pain. He reiterated that, ordinarily, a click is detected if there has been a dislocation that is enlocated, but that a click might (but not must) be detected on enlocating a subluxation. Dr Au stated that the significant improvement in the complainant’s symptoms, after he performed the enlocation, was consistent with a diagnosis of subluxation that was successfully reduced under anaesthetic.
In re-examination, Dr Au was asked whether he considered that the complainant had been feigning her injury. He responded that he believed the complainant, because she behaved like someone who did have pain, and he had seen enough patients with severe pain for him to determine that she was genuinely complaining of pain, and was not someone who was seeking drugs or trying to ‘put on a show’. Dr Au also explained that the x-rays did not investigate soft tissue injuries, so that they would not reveal whether the muscles or ligaments supporting the temporal mandibular joint might have been partially torn. In those circumstances, the bones of the jaw might have been moving in and out of the joint, which meant that the x-ray might have been taken at a time when momentarily the bones were back in place.
The final witness for the prosecution was the informant, Senior Constable Mark Muckley. Constable Muckley conducted a recorded interview with the applicant at 9.05 am on 31 January. In the course of the interview, the applicant stated the following:
·After a verbal argument with the complainant, he asked her to leave. She refused. So he tried to pick her up and take her out. He carried her to the front door and she then asked if she could fetch her telephone. He let her go back in to get her telephone. She then refused to leave saying that it was her house also. He said that on the first time that he picked her up, he grabbed her around the leg, because he was trying to avoid any contact with her head.
·The interviewer then put to the applicant that Ms Rodriguez had alleged that he had elbowed her in the side of the jaw. He responded:
If I elbowed her it wasn’t intentional to elbow her. I had no intention of hurting her whatsoever especially in a physical way. I just wanted her — I just didn’t want her there … I remember that I had Sophia in my arms and then … I think she might have, when she was pushing me she slipped and might have touched Sophia’s face or something, … so I put her (Sophia) down. That’s right. That’s when I probably grabbed her and tried to force her — to pick her up and put her out. I didn’t really — I didn’t elbow her. It might have happened against the — trying to get her out but I didn’t elbow her deliberately.
·The applicant confirmed that the incident happened in front of the shower in the bathroom. He stated that he put Sophia down and then went to take Ms Rodriguez out.
·It was put to the applicant that, after Ms Rodriguez accidentally hit Sophia, the applicant was angry, as a consequence of which he elbowed Ms Rodriguez in the face. The applicant responded ‘that’s completely false’. He said that he had tried to avoid having Ms Rodriguez in a headlock, he just wanted to grab her and get her outside the house.
Ground 1
The applicant relies on three principal contentions to support ground 1, that the verdict of the jury was unreasonable and could not be supported having regard to the evidence.
First, the applicant relies on the inconsistency between the evidence given by Ms Rodriguez at trial, on the one hand, and the contents of her statement and the evidence that she gave at the committal hearing, as to whether the applicant was holding Sophia in his arm at the time that he struck Ms Rodriguez. The applicant concedes that the position of Sophia at that point is not critical, but, he contends, the change in Ms Rodriguez’s evidence, from the account that she gave in her statement and in the committal proceeding, demonstrated that at the trial she was seeking to enhance her version of the events in order to strengthen the prosecution case.
Secondly, the applicant has submitted that there was no objective (‘concrete’) evidence that Ms Rodriguez had suffered an injury. He pointed out that the tests conducted by Dr Au relied on the subjective complaints made by Ms Rodriguez as to the pain that she suffered and the lack of function of her jaw. No injury was demonstrated by the radiological examination. Nor was Dr Au able to detect a ‘click’ when he enlocated the jawbone under anaesthetic. The applicant contends that the evidence of Dr Au, that the complainant had sustained a subluxation of the jaw, was misleading, as it was not supported by any objective evidence. The applicant was critical of the evidence, by Dr Au in re‑examination, that he considered that Ms Rodriguez was genuine in her complaints of pain and injury. He was also critical of the use by Dr Au of the term ‘enlocate’ in describing the procedure that he performed in respect of Ms Rodriguez.
Thirdly, the applicant has submitted that there was a necessary inconsistency in the verdicts of the jury, in that the jury had acquitted him of the charge of intentionally causing injury, but nevertheless convicted him on the charge of recklessly causing injury. The applicant pointed to the evidence of Ms Rodriguez which, he submitted, described a deliberate action by him in striking her to the jaw. He submitted that the jury must have rejected that account in order to acquit him of the charge of intentionally causing injury. Thus, he submitted, the jury could not have reasonably found him guilty of the alternative charge of recklessly causing injury.
In response, counsel for the respondent has submitted that the fact that Ms Rodriguez’s evidence was inconsistent, in the respect relied on by the applicant, does not mean that the jury could not have otherwise been satisfied beyond reasonable doubt as to the substance of her evidence. Further, it was submitted, that there was substantial evidence to support the jury verdict that the complainant had suffered injury. That evidence consists of the evidence of Dr Au, and also the complaint of pain described by Ms Rodriguez. Counsel for the respondent submitted that the evidence of Dr Au was not confusing or misleading. Dr Au stated that the x-rays were inconclusive. While, in the case of a dislocation, it is usual to feel a click when the jaw is enlocated, that does not necessarily occur in the case of a subluxation. Further, counsel contended that the critical difference between the verdicts on charges 1 and 2 related to the finding by the jury as to the applicant’s state of mind at the time at which his forearm came into contact with Ms Rodriguez’s jaw. While the jury was not satisfied, beyond reasonable doubt, that the applicant intended to cause injury to the complainant by striking her with his forearm, nevertheless it was satisfied beyond reasonable doubt that, in performing that action, he knew that it was probable that the complainant would suffer injury as a consequence.
The first ground is brought under s 276(1)(a) of the Criminal Procedure Act 2009, which requires this Court to allow an appeal if the court is satisfied that the verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’.
The principles, that apply to such a ground, have been restated in a number of cases following the decision of the High Court in M v R.[1] In order to establish the ground, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charge on which he was convicted.[2] It is not sufficient merely to show that there was material which might have led the jury to entertain a reasonable doubt about the applicant’s guilt.[3] In considering that question, it is important to take into account the substantial advantage enjoyed by a jury in seeing and hearing the evidence as it is being given in the atmosphere of the trial, which is an advantage not shared by the Court of Appeal when reviewing the verdict of a jury.[4]
[1](1994) 126 ALR 325.
[2]Ibid, 493–4.
[3]Ibid, 492–3; Libke v The Queen (2007) 230 CLR 559, 556–7 [113] (Hayne J); SKA v The Queen (2011) 243 CLR 400, 405 [11]–[14] (French CJ, Gummow and Keifel JJ).
[4]Klamo v The Queen (2008) 18 VR 644, 653–4 [38]–[40] (Maxwell P).
In the present case, as the applicant himself has conceded, the fact that there was an inconsistency in the evidence of Ms Rodriguez, as to whether the applicant was holding Sophia in his arms when he struck her, was not of such moment as to preclude the jury from being satisfied beyond reasonable doubt of the evidence given by Ms Rodriguez, as to the circumstances in which the applicant’s forearm came into contact with her jaw. Ms Rodriguez was cross‑examined thoroughly, and competently, in respect of that issue, and in relation to the evidence that she gave concerning the circumstances of the incident. The jury had the advantage of observing Ms Rodriguez, in evidence-in-chief, and in cross‑examination.
In addition, the evidence of Ms Rodriguez, that the applicant had put Sophia on the ground before he struck her, is, in that respect, consistent with the account given by the applicant to the police. In the interview, the applicant said that, after Ms Rodriguez ‘touched Sophia’s face’, he put Sophia down and tried to force Ms Rodriguez out of the house, and that, in the process of doing so, he might have unintentionally elbowed Ms Rodriguez. It was open to the jury to consider that that concession, by the applicant in the interview, lent weight to the evidence given by Ms Rodriguez that Sophia was on the ground when contact was made, notwithstanding that she had twice previously given a different account.
For those reasons, I do not consider that it is reasonably arguable that the inconsistency, in respect of the aspect of the evidence of Ms Rodriguez relied on by the applicant, was of such consequence as to have required the jury to be not satisfied beyond reasonable doubt of the evidence of Ms Rodriguez relating to the circumstances in which the incident occurred.
There is no substance in the point sought to be made by the applicant that it was not open to the jury to be satisfied, beyond reasonable doubt, that the complainant did suffer injury for the purposes of the charge on which it convicted the applicant for two reasons. First, the jury was entitled to accept the evidence of Dr Au that he detected that Ms Rodriguez had sustained a subluxation of her jawbone. Dr Au explained that such an injury (and indeed a dislocation) might not have been able to be demonstrated by the radiology that was available at that time at Casey Hospital. He further stated that it was not necessary that he detect a ‘click’, in order to be able to diagnose that there had been a subluxation of the jawbone. Dr Au’s diagnosis was based on the marked difference between, on the one hand, the level of pain felt by the complainant, and the lack of function of her jaw, before the procedure was performed, as compared with, on the other hand, the significant improvement in her level of pain, and the recovery by her of her jaw function, after he performed that procedure. It is clear from Dr Au’s evidence that it was that fact which, substantially, formed the basis of his diagnosis. There is nothing unreasonable or inconsistent in the diagnosis which required the jury to reject it.
In addition, at the time of the offence, ‘injury’ was defined by s 15 of the Crimes Act 1958 as follows:
Injury includes unconsciousness, hysteria, pain and any substantial impairment of bodily function.
The jury was entitled to accept the evidence of the complainant, and Dr Au, that the complainant was (at the least) suffering pain as a result of being struck in the jaw by the applicant’s forearm. Accordingly, it was open to the jury to be satisfied beyond reasonable doubt that the complainant had suffered pain as a result of that blow, sufficient for the purposes of the alternative charge of recklessly causing injury.
The third matter relied on by the applicant, in relation to ground 1, comprises what the applicant appears to contend is an inconsistency in the verdicts of the jury by which it acquitted him of the first charge (intentionally causing injury), but convicted him of the second alternative charge (recklessly causing injury).
In order to convict the applicant of the more serious charge, the jury was required to be satisfied beyond reasonable doubt that, at the time at which his forearm struck Ms Rodriguez’s jaw, he intended to cause her injury. On the other hand, in order to convict the applicant of the second charge (recklessly causing injury), the jury was required to be satisfied beyond reasonable doubt that, at that time, the applicant was aware that his conduct would probably cause injury to Ms Rodriguez.[5] It is clear that, by its verdicts, the jury was satisfied beyond reasonable doubt that the action performed by the applicant, whereby his forearm struck the jaw of Ms Rodriguez, was deliberate. In addition, the verdicts demonstrate that, although the jury was not satisfied beyond reasonable doubt that the applicant, by that action, intended to cause Ms Rodriguez injury, nevertheless the jury was satisfied beyond reasonable doubt that, in performing that action, the applicant was aware that his conduct would probably result in injury to Ms Rodriguez. Thus, there was no inconsistency, or tension, between the verdicts of the jury.
[5]R v Crabbe (1985) 156 CLR 464, 469–70 (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ); R v Campbell [1997] 2 VR 585, 592–3 (Hayne JA, Crockett AJA); Paton v The Queen [2011] VSCA 72, [45]–[49] (Tate JA).
For those reasons, the applicant has not demonstrated that it is reasonably arguable the verdict of the jury was unreasonable, or that it could not be supported having regard to the evidence. Accordingly, ground 1 of the application must fail.
Ground 2
Ground 2 of the application is entitled ‘Incompetent defence representation of counsel’, and alleges:
The defence representation failed horribly to present the case of a self‑defence situation even when question [sic] by the judge if that was the case or not after alluding to it being so throughout the entirety of questioning the complainant.
In his written and oral submissions, the applicant broadened the scope of ground 2, and relied on three aspects of his representation by counsel at trial.
First, the applicant submitted that the representation of him by counsel was incompetent, because it failed ‘to present the case of a self‑defence situation’. In his written case he submitted that throughout the cross‑examination of Ms Rodriguez, defence counsel failed to address the proposition that the contact by the applicant’s forearm with the complainant was
… an instant reaction of protecting one’s face from the barrage of blows being received from the claimant.
It was submitted that defence counsel failed to address that prospective defence, notwithstanding that he had been questioned by the judge as to whether the issue of self‑defence was being raised.
Secondly, the applicant submitted that his counsel had been incompetent by failing to object to the evidence given by Dr Au, in re‑examination, that he was capable of recognising patients who present with genuine symptoms of pain and the like and patients who, on the other hand, are faking their symptoms.
The third matter, relied on in support of ground 2, was that the applicant’s counsel persuaded him not to give evidence and to rely on his record of interview. In his written submissions, the applicant stated that he had informed counsel that because the interview took place immediately after the incident, the interview did not reflect his version of events to the best of his recollection, because he was then:
… faced with the reality of being arrested for the first time ever and concerned of the state of one’s children.
In response, counsel for the respondent pointed out that, in order to establish ground 2, the applicant must demonstrate that there has been a miscarriage of justice arising out of the conduct of his counsel.[6] It was submitted that the decision by defence counsel not to raise self‑defence was reasonable, as there was no evidence that the applicant had acted in self‑defence to protect either himself or his daughter at the time that he elbowed the complainant in the face. In particular, it is pointed out that the applicant did not give evidence, nor was the issue of self‑defence raised in the interview that was conducted with him by the police.
[6]See TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 80 ALJR 614.
It was further submitted that the complaint made about defence counsel’s failure to object to Dr Au’s evidence is without foundation. The doctor was qualified by his expertise to give opinion evidence as to whether, in his opinion, the complainant had exaggerated or fabricated her symptoms.
In considering an appeal, or application for leave to appeal, based on a ground alleging incompetent representation by counsel, the question is not whether the representation by the applicant at trial by counsel was incompetent, but whether, as a result of counsel’s conduct, there has been a miscarriage of justice.[7] Where it is alleged that the conduct of counsel consists of an action, or omission, calling for explanation, ordinarily the appellate court does not take into account any explanation for that conduct, or omission, given by counsel. Rather, the question is whether, objectively, there could be a reasonable explanation for such conduct.[8]
[7]TKWJ v The Queen (2002) 212 CLR 124, 131 [17] (Gleeson CJ), 133 [25] (Gaudron J), 149 [79] (McHugh J); Nudd v Queen (2006) 80 ALJR 614, 618 [8] (Gleeson CJ), [158] (Callinan and Heydon JJ).
[8]TKWJ v The Queen (2002) 212 CLR 124, 133 [27] (Gaudron J), 158–9 [107]–[109] (Hayne J); Nudd v R (2006) 80 ALJR 614 , [27] (Gummow and Hayne JJ), [157] (Callinan and Heydon JJ); Knowles v The Queen [2015] VSCA 141, [131] (Ashley, Redlich and Priest JJA).
In considering that question, the court takes into account that, in the ordinary course of a criminal trial, counsel is commonly called upon to make difficult, and often spontaneous, tactical decisions which, subsequently, may not achieve the result desired.[9] In TKWJ v R,[10] Gleeson CJ stated:
… 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.[11]
[9]TKWJ v The Queen (2002) 212 CLR 124, 130–131 [16] (Gleeson CJ), 132 [24] (Gaudron J), 159 [111] (Hayne J).
[10]Ibid.
[11]Ibid, 130–131 [16].
In the present case, there was clearly a rational reason why counsel would not have presented a case of self‑defence to the jury, as it would have been entirely inconsistent with the contents of the applicant’s record of interview. The applicant did not tell the police, in any terms, that he had been subjected to a number of blows by Ms Rodriguez. Further, when it was put to him that Ms Rodriguez had alleged that he had elbowed her in the jaw, the applicant’s response was not that he had raised his arm in an instinctive defensive reaction to such conduct of Ms Rodriguez. Rather, the applicant told the police that if there was any such contact, it was unintentional contact in the course of his attempt to physically remove the complainant from the house. In specific terms he said, ‘… I probably grabbed her and tried to force her…to pick her up and put her out…I didn’t elbow her deliberately’.
That response by the applicant, in his record of interview, was inconsistent with any suggestion that he was acting in self‑defence, or in defence of Sophia, when his forearm made contact with Ms Rodriguez’s jaw. In the absence of any evidence by the applicant, there was no evidence to put to the jury of the possibility that the applicant had been acting in self‑defence. Any suggestion to that effect, in cross‑examination, would have undermined the line of cross‑examination, undertaken by counsel, which was directed to establishing that any contact, that the applicant had made with the complainant’s jaw, was accidental.
Further, and related to that, it is readily understandable why counsel might have advised the applicant against giving evidence at the trial. If the applicant gave evidence by which he sought to alter the account that he had given to the police, his credit would have been vulnerable to damaging attack. Such a change in the account, given by the applicant, would have been open to the criticism that the applicant was thereby endeavouring to improve or bolster his position. It is understandable in those circumstances that counsel might well have apprehended that the better case was to rely on the account given spontaneously by the applicant to the police shortly after the incident, rather than to have the applicant exposed to cross-examination, in evidence, which would inevitably target any difference between the evidence given by the applicant in the trial and the account that he had given to the police.
Decisions by defence counsel, as to whether or not to call the accused to give evidence, are always difficult, and a decision either way is fraught with risk. Generally, such a decision is based on counsel’s subjective impression of the capabilities of the client to successfully withstand cross-examination, and of the potential credibility of the client, in the context of the issues as they have developed in the trial. Having read and reviewed the transcript of the trial, it could not be maintained that advice given by defence counsel, in this case, that the applicant not give evidence, was unreasonable, or not susceptible of a reasonable and appropriate explanation.
Finally, there is no substance in the contention that counsel should have objected to the evidence given by Dr Au, in re‑examination, that he considered that Ms Rodriguez’s complaint of pain and disability to have been genuine. Ms Rodriguez had been cross‑examined by counsel with a view to persuading the jury that she had been feigning or exaggerating her injuries. Dr Au was also cross‑examined by counsel to the same effect. In particular, it was put to him that there was no objective basis upon which the doctor might have assessed the credibility of the complaints of injury and disability made by Ms Rodriguez. Thus, the question asked of Dr Au, in re‑examination, was relevant and appropriate. It was well within the doctor’s expertise, as established by evidence, for the doctor to express a view as to whether or not he considered that the patient’s complaints of pain and disability were genuine.
Thus, I do not accept any of the bases upon which it is alleged in this case that counsel’s conduct was incompetent, as a result of which there has been a miscarriage of justice.
I should add to the foregoing that, having read the whole of the transcript of the trial, I am satisfied that defence counsel conducted the trial in a competent and proper manner. His cross‑examination of Ms Rodriguez, and of Dr Au, was methodical, relevant and competent. Although we have not been provided with a transcript of counsel’s final addresses, the judge, in his directions to the jury, summarised them. The judge’s summary of defence counsel’s final address demonstrated that counsel did direct the jury to the relevant matters. The summary indicated that the final address by counsel was orderly, relevant and persuasive. In oral submissions to this Court, the applicant acknowledged that, apart from the matters referred to by him in his written case, he had been well represented by counsel at trial.
For those reasons, the applicant has failed to establish that it is reasonably arguable that there was a miscarriage of justice arising from his representation at trial. Accordingly, ground 2 of the application should fail.
Conclusion
For the foregoing reasons, I do not consider that any of the three grounds of the application relied on are sufficiently arguable to warrant the grant of leave to appeal. Accordingly, the application for leave to appeal against conviction should be refused.
- - -
0
11
0