KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
RONALD MICHAEL CRAIG APPELLANT
AND
THE QUEEN RESPONDENT
Craig v The Queen
[2018] HCA 13
21 March 2018
B24/2017
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation
J A Griffin QC with E P Mac Giolla Ri and K M Hillard for the appellant (instructed by Fisher Dore Lawyers)
C W Heaton QC with J A Wooldridge for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Craig v The Queen
Criminal law – Appeal against conviction – Murder and manslaughter – Intention to kill or cause grievous bodily harm – Incorrect advice – Where appellant's case was that he had not intended to kill or cause grievous bodily harm – Where appellant incorrectly advised that giving evidence would likely lead to cross-examination on prior convictions – Where chance of cross-examination on prior convictions possible but not likely due to s 15(2) of Evidence Act 1977 (Q) – Where appellant's account of incident to his solicitor inconsistent with prior statements to police – Where appellant was correctly advised that giving evidence would likely lead to cross-examination on inconsistencies – Where appellant gave evidence on appeal that had he been physically and mentally well and absent the incorrect advice he would have given evidence at trial – Where no evidence to suggest trial would have been conducted differently absent the incorrect advice – Whether no miscarriage of justice.
Words and phrases – "criminal history", "cross-examination", "decision not to give evidence", "fair trial", "inconsistent evidence", "incorrect advice", "intent", "intoxication", "miscarriage of justice", "murder", "prior convictions".
Criminal Code (Q), ss 644, 668E(1). Evidence Act 1977 (Q), s 15.
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ. The appellant was convicted following a trial before the Supreme Court of Queensland (Jackson J and a jury) of the murder of his partner, Kylie Anne Hitchen, by stabbing. The appellant did not give evidence at the trial. He had been advised by his counsel, incorrectly, that it was likely if he gave evidence that he would be cross-examined on his criminal history, which included a conviction for an offence involving the fatal stabbing of a man ("the incorrect advice"). The appellant also had been advised by his counsel, correctly, that if he gave evidence he was likely to be cross-examined on inconsistencies between his evidence and the account that he had given the police in a recorded interview.
The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland (Fraser, Gotterson and Morrison JJA) contending, among other grounds, that the conduct of his trial occasioned a miscarriage of justice. On the hearing in the Court of Appeal, this ground was particularised by reference to the incorrect advice, which it was argued effectively left the appellant without the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Craig v The Queen [2018] HCA 13
Case
[2018] HCA 13
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant against his conviction for murder, following a decision by the Queensland Court of Appeal. The central dispute concerned whether the appellant had been denied a fair trial due to incorrect legal advice received from his solicitor regarding the likelihood of being cross-examined on prior convictions if he chose to give evidence.
The legal issues before the High Court were whether the Court of Appeal erred in finding that the incorrect advice did not result in a miscarriage of justice, and more broadly, whether the denial of an informed choice to give evidence constitutes a miscarriage of justice. The Court was required to determine the effect of the incorrect advice on the conduct of the trial and whether this led to an unfair trial.
The High Court reasoned that while the appellant received incorrect advice regarding the likelihood of cross-examination on his criminal history, this advice was only one factor among several influencing his decision not to give evidence. The appellant also acknowledged the significant tactical merit of not giving evidence due to inconsistencies between his proposed testimony and prior statements to the police, and he was suffering from significant physical and mental health difficulties. The Court held that a miscarriage of justice does not automatically arise from incorrect legal advice; rather, it requires consideration of the advice's actual effect on the trial. In this instance, the Court found that the appellant had not established that a miscarriage of justice had occurred.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The appellant appeals by special leave granted by Kiefel CJ, Bell and Keane JJ on 7 April 2017 on the ground that the Court of Appeal erred in finding that the incorrect advice did not result in a miscarriage of justice. The appellant contends that an essential component of a fair trial is the accused's informed choice to give evidence and it follows that the denial of an informed choice will, at least ordinarily, be a miscarriage of justice. For the reasons to be given, the generality of this proposition cannot be accepted. Whether the receipt of incorrect legal advice bearing on the accused's choice not to give evidence is productive of a miscarriage of justice requires consideration of the effect of the advice on the conduct of the trial. Here, that consideration does not establish that there has been a miscarriage of justice and, accordingly, the appeal must be dismissed. Procedural history and facts On 10 March 2014, the appellant was arraigned on an indictment that charged him with the murder of the deceased at Esk on or about 21 January 2011. He pleaded not guilty to murder but guilty to manslaughter. The prosecution declined to accept the plea in discharge of the indictment and the trial proceeded. It was common ground that the appellant went to the Brunswick Heads Police Station on the morning of 22 January 2011 where he reported that he had cut the deceased's neck with a kitchen knife. Following the report, Queensland police went to the appellant's home in Esk and found the body of the deceased. The deceased died from knife wounds to the throat: the left and right carotid arteries had been wholly severed. So, too, the left jugular vein had been wholly severed. The incisions penetrated to the vertebrae. There were two stab-type incised wounds to the deceased's front right shoulder. The appellant's DNA was found on the deceased's fingernails. The appellant made extensive admissions at the trial[3]. These included that he and the deceased had drunk alcohol heavily throughout their relationship. They also included an account of an incident in April 2010 in which the deceased had sustained a fracture to her right cheekbone. The deceased reported the incident to the police on 3 May 2010 alleging that the appellant had assaulted her. On her account, the assault occurred during the night when she had climbed over the appellant to go to the toilet. She told the police that the appellant had inquired "[w]hat's your problem bitch?" and punched her. [3]Criminal Code (Q), s 644. The appellant was questioned by the police about the incident and he gave the account that the deceased's injury was sustained "when we were play wrestling". The appellant was charged with causing the injury to the deceased and released on bail that was conditioned on him not having contact with the deceased. Despite the bail condition, and the terms of a domestic violence order, the appellant and the deceased continued to have contact with each other. In mid-May 2010 the deceased asked the police to withdraw the charge. The request was refused. Several months later she renewed the request, which was refused again.
Evidence
Evidence Before The Court
It was trial counsel's evidence that from a very early stage in their discussions the appellant had indicated a disinclination to give evidence and that the appellant had acknowledged the significant tactical merit in running a narrow defence that was not inconsistent with his initial account. Counsel's reasons for advising of the likelihood that the appellant would be cross-examined on his convictions were his assessment of the risks (i) that the appellant's evidence might convey the imputation that the police had tampered with the crime scene; (ii) that the appellant might raise his good character in evidence[8]; (iii) that if the deceased's statements were received in evidence she might be treated as a prosecution witness for the purposes of s 15(2)(c); and (iv) that evidence of the appellant's conviction for a fatal stabbing might be received to rebut the "defence" of accident[9]. [8]Evidence Act 1977 (Q), s 15(2)(c).[9]R v Craig [2016] QCA 166 at [34].The appellant's evidence The appellant gave a detailed account in his first affidavit of various physical and mental health difficulties that he had suffered in the period leading up to the trial. These had culminated in his hospitalisation following an unsuccessful suicide attempt some days before the trial commenced. The appellant acknowledged that he had not been advised that he could not give evidence but, rather, that he would be in "some difficulty" in the event he chose to testify. The appellant also acknowledged that his physical and mental condition was one of the reasons for his decision not to give evidence. And he acknowledged that a matter at the forefront of his mind in making the decision was the understanding that he would be cross-examined about the significant differences between his evidence and his account in the interview. He maintained that his concern about cross-examination on these inconsistences was not as important as his concern about the disclosure of his criminal history. The Court of Appeal's analysis The Court of Appeal considered that had the appellant given evidence there was a risk that permission would have been given to cross-examine him on his convictions. It was a risk raised by the first and second of counsel's reasons. Counsel's third and fourth reasons were, in the Court of Appeal's view, without legal merit[10]. The Court of Appeal concluded that counsel had been correct to advert to the risk of cross-examination on the appellant's criminal history but incorrect to advise that this was likely. At the highest, the Court of Appeal found that the degree of likelihood that the appellant's convictions would be disclosed to the jury was no more than a possibility[11]. [10]R v Craig [2016] QCA 166 at [36].[11]R v Craig [2016] QCA 166 at [38]. Gotterson JA, writing the leading judgment, observed that the appellant's acknowledgment of the advice – that he would be in "some difficulty" in giving evidence that departed from the account in his interview – was consistent with written instructions in which the appellant stated his preference not to be cross‑examined "about the incidents on the night"[12]. [12]R v Craig [2016] QCA 166 at [33].
Decision
Reasons for decision
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
The last-mentioned submission may be thought to overestimate the forensic difficulty of disproving self-defence and provocation in the context of this powerful prosecution case and to underestimate the forensic advantages of not testifying. Cross-examination on the inconsistencies between the appellant's proposed evidence and his account in the interview would have destroyed his credit and resolved against him any doubt as to proof of his intent that his answers in the interview otherwise might have raised. In the event, it is unnecessary to further address the contention that the outcome of the trial might have been different had the appellant given evidence. An informed decision? The extent to which, if at all, the Court of Appeal concluded that the incorrect advice was material to the appellant's decision is unclear. On one view the third sentence of par [44] of Gotterson JA's reasons, extracted above, is a finding that the decision was not informed by the incorrect advice. The alternative view, in line with the appellant's submission, is that the analysis in par [44] is wholly objective. The appeal in this Court is to be determined upon acceptance of the latter view. The onus is upon the appellant to establish that "on any ground whatsoever there was a miscarriage of justice"[17]. The category of miscarriage of justice that his argument seeks to engage is that the trial was not a fair trial[18]: the exercise of his right to give evidence in his defence was effectively foreclosed by receipt of the incorrect advice. [17]Criminal Code (Q), s 668E(1).[18]Ratten v The Queen (1974) 131 CLR 510 at 516 per Barwick CJ; [1974] HCA 35. The appellate court's assessment of whether the decision not to give evidence deprived the accused of a fair trial looks to the nature and effect of the incorrect legal advice on the accused's decision. It is not an assessment of whether an objectively rational justification for the decision can be assigned to it. The point may be illustrated by the extreme example posited by Gleeson CJ in Nudd v The Queen of the accused who fails to give evidence because counsel wrongly advises that an accused is not entitled to give evidence[19]. His Honour considered that it was difficult to imagine that an appellate court would not intervene in such a case. That would be so even if the appellate court considered that the accused's failure to give evidence was forensically justified: a fair trial requires that the accused be aware of the entitlement to give evidence in his or her defence notwithstanding that that choice may be unwise. [19](2006) 80 ALJR 614 at 620-621 [17]; 225 ALR 161 at 167; [2006] HCA 9. Putting to one side Gleeson CJ's extreme example, the appellate court's determination of whether incorrect legal advice bearing on the accused's decision not to give evidence has occasioned a miscarriage of justice is not without difficulty. Necessarily it is a determination that will only arise following a trial at which the accused has been convicted. It would be unrealistic not to recognise that the reliability of an accused's honest evidence on appeal, that he or she would have given evidence had the incorrect legal advice not been given, may be affected by an element of hindsight reasoning[20]. And, as here, the decision not to give evidence may be the product of a combination of factors, not all of which are tainted by the incorrect legal advice. The conclusion that the trial of an accused was not a fair trial requires the appellate court to be satisfied that it was the accused's wish to give evidence and that the incorrect legal advice effectively deprived the accused of the opportunity to do so. [20]Cf Chappel v Hart (1998) 195 CLR 232 at 246 fn 64 per McHugh J; [1998] HCA 55.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ