Clee v R

[2009] NSWCCA 18

New South Wales
Court of Criminal Appeal

CITATION:	Robert Clee v R [2009] NSWCCA 18
HEARING DATE(S):	24 September 2008
JUDGMENT DATE:	17 February 2009
JUDGMENT OF:	Beazley JA at 1; Hislop J at 2; Harrison J at 56
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – conviction appeal – competence of counsel – directions to jury – rule 4.
LEGISLATION CITED:	Crimes Act, 1900 Criminal Appeal Act, 1912 Criminal Appeal Rules Evidence Act
CATEGORY:	Principal judgment
CASES CITED:	Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1 Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 R v Birks (1990) 19 NSWLR 677 Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576 TKWJ v R [2002] HCA 46; (2002) 212 CLR 124
PARTIES:	Robert Joseph Clee (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/3200
COUNSEL:	In person (Appellant) P Miller (Respondent)
SOLICITORS:	Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/0305
LOWER COURT JUDICIAL OFFICER:	Knox SC
LOWER COURT DATE OF DECISION:	08/06/07

2007/3200

BEAZLEY JA
HISLOP J
HARRISON J

17 FEBRUARY 2009

ROBERT CLEE v R

Judgment

1 BEAZELY JA: I agree with Hislop J.

2 HISLOP J:

Introduction

This is a conviction appeal. The grounds of appeal contained in the notice of appeal are:

“1. The conduct of counsel in raising the issue and adducing evidence of the appellant’s criminal convictions and bad character gave rise to a miscarriage of justice.
2. His Honour’s failure to direct the jury about the permissible uses of the evidence of the appellant’s criminal convictions gave rise to a miscarriage of justice.
3. His Honour’s summing up involved a factual error which gave rise to a miscarriage of justice.”

3 The appellant was charged on indictment on the following counts:

Count 1
“On 8 July 2005 at Parramatta being in the dwelling house of [the complainant] he did commit a serious indictable offence therein, namely, intimidation and did break out of that dwelling house in circumstances of aggravation, namely, he was in company with [another]”, contrary to the Crimes Act , 1900 s 112(2); and, in the alternative
Count 2
“On 8 July 2005 at Parramatta he did enter the dwelling house of [the complainant] with intent to commit a serious indictable offence, namely to intimidate, in circumstances of aggravation, namely he was in company with [another]”, contrary to the Crimes Act ,1900, s 111(2).

The appellant pleaded not guilty to each count.

4 During the course of the trial, the Crown withdrew count 1 and on 13 December 2006 the jury returned a verdict of guilty on the statutory (s 115A) alternative to count 2, namely that the appellant entered the dwelling house of the complainant with intent to commit a serious indictable offence, namely to intimidate, contrary to the Crimes Act, 1900, s 111(1). The maximum penalty for that offence is 10 years imprisonment.

5 On 8 June 2007 the appellant was sentenced in respect of that offence to two years six months imprisonment with a non parole period of 20 months commencing on 4 December 2006. The non parole period expired on 3 August 2008. The appellant has been released to parole.

The evidence

6 The complainant resided in Unit 28 of a block of units. The appellant frequently stayed at the block of units with a friend who lived in Unit 18.

7 The evidence in the Crown case is shortly summarised hereunder:

The complainant

8 The complainant gave evidence that:

(a) On Monday 4 July 2005 the appellant made a complaint to him about the level of noise being made by him. The complainant said that he was soon leaving the block of units, to which the appellant replied “Good riddance”.

(b) On the evening of 8 July 2005, the complainant heard a banging on his front door. He opened the door 20-30 cms. The appellant and another man were there. The appellant said “We had a discussion about the noise complaints before”. The appellant pushed the door, leaned in and head butted the complainant, his lips touched the complainant’s. The complainant said “What are you doing, are you trying to kiss me?” The appellant then pushed the front door open and grabbed the complainant and pushed him back against the wall which was a distance of about 3-4 metres. The complainant was pressed up against the wall.

(c) The appellant said that he was going to kill the complainant with a syringe of coke. He grabbed the complainant’s head, he pushed his head into the brick wall. The appellant hit the complainant’s head, he went to do it a second time. The complainant blocked it with his hand. The appellant was pointing his finger at the complainant, almost poked him in the eye with his index finger. The appellant walked back to the front door to close it but left it just ajar approximately 5 cms. The appellant said he was in charge of all the drugs in Kings Cross and said ‘Do you know who I am?’ His friend was saying ‘Don’t tell him’. The appellant was becoming very aggressive.

(d) The complainant said he did not give permission to the appellant to enter his unit. He said to the appellant: “Get out of my house, what are you doing, get out of my house.”

(e) The complainant suffered a cut just above his cheek and a few lumps, no bruising.

(f) The complainant denied consuming or selling drugs to anyone on the premises and denied that he had been charged with any drug offences. In cross examination he admitted he had taken drugs but not during the first half of 2005. He denied the appellant had had a conversation with him in February 2005 about the supply of drugs from unit 28.

Mr and Ms Baudemont

9 (a) Mr and Ms Baudemont resided at Unit 26. Mr Baudemont gave evidence that on the night of 8 July 2005 he heard a very loud knocking on the door of the complainant’s unit. He opened his door and saw the complainant open his own door and the appellant grabbing the complainant by his t-shirt and pushing him inside the unit. He heard the complainant say to the appellant “Get the fuck out of my house”. He saw the appellant punch the complainant.

(b) In cross examination he elaborated on this answer and said he didn’t actually see a punch, he saw the appellant’s arm moving forward and saw the complainant’s head flicking back and heard the complainant say “What did you do that for?”

(c) In cross examination, Mr Baudemont said that he saw inside the flat the appellant holding the complainant by the neck against the wall and they were speaking loudly and arguing. He said the wall was about two metres away from the door and that he had a clear view of this incident.

(d) Ms Baudemont gave evidence that she noticed the man from Unit 18 was knocking or banging the door very loud at unit 28. She asked her brother to “Stay in and close the door”. She then began looking through the peep hole and saw the man from unit 18 pushing the complainant inside the unit and she heard the complainant say “Get the fuck out of my house”. She said the man from unit 18 was with another man and she saw the other man closing the door and did not hear anything for a few minutes. She then called the police because she was afraid of what would happen to the complainant. The police arrived ten minutes later.

Peter Bilokin

10 Peter Bilokin was with Mr and Mrs Baudemont. He gave evidence he heard a loud bang and the words “Get the fuck out of my house”. He saw the appellant standing in the doorway of unit 28. That was the last thing he saw before Mr Baudemont closed the door to the unit.

Ms Michalsky

11 Ms Michalsky resided in Unit 27. She gave evidence that on the night in question she saw two men standing outside the door of unit 28. She said she saw the men, one of whom was the appellant, step into the unit “and from there I heard a lot of banging against the wall and a lot of screaming”. She said one thing that stood out to her was that she was pretty certain that the appellant shouted out “I’ll get a syringe and I’ll put it in your arm, would you like a syringe in your arm? Go get the syringe.”

Jodie Saul

12 Jodie Saul also resided in Unit 27. She said she saw the appellant arrive in the carpark that evening and come upstairs with another man. She heard somebody asking which unit to go to and they knocked on unit 28. She heard yelling outside the door to unit 28 and the door to unit 28 opened. She heard them go inside and slam the door and there was a lot of yelling and banging going on. She heard something banging on the wall. She heard mention of syringes. She heard the appellant say he “would get a needle and stick it in his arm”. She saw the appellant leave the unit and there was another man still inside. The appellant walked downstairs and came back about five minutes later. She saw the police arrive.

Constables Mooney and Ford

13 Constable Mooney gave evidence that he and Const Ford arrived at unit 28 at about 8.20 pm on 8 July 2005. He looked inside the unit and saw the complainant standing with his back pressed up against a wall. He saw the appellant standing right up against the complainant and he had his arms raised so that his elbows were bent and his arms outstretched towards the complainant. It appeared that the appellant was holding the complainant around his upper chest area. He noticed that the complainant appeared terrified. This evidence was supported by Constable Ford.

Detective Sendt

14 Detective Sendt was the officer in charge of the investigation. He attended at unit 28 at about 8.50 pm on 8 July 2005. He saw the complainant, whose hands were trembling and who had a small cut and redness to his forehead. He charged the appellant and at the time he charged him he was aware of his criminal record. He gave evidence as to his investigations.

15 The evidence in the appellant’s case is shortly summarised hereunder.

The appellant

16 The appellant gave evidence that:

(a) He was born in 1965. In 2005 he used to visit a friend who lived at the block of units. In January 2005 he had noticed unfamiliar people in the car park whom he described as “junkies”. He found some syringes in the toilet near the car park of the unit. In February 2005 he saw people walking into that toilet and injecting. He also saw people injecting in a car. He formed the opinion that the complainant was dealing in some form of intravenous drugs.

(b) He complained to the caretaker of the block of units about the presence of syringes at these locations. He also complained to the police and Parramatta Council but they were not interested in his complaints. He complained to the landlord of the block of units.

(c) In February 2005, after he had made those complaints, he confronted the complainant about the syringes. He said: “Listen you fuckin’ piece of shit, it’s like junkie central up there…What the fuck’s going on?” The complainant replied: “It’s my fuckin’ business, I’ll do what I like in my unit’. The appellant responded “Well I’ll make it my fuckin’ business when a fuckin’ child might step on a syringe.” The appellant said to the complainant “You might want to consider pulling back a bit because I’m not going to have a kid step on a syringe.” The complainant said “I’ve got a relative up at Parramatta Police Station he’s a detective so don’t worry about me, I’m tied up with big people.” The appellant then said “Well listen you fucking smart arse. I’ll video tape the faces coming up and down the stairs and I’ll walk into ICAC and play the fucking tape on the thing. You want to be a fucking smart arse, I’ll show you what a smart arse is.” The appellant went on to say “I might add I did tell him who I was.”

(d) In cross examination the Crown referred to the conversation which the appellant alleged he had had with the complainant in February 2005:


“Q. You told him who you were?
A. That’s right.

Q. Because you wanted to put fear into him, didn’t you?
A. Yes.

Q. Just like after you barged into the unit you said to him words to the effect ‘I control the drugs in King Cross. I’m going to get a needle or syringe full of heroin and stick it.’
A. I’m tied up in the building industry, I leave the drug industry to the fucking rats.”


(e) On 8 July 2005 the appellant went up to the complainant’s unit on three occasions and entered the unit on two of those occasions. He, Mr Colburn and Ms Wall had left the Granville Hotel at about 8.15 pm. The complainant’s utility was parked in Ms Wall’s car space. The appellant walked up to unit 28 and knocked loudly on the complainant’s door. This was the first visit that night. He asked the complainant: “Is that your ute down in Miss Wall’s car space?” The complainant said “Yeah. I’ve just come to clean the stove.” The appellant asked the complainant if he could move his ute out and the complainant said he was only there for ten minutes and then he’d never see him again. The appellant then said “Good”.

(f) On that occasion the appellant was standing face to face with the complainant at the door. He then walked downstairs and started peeling vegetables.

(g) Shortly thereafter the appellant walked to the opening of Ms Wall’s balcony door and saw three capped syringes and one uncapped syringe on the balcony. The four syringes were tendered as Exhibit 7. The appellant believed that the complainant was selling heroin.

(h) The appellant had a discussion with Ms Wall and said to her about the syringes: “They’d have to come from upstairs. Well, of course, there was twenty people out on the balcony last night screaming and yelling abuse at everybody.” Colburn said to the appellant “Is that guy a drug dealer upstairs?” The appellant said “Well as far as I know yes.” Colburn said to the appellant “I need to get some speed. I’ve got a twelve hour shift at work tomorrow.” The appellant told Mr Colburn in colourful terms to stay behind at Ms Wall’s unit.

(i) The appellant then went back up to unit 28 and knocked loudly on the door four times. This was the second visit and the first entry. The appellant and the complainant were standing toe to toe at the door way and the following conversation ensued:


“Appellant: Listen you fucking maggot, what’s the fucking story with the syringes on the balcony?
[Complainant]: What syringes, what are you talking about?

Appellant: Listen don’t fucking lie. The syringes on the balcony down stairs, you piece of shit. You can come and pick the fucking things up.
[Complainant]: The syringes aren’t mine. Look come inside and I’ll show you.”


(j) The appellant and the complainant walked to the complainant’s balcony, unlocked the door, the complainant asked the appellant “How could the syringes come from this balcony down to your balcony?” The appellant then asked his friend Mr Annam how many syringes were on his balcony, Mr Annam answered “Four”. The appellant then said “See there’s four fucking syringes on my balcony.”

(k) The appellant and the complainant had further words about whether the syringes came from the complainant’s balcony. The appellant asked the complainant for the keys to his car. The appellant then went and moved the complainant’s ute from Ms Wall’s car space. The appellant went back to Ms Wall’s unit and told her to move her car into her own car space.

(l) He then went back up to unit 28. This was the third visit and the second entry. The appellant said he walked in and the complainant and Mr Colburn were “talking drugs”. He said that the complainant was talking to Mr Colburn about how he might be able to get some speed for Mr Colburn.

(m) He then “walked straight up to [the complainant’s] face.” He was about 20 cms away from it. He then said to the complainant: “Why did you move the furniture out last night from eleven to four in the morning?…What was going on up here?” The complainant said “Well that was pay back to all the people that had made written noise complaints about me.” The appellant then said “and the syringes you threw on the balcony were a pay back to me, weren’t they?”

(n) He saw the police arrive at unit 28 and described a conversation with them. He made no admissions to the police.

(o) He denied that he head butted or poked or punched the complainant. He denied he banged the complainant’s head against the wall or threatened his life or threatened him with a syringe. He admitted that he was angry with the complainant.

(p) In short the appellant suggested that he had been invited into the unit by the complainant on two occasions. He said it was not his intention to intimidate the complainant. Rather, it was his intention to question him about whether he was responsible for placing syringes on Ms Wall’s balcony and also to ensure that he moved his ute.

Dawn Wall

17 (a) Dawn Wall resided in unit 18. She gave evidence that the appellant was a regular visitor to her unit - about two or three times a week if he had business in Sydney. She noticed in about January 2005 there were a lot of visitors, who looked unsavoury, who visited the block of flats. She believed that they were junkies who were buying drugs from the person in unit 28. She also complained that she had constant difficulties with her parking space.

(b) The appellant had told Miss Wall in February 2005 about a conversation he had with the occupant of unit 28 about needles being left around the toilet area. She also said she found a syringe near her car.

(c) On the evening of 7 July 2005 there was a lot of noise from unit 28 and people carrying things down stairs and furniture moving. She said that a number of occupants were complaining about the noise coming from unit 28 and she saw someone kick a big hole in the door of unit 28.

(d) At about 8.30 pm on 8 July she returned to her unit and saw a white ute parked in her car space. She said that the appellant told her that the ute might belong to the new tenant in unit 28 because he knew that was now vacant.

(e) She said that the appellant went up to unit 28 and returned about five minutes later and said it was the occupant of unit 28 and he was cleaning his premises. The appellant said that the occupant of unit 28 was going to move his ute and that he would be leaving shortly.

(f) The appellant then went back to cooking a roast for dinner. She said she then noticed four syringes on her balcony, three capped and one uncapped. She told the appellant “There are syringes on the balcony.” The appellant then said that he would go up and see the occupant of unit 28. He said “That person, he’s put them there. He can come down and clean them up.” She also said that Mr Colburn expressed an interest in going up to unit 28 to purchase drugs. The appellant ordered him not to go.

(g) The appellant then went to unit 28 on a second occasion that night. Shortly after he left she heard the appellant out on the balcony of unit 28 calling down and saying “Norm, how many syringes are down there”” Mr Annam replied “There are four.”

(h) About five to ten minutes later the appellant returned to unit 18 and said that Ms Wall could park her car. He also said that he had asked the complainant about the syringes and the complainant denied that they were his. The appellant said that Mr Colburn was still up in the unit and “he [the appellant] was going to go back up and have another word with [the complainant] about removing the syringes”. Ms Wall then received a call about half an hour later from the appellant saying he had been arrested and was on his way to Parramatta Police Station and asked her to pick up the four syringes. She did so.

Norman Annam

18 Norman Annam gave evidence that on the evening of 8 July 2005 the appellant had said to him that he was going upstairs to ask the neighbour to move his car. Shortly after the appellant returned, he saw four syringes on Ms Wall’s balcony. The appellant then said that he was going upstairs again to ask “the fellow” to come down and remove them. He said that when the appellant was in unit 28 he heard the appellant’s voice shouting out from there to go out on the balcony and the appellant asked him how many syringes there were and he said “Four”.

Allan Merriman

19 Allan Merriman did the building and maintenance work for the units. He gave evidence of a conversation he had with the appellant in February 2005 which was that the appellant had said that he thought the person in the unit above him (unit 28) was dealing in drugs and he had found people using drugs in the car park. Merriman said he had found syringes around the property.

The appeal

20 The notice of appeal was filed on behalf of the appellant by the Legal Aid Commission. The appellant’s submissions were signed by senior counsel retained by the Legal Aid Commission on his behalf.

21 The appellant appeared in person at the hearing of the appeal. There was no appearance for him by any legal representative. He explained to the Court:

“I actually had legal aid handling this matter. I only recently came out of gaol. Alex Howen [appellant’s trial counsel] had a few hiccups and I am not going to have him kicked to death. I come here today because I am not going to have legal aid kick someone to death, so I have come here. The judge was not correct in a lot of his directions.”

22 The appellant did not speak to the written submissions, which he observed were not signed by him. He did not raise any new ground of appeal. He stressed on a number of occasions that his former counsel was a good man and that he would not see him slandered. However, he did not formally withdraw any part of the appeal. Accordingly, each of the three grounds stated in the notice of appeal is considered hereunder.

Ground 1: The conduct of counsel in raising the issue and adducing evidence of the appellant’s criminal convictions and bad character gave rise to a miscarriage of justice

23 The appellant had a criminal record which relevantly included a conviction for assault occasioning actual bodily harm, demand property with menaces and two convictions for intimidation.

24 Counsel for the appellant, in opening to the jury, referred to the fact that the appellant had a criminal record including a conviction for intimidation. He cross examined the police officers in respect of the fact the appellant had a criminal record. The appellant himself gave evidence which referred to at least one of his convictions. Appellant’s counsel referred to the appellant’s criminal history in his final address.

25 The Criminal Appeal Act, 1912 s 6(1) provides:

“The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion …that on any other ground whatsoever there was a miscarriage of justice…provided that the court may…dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

26 It was submitted in the written submissions for the appellant that, by reason of the incompetence of trial counsel, a miscarriage of justice had occurred in consequence of which this Court should set aside the conviction. The miscarriage of justice, it was submitted, resulted from the unnecessary adducing of evidence of the appellant’s criminal record and the repeated references to that criminal record in the appellant’s counsel’s opening and closing address.

27 The following principles are applicable:

(a) A trial may have been unfair, leading to a miscarriage of justice, by reason of the manner in which counsel appearing for the accused conducted the defence ( Seymour v R [2006] NSWCCA 206; (2006) 162 A Crim R 576);

(b) The “flagrant incompetence” of trial counsel may give rise to a miscarriage of justice ( R v Birks (1990) 19 NSWLR 677);

(c) The inquiry about miscarriage must be an objective inquiry - Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161, per Gummow and Hayne JJ at [27].

(d) The question is whether there could be a reasonable explanation for the course that was adopted at trial. If there could be such an explanation, it follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process that no miscarriage of justice is shown to have occurred - Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1 per Hayne J (with whom Gummow J agreed) at [25].

(e) The appellant must show that the failing or error of counsel was a material irregularity and there is a significant possibility that it affected the outcome of the trial - TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 per McHugh J at [79].

(f) 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 ( TKWJ per Gleeson CJ at [16]).

(g) Regard may be had, inter alia, to the opening address of counsel for the appellant and statements of intention during the course of the trial to determine the tactical result sought to be achieved - Seymour at [37], [39].

28 The initial questions for determination are whether there could be a reasonable and rational explanation for counsel’s disclosure of the appellant’s criminal record and whether there is a significant possibility that counsel’s action affected the outcome of the trial adversely to the appellant.

29 The written submissions for the appellant asserted there was no rational or reasonable explanation for trial counsel to open to the jury on the appellant’s criminal convictions or to elicit evidence of those criminal convictions from the police for the following reasons:

(a) Trial counsel had been informed by the Crown that the complainant had no previous convictions and that he had no drug criminal history. It was not necessary for the appellant to prove or raise a doubt about whether the complainant himself sold drugs.

(b) It was completely unnecessary for trial counsel to raise the issue of the appellant’s previous criminal convictions in his opening address when his Honour had not given any ruling on the matter. This was particularly so as counsel maintained the position that the Crown would still need leave to cross examine the appellant on his previous criminal convictions.

(c) Even if trial counsel’s decision to question the complainant about whether he sold drugs was rational or reasonable, this would not have been a proper basis upon which to permit the adducing of the appellant’s prior criminal convictions.

(d) Adducing evidence of the complainant’s alleged previous drug dealings would not have permitted the Crown to obtain leave under s 104(4)(b) to cross examine the appellant about his prior criminal convictions because such evidence would not establish he had a tendency to be untruthful. In any event, there was no “evidence” adduced of that fact - only questions which were denied.

(e) There was no forensic advantage to the appellant in adducing evidence from the police regarding the appellant’s past criminal history. First, there was little really in dispute between the appellant and the police. The police came too late to witness the critical events. Secondly, the extreme prejudice occasioned by disclosure of the appellant’s criminal record overwhelmed any possible minor forensic advantage gained in relation to any bias against the appellant.

30 Background matters apparent from the transcript and bearing on this issue are:

(a) The complainant’s evidence, if accepted, would result in the appellant’s conviction. That evidence was supported, in varying degrees, by the seemingly independent evidence of a number of persons either residing or present in the unit building at the time and the evidence of the police constables who attended. The appellant denied the allegations against him and was prepared to give evidence in support of that denial. There was some assistance for him in the evidence of Ms Wall and Mr Annam though they were not independent witnesses and their evidence did not extend to observations of what occurred in or outside the door of unit 28. It was, on the face of it, a strong Crown case. As appellant’s counsel said to the jury in his opening, the Crown believes, based on the witnesses he has, that “it is really simple, open and shut”.

(b) The Crown case depended to a considerable extent upon the evidence of the complainant. If the complainant’s credibility could be destroyed, the appellant would have prospects of successfully defending the charges. Those prospects would be enhanced if inconsistencies in the evidence of the witnesses could be exploited in cross examination and if the police evidence could be attacked.

(c) The appellant gave written instructions to his counsel that the complainant engaged in drug dealing activities, that he had observed what he concluded, on reasonable grounds, was drug trafficking activity in the block of units emanating from unit 28, that people were observed injecting drugs, that syringes were found on the balcony of the unit below, that the appellant had spoken to the complainant about the syringes and about his observations of drug dealing activity in the building. Thus an available strategy for the defence would be to attempt to destroy the complainant’s credibility by suggesting he was involved in the supply of illegal drugs.

(d) The appellant also was of the opinion that because of the appellant’s criminal record the police had not diligently investigated the complaint made against him.

(e) The Crown informed appellant’s counsel that if such issues were raised it would seek to cross examine the appellant on character. If the Crown was permitted to introduce evidence of the appellant’s prior convictions, including convictions for intimidation, for the first time in cross examination, almost certainly it would be destructive of the appellant’s case.

(f) The matter was raised with his Honour by appellant’s counsel. His Honour, without finally ruling on the question, said, inter alia,

“My tentative view is that if you [the appellant] simply say in evidence in chief I saw all these things, I saw the people shooting up, I saw the syringes, I was worried about it, that’s evidence of the factual matters, it’s not impugning the credit of [the complainant]. If you’re not going to say ‘You, [the complainant] are a drug dealer’, then I think at the moment you’re safe but once you go over the line I think you then open yourself up.
[COUNSEL]: …I can do everything your Honour has described, just dealing exactly with the factual matrix of what was seen, that’s not difficult but there are conversations between my client and [the complainant] which are problematic because the content effectively…my concern is the minute I put to [the complainant] the conversations, not the observations, observations are easy, the conversations as per my instructions…there’s an inference that there’s an allegation against him of being involved in drugs, not just observations of activities in the unit…
HIS HONOUR: Once you do that you’ve got a problem in my view.”
The Crown indicated that it did not disagree with anything which had fallen from his Honour:
“HIS HONOUR: This is really going to set the ground rules. I’m concerned that he’s able to challenge the factual matrix but once you start on his instructions to go beyond that into the next level, then there’s a penalty and I can’t see any way of avoiding that one frankly.”
Appellant’s counsel submitted, for the record, that his Honour was incorrect in the view which he had expressed. He submitted that the appellant should be permitted, without penalty, to raise the matters he had outlined for the purpose of fairly meeting the accuser and the allegations in the Crown case.

(g) Appellant’s counsel said he would “still maintain that the Crown will have to seek leave to cross examine [the appellant] on these matters.”

31 Appellant’s counsel said:

“I note your Honour’s comments and that if - I’ll work on the basis that if there was a formal ruling, that’s what the formal ruling will be and that will have an affect on my opening and the matters that follow, I thank your Honour for the adequate opportunity I’ve had for the submissions…I’m instructed that it won’t be possible to run the extent of the defence that’s required without crossing the line…You’ll hear my opening - you’ll hear it but it will lock my client into a particular position in the opening…”

32 Appellant’s counsel had instructions to adopt the strategy which was previously mentioned and which carried with it the risk of the appellant being cross examined as to his character. Unlike in Seymour’s case [27], the instructions to pursue this strategy were not obviously the work of the appellant’s legal advisers. The appellant’s strong personal feelings on this aspect, which were apparent in his evidence and in interjections made by him during the trial, strongly suggests that the appellant may have requested counsel to follow the strategy adopted irrespective of advice from his counsel as to whether such a course was in his best interests. The suggested strategy was also to be used to assist in undermining the police evidence.

33 Having determined his strategy, appellant’s counsel opened the appellant’s case to the jury and, as earlier indicated, referred to the fact the appellant had criminal convictions which included a conviction for intimidation. Counsel thereafter adhered to this strategy.

34 On 6 December 2006 the Crown Prosecutor indicated that he wished to cross examine the appellant in respect of three matters relating to his prior convictions. His Honour, having considered the factors under s 192 of the Evidence Act, held he would not permit the Crown to lead any evidence on the appellant’s prior convictions.

35 The strategy adopted by appellant’s counsel was carefully weighed and considered by him. He embarked upon it with the appellant’s express instructions to do so. The appellant, it would seem, felt very strongly in relation to what he considered to be the actions of the complainant in dealing drugs and creating risk in respect of abandoned needles. As his Honour observed, counsel had opened on his bad character to the jury on the basis of specific instructions and on the basis of a clear forensic decision.

36 In my opinion, it would be inappropriate to categorise counsel’s decision as flagrant incompetence. On the contrary, it was a carefully considered forensic decision. Counsel’s conduct represented a legitimate choice which a competent counsel could fairly make in the circumstances of the trial and viewed objectively it was a rational tactical decision in the particular forensic situation in which it was made. Further, it has not been established there was a significant possibility that the jury impermissibly relied upon the appellant’s criminal history as evidence of guilt.

37 The fact that ultimately cross examination of the appellant on his record was not permitted and he was convicted does not establish that a miscarriage of justice occurred.

38 In my opinion, this ground of appeal fails.

Ground 2: His Honour’s failure to direct the jury about the permissible uses of the evidence of the appellant’s criminal convictions gave rise to a miscarriage of justice

39 Following upon the completion of the evidence of Det Sendt, his Honour made the following comments to the jury:

“There is just one thing that came up in the course of Det Sendt’s evidence which I would re-emphasise. There was reference made whether the accused had a criminal history and the answer given was, in my view, perfectly correct and I think everybody here would agree with it but it’s something I will need to direct you about. That is that in dealing with a person with a criminal history, that is basically irrelevant to your consideration of the facts of this particular matter. As Det Sendt said, and I will be saying to you again, anything that he Mr Clee may have done in the past is irrelevant in your consideration of the evidence. If you just bear that in mind, as I say, I am not either endorsing or denying or in any way criticising or accepting Det Sendt’s evidence. That, as with all the other evidence, is entirely a matter for you but on that matter if you could just bear that in mind very strongly, thank you.”

40 In his summing up, his Honour directed the jury that:

“…I am going to be giving you directions, in particular three areas, on firstly the use you can make of the accused’s prior record and the evidence you have heard about his character and behaviour.
Now I have already said to you and you will recall at the end of Det Const Sendt’s evidence, when there was reference made to the fact, as there was both by his counsel and by other witnesses during the proceedings, that he Mr Clee has had a criminal record, has been involved in other matters. I think his counsel referred to him as either unlovable or unlovely, using an appropriate rhetorical flourish.
But the reality is, as I have said to you then and I will repeat now to you very strongly, the fact that a person has a criminal history or criminal past or may have been involved in such activities is completely irrelevant to your consideration of these particular charges and the evidence in relation to it. In particular you must not jump to the conclusion or indeed accept that there’s any tendency on his behalf to have behaved in any kind of criminal manner. You must consider your verdict according to the evidence only in relation to this particular charge.”

41 His Honour later in his summing up reminded the jury of the evidence of Det Sendt, and said:

“Again, in relation to that evidence, I remind you of what I said before, not to and reiterate it very strongly ladies and gentlemen, not to take any account of any references to prior criminal history - that being indicative of any kind of tendency whatsoever.”

42 His Honour stressed in his summing up that the burden of proof on all elements rested throughout upon the Crown.

43 It was submitted in the appellant’s written submissions that his Honour, in his summing up to the jury:

(a) did not state that his prior criminal convictions were irrelevant (which was what the jury was originally directed). They were told that the convictions were not relevant to prove the appellant’s tendency. However, the jury was not given any assistance as to how they could permissibly use that evidence. The jury may have believed that the evidence was admissible because it corroborated the complainant’s evidence or because it undermined the appellant’s evidence;

(b) did not clearly direct the jury about the permissible uses of that evidence. That omission also denied the appellant a real chance of acquittal.

44 In my opinion, the overall effect of his Honour’s directions was to inform the jury in strong terms that such evidence was irrelevant. There was no risk, in the light of his Honour’s directions, that the jury would impermissibly rely upon that evidence as showing that the appellant was the sort of person who would engage in the conduct the subject of the charges and would use it as evidence of guilt.

45 That the jury had regard to his Honour’s directions is further exemplified by the fact that it took three days to reach its verdict and in so doing rejected a finding of guilt on the primary charge.

46 Rule 4 of the Criminal Appeal Rules provides:

“No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.”

47 Counsel had discussed the proposed directions with his Honour in the absence of the jury. The directions were then given and no objection was taken to them nor were any further directions sought. This is indicative that in the atmosphere of the trial there was not apparent any reasonable ground of concern as to the fairness and adequacy of the directions. In these circumstances, leave under r 4 is refused.

48 In any event, there was no miscarriage of justice in this regard. In my opinion, this ground of appeal fails.

Ground 3: His Honour’s summing up involved a factual error which gave rise to a miscarriage of justice

49 The appellant gave evidence, in chief, of a conversation with the complainant in February 2005 in which he said:

“A. …And I might add I did tell him who I was. He pulled up, there was - obviously the activity was still going on, but the syringes in the car park stopped and the shooting up in the toilets stopped to a - well I never saw it after that anyway.”

50 In cross examination the following exchange occurred in relation to the February 2005 conversation between the appellant and the complainant:

CROWN: “So you told him who you were?”
APPELLANT: “That’s right.”
CROWN “Because you wanted to put fear into him, didn’t you?”
APPELLANT “Yes.”
CROWN “Just like after you barged into the unit you said to him words to the effect ‘I control the drugs in Kings Cross. I’m going to get a needle or a syringe full of heroin and stick it.’”
APPELLANT “I’m tied up in the building industry, I leave the drug industry to the fucking rats.”

51 It was submitted for the appellant that his Honour had transposed the first question from the February 2005 conversation to the night of the incident (8 July 2005) with the consequence that the comment attributed to the appellant an intention to put fear into the complainant when he went into the unit on 8 July 2005.

52 There is no reason to suppose the jury was confused or misled by this apparent slip on the part of his Honour as

(a) the jury had heard the evidence;

(b) they were reminded moments later that it was on the earlier occasion that the appellant said he told the complainant who he was;

(c) a full transcript of the appellant’s evidence in chief and in cross examination was provided to the jury at its request.

53 In my opinion there was no miscarriage of justice.

54 Furthermore, there was no objection or request for redirection. The appellant accepted no direction was sought to correct this alleged error. I infer that in the atmosphere of the trial there was not apparent any reasonable ground of concern as to the fairness and adequacy of the summing up. Rule 4 of the Criminal Appeal Rules applies. I would not grant leave to appeal on this ground.

Orders

55 I propose the appeal be dismissed.

56 HARRISON J: I agree with Hislop J.

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