Crane v King - [2009] WASC 168

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CRANE -v- KING [2009] WASC 168

CORAM: McKECHNIE J

HEARD: 24 SEPTEMBER 2008 & 13 FEBRUARY 2009

DELIVERED : 16 JUNE 2009

FILE NO/S: SJA 1084 of 2007

BETWEEN: TERESA JANE CRANE
Appellant
AND
BYRON KING
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE C P CRAWFORD
File No  :BUN 1611 of 2006, BUN 1612 of 2006, BUN 1614 of 2006, BUN 1615 of 2006, BUN 1616 of 2006, BUN 1617 of 2006, BUN 1618 of 2006

Catchwords:

Courts and judges - Application for adjournment following discharge of counsel - Whether discretion miscarried - Legal practitioners - Whether failed to carry out instruction - Criminal law - Weissensteiner direction - Whether error of law

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters & Mr G C R Yin
Respondent: Ms L Goodsell

Solicitors:

Appellant: D G Price & Co
Respondent: Director of Public Prosecutions (WA)

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

Craig v The State of South Australia (1995) 184 CLR 163
Dietrich v The Queen (1992) 177 CLR 292
Frawley (1993) 69 A Crim R 208
IAS (2004) 146 A Crim R 416
Lewis v The State of Western Australia [2008] WASCA 94
Pickett v Fuderer (Unreported, WASC, Library No 980475, 27 August 1998)
Weissensteiner v The Queen (1993) 178 CLR 217

McKECHNIE J:

Introduction

On 9 July 2007, after trial, the appellant was convicted of seven offences and acquitted of one offence. On 2 October 2007 she was placed on an intensive supervision order (ISO), and a community based order (CBO) for 12 months concurrent. She was also fined and ordered to pay compensation. The appellant in person lodged a notice of application for leave to appeal. There were several directions hearings at which I observed the appellant. The matter did not satisfactorily progress until such time as she was financially able to engage solicitors to act on her behalf. So it is that the ISO and CBO had almost expired before the appeal came on for hearing. Amended grounds of appeal were filed and I grant leave on those grounds.
The facts relating to grounds 1 and 3 are intertwined and I will deal with them together. Ground 2 affects only two convictions and raises a different issue - one concerning the Weissensteiner principle, so‑called.

Ground 1

1.The learned Magistrates' discretion miscarried when she determined not to allow an adjournment, such that the appellant did not receive a fair trial and there was a miscarriage of justice;
Particulars
In refusing the application -
a)undue emphasis was placed on the cost to the prosecution;
b)undue emphasis was placed on the inconvenience to the prosecution;
c)undue emphasis was placed on principles of case management;
d)an incorrect approach was taken to the appellant's dismissal of her counsel.

Ground 3

There was a miscarriage of justice caused by the conduct, contrary to instructions, of the Appellant's primary counsel, namely;
Particulars:
i)failure to proof witnesses who could give evidence capable of undermining the prosecution case;
ii)as a result of his failure to proof these witnesses, the Appellant's primary counsel lost the opportunity to call them as witnesses for the defence before the Primary Court;
iii)failure to adequately cross‑examine;
iv)failure to call the Appellant to testify in her own defence.

The trial was set down in Bunbury from 23 to 27 October 2006 and proceeded during that time. The appellant was represented by counsel Mr M A Tedeschi. On 27 October, while still in Bunbury, the prosecution case closed. Counsel was asked by the Magistrate whether his client elected to give evidence. He responded, in the presence of the appellant:
No, your Honour. My client, Mrs Crane, won't be giving evidence but we will be calling some witnesses as part of the defence. (ts 439)
The defence then called three witnesses. At the conclusion of the third witness's evidence, the trial had not concluded. There was a discussion about dates. Counsel advised 'there were probably only two witnesses - at the absolute outside three but I think probably only two'. It was agreed that the matter would have to be adjourned and finally it was agreed that the case be adjourned part‑heard until 28 February 2007 in Perth.
On that date, the appellant appeared in person and sought an adjournment. She advised the Magistrate that 'counsel had been fired and that another counsel, Ms Lonsdale, had agreed to represent me but is unable to attend because she has other court proceedings'. The Magistrate enquired as to when counsel had been dismissed and was told about 28 January 2007. She then asked the appellant what had she done between then and now, to get herself representation for these two days.
The appellant answered:
Yes. I've got letters here, your Honour. I've got legal aid - because I actually tried to apply for legal aid as well; I've got a letter from D J Price here as well, who is a legal firm. Ms Lonsdale doesn't take instructions from the client, she takes them from a legal firm, so D J Price is the legal firm she recommended; they agreed to represent me but I didn't have the money to put into their account until my home is sold, which is on the market. I had applied for legal aid, which I have a letter here. I was knocked back with legal aid on two grounds, and then I was able to apply again, but because I had assets over 300,000, it didn't matter that I couldn't access those assets, I couldn't get legal aid.
She advised that Mr Tedeschi was privately funded. She had approached solicitors, in fact her current solicitors D G Price & Co, and she advised the Magistrate that D G Price wanted money on account. She then said:
Well, your Honour, if I had know that all those things - as far as I was told, I had to come to court and then present to your Honour these pieces of documents and then ask for the adjournment, and that was as far as I was told what I had to do, and I'm not a lawyer, I don't know procedure in any of this and that was as far as I was aware what I had to do. The other thing is I was asking for disclosure of certain things which haven't been disclosed yet, because we haven't had full disclosure made by the prosecutor, to be able to carry on as well, because we need that evidence, those particular things, so that we can have those examined.
She advised that she had been ill.
I'm sorry, your Honour, I actually also suffer from pancreatitis, I don't know if you know the condition at all, it's caused through an infection in your pancreas and insulin insufficiency as well. I was hospitalised several times and I've been quite sick with that. It's very debilitating, it's actually a life threatening illness, which I was in hospital for. I have all my medical records if you need to see them, so that was a lot of time taken up there, in and out of hospital.
She said that Mr Tedeschi was incorrect in saying there were up to three witnesses, that there were 13. In answer to the Magistrate she said she was in hospital just before Christmas and after Christmas. The Magistrate ruled:
Mrs Crane has applied for an adjournment of the trial. Eight matters were part-heard in Bunbury, as of 27 October 06, after five days of hearing, and the matter was adjourned to Perth and the location was actually at the - or on the application of Mrs Crane's counsel, Mr Tedeschi, and listed for two days, commencing today.
Now, Mrs Crane appears in person this morning. She gives essentially two reasons to support the application for the adjournment; firstly that she has sacked her counsel for incompetence and various other complaints including that he didn't follow instructions and she has been unable to secure alternative legal representation by today. The second reason given is ill‑health. Now, the relevant principle is set out in Myers v Myers (1969) WAR 19, where his Honour Jackson J said:
'To grant or refuse an adjournment is a matter of discretion of the court to whom an application is made, but where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted, unless, in turn, this would mean serious injustice to the other party.'
Now, I'm informed by Mrs Crane this morning that she sacked Mr Tedeschi in late January, she's reported him to the CCC and yesterday she gave evidence to the CCC. She says that she sought alternative legal representation through D G Price and Co and with a view to that firm instructing Ms Belinda Lonsdale, and a letter dated 19 January 2007 was handed up in which D G Price sets out the terms on which it will accept instructions, including payment of funds on account of fees and disbursements.
Mrs Crane says that she's unable to afford to pay the moneys to secure - or she has been unable to afford to pay the moneys to secure representation by Ms Lonsdale upon the resumption of the trial today, as she is a pensioner and her only asset is the home which is to be sold as part of a Family Court settlement.
Mrs Crane says that she has sought and been refused legal aid by the Legal Aid Commission and the court was shown a letter dated September 06 refusing aid. I note at this point that that pre‑dates the trial which ran for five days in late October. However, Mrs Crane says that subsequent to October 06 she has applied to Legal Aid including yesterday through her local member of parliament.
Now, Mrs Crane says she did not, inform the prosecution until this morning that she would be applying for an adjournment as she is not legally represented and didn't know that she should do so.
From her remarks to the court this morning and the correspondence from D G Price, dated 19 September - sorry dated 19 January 2007, she informed D G Price that the matter was to resume today for two days and she got advice from Ms Lonsdale.
In any event, Mrs Crane has had between about 19 January 07 and today, 28 February, to arrange other representation upon the resumption of the trial today, or, in the interim period, to apply for an adjournment, or, at a minimum, to inform the prosecution of her intention to apply for an adjournment.
I'm informed that the prosecutor has travelled from Bunbury to appear in the matter to complete it over the next two days and indeed arrived last night, and has prepared written submissions as was discussed when the matter was adjourned in October in Bunbury.
Now, the second reason advanced by Mrs Crane for an adjournment is her own ill‑health. She says that she suffers from pancreatitis and depression. She says that she was ill and spent four days in hospital due to pancreatitis, and that was before and after Christmas, and that she was unwell at home for several weeks after her discharge from hospital.
It's clear from the date of the correspondence from D G Price and Co, that is 19 January 07, that the accused was taking steps, at that point, to arrange alternative representation and that is approximately five weeks ago. I don't accept that ill‑health caused the accused to be in her current position.
Mrs Crane has chosen to sack her counsel and place herself in this position, without legal representation to proceed today, to complete the trial. As I've said, the matter was set down in late October for two days. The accused has come to court today with her two daughters who she says are intended to be called as witnesses but no other witnesses. It would appear that the accused assumed that she would get an adjournment.
Now, in regard to the principle in Myers v Myers, I consider that there is a public interest in having the matter resolved, as planned, and set down in October 06 and, indeed, as notified to the parties at that time.
The date and location was set after consultation and agreement by the parties. I consider that there would be inconvenience and cost to the prosecution in not proceeding with the trial over the next two days and that there is cost and inconvenience in terms of the administration of justice if the case is not completed in the time which has been set aside.
The situation is of the making of the accused. The other path was to retain her counsel, complete her case, she may or may not have been convicted and may or may not have utilised her appeal rights if it was necessary to do so. So the application for the adjournment is dismissed and, at this stage, the trial will proceed.

The evidence on appeal

The appellant filed two affidavits in these proceedings. The first is sworn 29 August 2008 and the second the 23 September 2008. They relate to both grounds 1 and 3. The respondent called the appellant's trial counsel, Mr Tedeschi, to give evidence at the appeal. The evidence of the appellant and Mr Tedeschi is directed at both grounds. Ground 3 provides a background to ground 1.

The issue of the appellant testifying - the appellant's evidence

In the course of her affidavit of 29 August 2008 the appellant made specific allegations of misconduct in relation to her counsel:
16.In around April 2006 I engaged Mr Marco Tedeschi, Barrister, to act for me at the trial. He was previously my Family Court barrister, who had been instructed by Mr Bruce Heathershaw of Slee, Anderson & Pigeon.
…
19.I provided Mr Tedeschi with a combination of oral and written instructions on the case. I also provided him with files of material, witness statements and my notes on the prosecution case.
…
21.I met with Mr Tedeschi two or three times, but there was correspondence via phone, email, fax and letter form. I did not keep a record of the majority of these.
22.The first time I met with Mr Tedeschi was in April 2006. I provided him with a statement I drafted regarding the execution of the search warrant. Amongst other issues I had with the search, which were fully canvassed at the hearing, I was pointing out that I did not meet Detective King at the front door as I was in the shower. My daughters answered the door.
23.Mr Tedeschi told me that when I testified, I could testify to that and everything else relating to the impropriety of the search.
24.There were many such similar discussions. Whenever I provided instructions to Mr Tedeschi, or pointed out problems with the prosecution case, he advised me that they were things I could give evidence of.
25.It was always the case that I was going to be giving evidence. We never had a proper discussion about it, and it was never explained to me that I could make an election and that an accused person does not have to give evidence.
26.It was known that I was going to give evidence.
27.Whenever we would discuss the case, I would say to Mr Tedeschi 'I can testify to that and I can prove it' or words to that effect. Examples of this can be found in most of the items under the heading 'Evidence I could have given' below.
28.Mr Tedeschi also said to me on many occasions when we were discussing the matter, my instructions and how we were going to prove our case that: 'Teresa, these are things that I can put to you, so you can give evidence of that' or words to that effect and 'that is something you can testify to Teresa' or words to that effect.
29.In early September 2006, my mother, two daughters (Yasmin and Candice) and I met with Mr Tedeschi for the purpose of viewing the video of the two searches, going over the evidence, talking generally about the case and procedure and to conduct mock examinations of us.
30.While the search video was running, I became upset and had to leave the room for a while.
31.Whilst I was out of the room, I understand Mr Tedeschi conducted an examination of my daughters and my mother. By that I mean, he asked them the questions he would be asking them at trial. When I returned, he was completing his examination of my two daughters and then he conducted one with me.
32.It appeared clear that I was going to give evidence. I was aware of the importance of the evidence I could give. I also believe that Mr Tedeschi was aware of the importance of the evidence I could give.
During the hearing
33.On 24 October 2006, at the second day of the hearing, I heard Mr Tedeschi say to the Court: 'I'll prove it through Mrs Crane'. This confirmed to me that I was going to give evidence.
34.On 25 October 2006, at the third day of the hearing, I am now aware that Mr Tedeschi told the Court 'if my client gives evidence then let him... '
35.I do not recall this happening at the time. I must have missed it, or not realized the significance of what he said. However, between 24 and 25 October 2008 nothing changed at all.
36.We never discussed that I may not be giving evidence.
37.I recall on numerous occasions during the hearing I was getting concerned that Mr Tedeschi was not asking witnesses the right questions and not pointing out problems with the witnesses' account of events. Mr Tedeschi would say words to the effect of: 'you can give evidence of that.'
38.An example of this relates to the fact that I could not have been at my computer when the Flexirent document was created. The Flexirent document was created and modified on 28/08/2005 at 1446. Annexed as 'TC 2' is a true copy of a screen print of out that file, which was tendered as part of Exhibit Z. During the hearing, I leant over to Mr Tedeschi and said words to the effect of 'I couldn't have created that, I would have been at school picking up my girls' to which he replied 'you can give evidence of that' or words to that effect.
39.Another example is that I was not in Bunbury when the burglary of 9 June 2008 took place. I was in Perth at hospital. Again, I leant over and said words to the effect of 'I couldn't have faked the report. I was in hospital in Perth when the burglary happened.' Again, Mr Tedeschi replied 'you can give evidence of that' or words to that effect.
40.Another example is in relation to the Megxon camera. I said to Mr Tedeschi words to the effect of: 'I never gave the serial number to the Police. That's not possible' He said 'you can give evidence of that' or words to that effect.
41.These are just a few examples, but it happened on many occasions during the hearing in relation to almost any inconsistency in the case or when something I could give evidence of came up in evidence (see 'evidence I could have given' below). I was very anxious and would comment and speak to Mr Tedeschi often while the case was running. There were times where I heard the Magistrate getting frustrated with me and telling me to keep quiet.
42.I recall a discussion with Mr Tedeschi after Court on 24 October 2006 where I asked him 'when am I giving evidence?' He replied 'I know what I'm doing.' I did not take it any further, but assumed that I would still be giving evidence, as nothing had changed.
43.I did not take it any further, because he gave me this response on a number of occasions during the hearing. I asked Mr Tedeschi questions about the case frequently. It appeared he was getting frustrated with me and was too busy to discuss the case with me.
44.On another occasion during the hearing, I recall getting concerned about the time frame. I cannot remember when, but it would have been toward the end of hearing. We had thirteen witnesses to call, including myself, and there were only one or two days of trial remaining. I said 'when am I actually testifying? We're running out of time.' Mr Tedeschi replied 'We're fine. I know what I'm doing.' Again, I didn't take it any further for the reasons outlined above.
45.On 27 October 2006 I heard Mr Tedeschi say to the Court: 'My client, Mrs Crane, won't be giving evidence, but we will be calling some witnesses as part of the defence.'
46.I was shocked and I wanted to stand up and object. I leant over and whispered 'Marco.' He said 'shhh.' Court continued on and Mr Tedeschi immediately called a witness.
47.I understood the significance of what was happening, but I did not think I could do anything about it, so I waited until after Court to confront Mr Tedeschi.
48.After Court, whilst still in the Courtroom, I said words to the effect of 'Marco, what are you doing? I am giving evidence, what are you doing?' Mr Tedeschi told me to wait until we got outside to speak. We then went outside.

The issue of the appellant testifying - Mr Tedeschi's evidence

Appellant's counsel agreeing that the appellant had waived legal professional privilege, the respondent called Mr Tedeschi who gave sworn evidence before me on 24 September 2008. The appeal was unable to be concluded on that day and Mr Tedeschi returned for cross‑examination on 13 February 2009.
Mr Tedeschi gave evidence that he acted for the appellant at trial. He referred, during the course of his evidence, to his file note:
I have a file note that on 20 October 2006 I either met with Mrs Crane or it might have been a telephone conversation and I noted that I - that she was to consider not giving evidence, that I had advised her and recommended to her that she should seriously consider not giving evidence. Now, it wasn't necessary to make a decision at that particular juncture but certainly that was what I had advised her before the trial started. (ts 47)
Mr Tedeschi explained the significance of the videos of the searches conducted at the appellant's house in Elaap Street, Bunbury, on two separate occasions and the concern that the searches were illegal. He noted that on the searches the appellant was actively involved, making various statements and answering questions. The transcript at the appeal hearing then records him as saying:
[I]t was clear that there was no admission and she put her point of view well in the video record of interviews and during the course of the actual trial I again, you know, expressed my view to Mrs Crane that I felt it was in her best interests to give evidence. (ts 47)
I consider the transcript in this passage is incorrect. My note, which conforms to the balance of Mr Tedeschi's evidence, is that his evidence was:
I again, you know, expressed my view to Mrs Crane that I felt it was in her bests interests not to give evidence. (emphasis added)
He detailed that there were conversations while the proceedings were in train towards the end of the trial and the last or second last day before the trial was concluded:
My view was that it was not in her best interest to evidence and I reiterated that to her. I said, 'Look, you know, you've made no admissions in the video records of the searches. You've put your point of view,' and I recommended that she shouldn't give evidence. I'd called other witnesses that we had in court that day. You know, I deliberately had not called her during the course of the day. She was the very last witness that was there on that day, and she accepted my recommendation that she ought not to give evidence and that's what I indicated to the court. (ts 48)
In the course of his evidence Mr Tedeschi's attention was drawn to the reference in the transcript about something being proven through Mrs Crane relating to an Arrow Computer receipt that was in her possession. His explanation was that this was a very fluid situation:
As we were going along we were making decisions as to what is the best way to go so there probably was that indication in the transcript. (ts 48)
As to what occurred at the end of the hearing:
What, if anything, occurred at the cessation of court in relation to that election? Was there any discussion?---Mrs Crane didn't quarrel with me or get upset with me or abuse me or anything like that in connection with my indication to the judge that she wasn't giving evidence. (ts 49)
The fluid situation crystallised before any defence witnesses were called. Mr Tedeschi was definite about that.
He was cross‑examined about when the final decision was made. He could not remember if it was before the prosecution case ended although that was his best recollection but it was while they were in court and before he called any witnesses for the defence:
Might you have formed the view, as you were entitled to, that she wouldn't be a good witness and you made that decision for her?---It wasn't that extreme. I mean, I know I was entitled to do that but I would not have done that. If she was insisting that she wanted to give evidence despite what I had recommended, I would've called her. (ts 73)
He acknowledged that there were passages in the transcript which indicated there was still at least a possibility that he would be calling Mrs Crane. He said again:
I don't know if you have had the benefit of watching the search videos. There are two long search videos and Mrs Crane put you know all the explanation that she wants to in relation to those matters her explanations about it are in the video and I couldn't see that she could ever improve on that. (ts 75)

The issue of other witnesses - the appellant's evidence

[affidavit dated August 2008]
62.Mr Tedeschi failed to follow my instructions.
63.For use in the Family Court proceedings I engaged a Document Examiner, Mr Adrian Lacroix, to prepare a report in Affidavit form. Annexed as 'TC 5' is a true copy of that Affidavit.
64.The report details a signature analysis of exhibit Q and a financial agreement that was annexed to my Family Court Affidavit sworn on 17 October 2005 and filed on 20 October 2005 at Bunbury.
65.Mr Tedeschi was my Family Court barrister and had a copy of this.
66.Mr Lacroix was not called for those proceedings. I then arranged for Mr Lacroix to be summonsed to give evidence at my Criminal hearing. I arranged for the summonses to be stamped in Bunbury, before forwarding them to Mr Tedeschi to be served. It was much cheaper to do that, than for me to arrange service from Bunbury.
67.I wanted Mr Lacroix to give evidence at the hearing in October 2006.
68.I asked Mr Tedeschi in October during the hearing when Mr Lacroix would be giving evidence. Mr Tedeschi replied that Mr Lacroix required $7,500.00 to appear in Court to be an expert witness. Mr Tedeschi advised me that this was not worth it, as we would not require him. I was confused, because I thought his evidence was very important.
69.I only discovered that Mr Tedeschi had misled and lied to me in February 2007 when I telephoned Mr Lacroix. Mr Lacroix advised me that he never received a summons, nor was he ever asked to testify on October 2006 and he would not have charged $7,500.00 for a Court appearance.
Telephone Conversation
70.At page 456 of the transcript, Jasmine Corbett gave evidence of a telephone conversation with Paul Crane on speakerphone, where he authorised the purchase of items for the pool and the servicing of the car.
71.I had a tape of this and provided it to Mr Tedeschi. I played it to him in his office and at Court on my voice recorder. There is no doubt that he heard it.
72.I wanted to tender it. However, I was advised that I could be charged for a breach of the Telecommunications Act if that evidence was led and I would be liable to a fine of $5,000.00. I said words to the effect that 'Well let them fine me, this proves our case.'
73.He did not follow my instructions to put it to Paul, or to call me to give evidence and allow me to tender it.
[affidavit dated September 2008]
2.I swore an affidavit in these proceedings on 29 August 2008. At paragraph [66] I stated the following:
I arranged for the summonses to be stamped in Bunbury, before forwarding them to Mr Tedeschi to be served. It was much cheaper to do that, than for me to arrange service from Bunbury.
3.I have now had the opportunity to consider this further and wish to clarify that paragraph.
4.On 29 September 2006 at the Bunbury Courthouse, I filed an Application for witness summonses for 14 witnesses to either attend or produce items at my hearing commencing 23 October 2006. Annexed as 'Annexure A' is a true copy of that Application.
5.The Application for a witness summonses was granted. Annexed as 'Annexure B' are true copies of the stamped witnesses summonses on:
1.Patricia Cole;
2.Sharon Harrod;
3.Francine Rajander;
4.Helen Mary Sykes;
5.Paul Douglas Crane;
6.Nicole Rae Willard;
7.Glenn Michael Scott;
8.Peter Richard Cody;
9.Terry Cody;
10.Gregory Walsh; and
11.Anne Holloway.

6.I then arranged for some of the summonses listed above to be served in Bunbury and for some to be served in Busselton, as these witnesses were based in either Bunbury or Busselton. I also arranged for the remaining three witness summonses to be served in Perth.
7.I engaged Mr Allen Mitchell to serve the summonses on the witnesses in Bunbury. I engaged the Busselton Bailiff to serve the summonses in Busselton.
8.The Busselton Bailiff served Peter Richard Cody and Terry Cody. Mr Allen Mitchell served the remainder of the witnesses listed at paragraph 5 above.
…
12.The remaining witnesses on the Application were Mr Adrian Lacroix, the Manager of HSBC Bank Australia and Mr Peter Crane, who all resided in Perth at the time. Accordingly, I sent stamped summonses to Mr Marco Tedeschi for him to arrange service, as it was easier and cheaper to do from Perth.
…
16.Annexed as 'Annexure F' is a true copy of the cheque butt for the cheque I provided to Mr Tedeschi for the purpose of arranging service of the documents dated 05.10.2006.

Mr Lacroix has sworn an affidavit:
2.I prepared a forensic document examination report for Mrs Teresa Jane Crane for use in her Family Court proceedings in early 2006.
3.This was to analyze the validity of the signature of a Paul Douglas Crane on two documents. The first one being a photocopy of a letter commencing 'To Whom It May Concern, December 9th 2003', with the signature in question being in the name of 'P.D. Crane'. The second being a photocopy of a Financial Agreement, which had the machine printed date of 26.04.04 and signature date 04.05.04.
4.I did not provide an estimate that to give evidence in Mrs Crane's criminal proceedings would cost $7500.00
5.My fees at the time in question were $1500.00 per day.
6.I estimate that Mrs Crane's matter would have taken one day.

The issue of other witnesses - Mr Tedeschi's evidence

We arranged to subpoena a number of witnesses. There were about eight or 10 or something like that. I would speak to witnesses either on the phone during the course of the days that we were there and before trial.
During lunchtime - - -?---During lunchtimes and breaks, yes, and sometimes witnesses would come to court at the start of the day before court started and I would speak to those witnesses. Then based upon what they indicated they could say decisions were made about whether or not to call them. Just as an example, Peter Cody was one of the witnesses who was subpoenaed. Peter Cody is a part owner of a substantial meat works business in Bunbury and Mrs Crane's instructions were that he could testify to the fact that Mrs Crane's husband, Paul, had an interest in a boning room and had assets overseas and so on.
Just to be clear, who had assets overseas?---That Mr Crane did.
Mr Crane did. Thank you?---I spoke to Mr Cody and I have got my notes of speaking to him as to whether he could give that evidence and he couldn't give that evidence and accordingly he wasn't called.
Thank you. Are you able to tell us about any other witnesses that you proofed?---Yes; there was a counsellor who the parties had seen for some marriage counselling at one stage.
What evidence, if any, had it been indicated to you that this person might be able to give in advance of seeing him?---That Mr Crane had told the counsellor that he was overseas when in fact he wasn't, or something like that, and again I've got notes that indicate that that did occur. That would have been just going to the general credibility of Mr Crane so that witness could have been called if it was really necessary but it wasn't really strictly necessary.
…
There was also a handwriting expert, a Mr Lacroix, Adrian Lacroix, and we had obtained a handwriting report for the Family Court proceedings and we weren't able to use it in the Family Court proceedings. I have got notes that show that we discussed whether we should call Mr Lacroix and he wanted to be paid in advance about a thousand dollars before he would come down which Mrs Crane didn't have but we had subpoenaed Mr Lacroix - - -
Just to be clear, you said 'a thousand dollars'?---1000; $1000.
Thank you?---Mr Lacroix had been placed under subpoena and again I have notes that show I discussed that with Mrs Crane, whether or not we were going to - whether she could come up with a thousand dollars and whether we should call him and the decision was that we wouldn't call him but we could use his report to assist us in cross‑examination.
Any other witnesses that you recall? I realise that you have done - - -?---There were other witnesses.
Other witnesses that you proofed or other witnesses that you spoke about, potential evidence?---If someone was called to give evidence then I would have proofed them before they were called to give evidence.
Yes?---And if people were subpoenaed and came to court, and a number did, and I don't remember the names of everybody now, but most of the people that were subpoenaed did come to court, or I spoke to them, and I would not call someone if they could not give any evidence that was helpful to her defence.
Do you recall proofing Ms Kelly Bartley?---I remember Kelly Bartley, yes.
Did you proof her?---I had her statement, I had her affidavit from the family law proceedings. I also had further information that Mrs Crane had provided to me. I can't remember now whether I sat down and proofed her beforehand. Did I call Kelly Bartley? No, okay. Look I have notes relating to Kelly Bartley that there were two letters that Mrs Crane had had that she said her former husband had signed that indicated he had substantial property interests. The instructions that I had were that the original of those letters were with Kelly Bartley, but I never saw the original of those letters. (ts 49 ‑ 52)

Mr Tedeschi explained that he discussed the matter with Mrs Crane before the trial, trying to work out which witnesses should be subpoenaed that could be potentially relevant to her case. He considered that on resumption he would call two, possibly three, witnesses.
Mr Tedeschi was very strongly against calling Candice for reasons he explained. He certainly would have called the other child Yasmin who was able to give evidence about the matters Mrs Crane felt were relevant and important so there would have been one or two witnesses apart from Candice.
He gave evidence about Mrs Kelly Bartley noting that in the family law case, Thackray J did not find her to be a reliable witness. Mr Tedeschi explained the general manner he would receive instructions:
I would have consultations with Mrs Crane in terms of instructions I took from her about various matters. I would make notes about those matters that were relevant. Mrs Crane also prepared a detailed set of instructions for me answering in general terms each of the eight charges and what her point of view was in relation to all of that and she gave me that and she also provided me with statements of some of the witnesses that she thought we should call. (ts 64)
The witness statements were typed and the signatures on the statements were never original signatures but photocopies of signatures. Mr Tedeschi's understanding was Mrs Crane, having spoken to the witnesses and that what was in the witness statement was meant to represent the evidence that those witnesses were able to give, at least according to Mrs Crane's instructions, but he found that often that was not the case when he proofed the witness.
In relation to witnesses he said:
When I spoke to them it was quite clear they weren't able to give the evidence that Mrs Crane had instructed me they could give and I was satisfied that they couldn't because I'd spoken to them and there was no value in calling those witnesses. In fact, it would have been damaging to her defence to call them. (ts 75)

The circumstances of Mr Tedeschi's termination - the appellant's evidence

49.When we got outside I got very angry and swore at Mr Tedeschi a lot. I was going on about that I had to give evidence and asking why he told the Court that I wasn't. It is fair to say I was hysterical.
50.Mr Tedeschi went silent and said 'we'll talk tomorrow.'
51.I was extremely upset and stormed off to the car and left.
52.The matter was adjourned on this date until 28 February 2007.
53.A few days later I spoke to Mr Tedeschi on the phone and I was still furious. I said 'Marco, I'm still giving evidence!' I was ranting and raving and saying that I had to give evidence and that he had told me that I had to produce and prove documents. He told me that we would discuss the matter soon.
54.I spoke to Mr Tedeschi a handful of times after the case. We would speak generally about how the case was going to be run when it resumed and I also wanted copies of the search warrants and documentation he had returned to me.
55.I recall one discussion when we spoke about me giving evidence. I said words to the effect of 'Marco, how am I meant to give evidence?' He replied 'you can't now.'
56.This upset me greatly. I had lost faith in Mr Tedeschi. Eventually, in January 2007, after discussions with my mother, we decided that I should terminate his retainer. I cannot remember the exact date, but I sacked him around the middle of January 2007.

The circumstances of Mr Tedeschi's termination - Mr Tedeschi's evidence

Mrs Crane left a message with the receptionists at John Toohey Chambers one day to say that because I hadn't returned a telephone call that she no longer required my services.
When was that?---Late January or early February of 2007.
Had there been any discussion previously since the cessation of the trial in October 06? Had there been any discussions?---Yes, I had had some discussions with Mrs Crane after the trial had concluded in Bunbury and before she terminated my instructions and she hadn't raised any concerns about my conduct of the trial during those conversations. (ts 65)

In cross‑examination he denied the allegation that Mrs Crane lent over and whispered to him: 'Marco' and he told her to 'shush'. He said: 'That didn't happen'.
In relation to the allegation in Mrs Crane's affidavit that after court, in the courtroom, she said:
Marco, what are you doing? I'm giving evidence. What are you doing?
He said:
That didn't happen.
He also said that outside court she did not become very angry and swear at him. He said:
That didn't happen either.
She was not angry or abusive or complaining about her not giving evidence.
Mr Tedeschi denied that a few days after the adjournment, at the end of October, Mrs Crane spoke to him on the phone and said: 'I'm still giving evidence'. Mrs Crane alleged she said on a further occasion: 'Marco, how am I meant to give evidence' and he allegedly said 'You can't now'. As to that conversation, Mr Tedeschi said that it did not occur either.
In relation to not giving evidence following his advice to her, he said there was a fluid situation and she had not instructed him at that stage that she was going to accept his recommendation. He was still waiting for her instructions so he was keeping open the possibility she would be giving evidence. The conversation about giving evidence occurred before he called any defence witnesses 'she instructed me that she would accept my recommendation and that's why I made the indication to the magistrate when I was asked that she wouldn't be giving evidence'.
He expanded on the explanation:
There was no need to call her because I'd already indicated to the court that she was not going to give evidence. So Teresa was present in court and we were calling the witnesses that we had available to give evidence to corroborate her version of events as she's explained them in the video record of the searches, and once we got to the end of those witnesses, which from recollection was towards the end of the day anyway, the matter was to be adjourned. (ts 70)

In relation to the witness Kelly Bartley he pointed out that the originals were never produced to him but Kelly could give other evidence that would be helpful to Mrs Crane's defence on some of the charges and Mr Tedeschi would have called her to give evidence about those other matters. The other matters related to the theft of property - the laptop, camera and mobile phone.

My findings on the evidence pertaining to ground 3

The appellant did not give oral evidence at the appeal. Her counsel (ts 80) noted that it's a question of what weight the court places on the affidavits. Counsel resiled from a submission that the affidavits were unchallenged.
The appellant appeared before me on a number of occasions before she was represented by counsel. I have also watched videos of the searches of her house on 13 December 2005 and 15 March 2006 and her ability to state her view in no uncertain terms. Her evidence is contradicted in material respects as outlined above by Mr Tedeschi. I noted in examination and cross‑examination that he treated each question with care in selecting his response. He relied upon notes he had made at the time. His language was not extravagant. He impressed me as an honest and careful witness. The appellant did not make any remark recorded on transcript when the question was asked:
Now, Mr Tedeschi, does your client elect to give evidence?
MR TEDESCHI: No, your Honour. My client, Mrs Crane, won't be giving evidence but we will be calling some witnesses as part of the defence. (ts 439)
At the hearing before the Magistrate on 28 February 2007 when the appellant was requesting an adjournment she stated that she had terminated Mr Tedeschi's services for misrepresentation. She said she had been to the 'Corruption and Crimes Commission' [sic] to give more evidence the day before. She said:
I made my objections strongly known to Mr Tedeschi. He went against my wishes. I was quite prepared to give evidence. Mr Tedeschi was the one who instructed not to give evidence, and we've now come across the fact that we've had witnesses tampered with, evidence tampered with by Mr Tedeschi.
…
Mr Tedeschi has completely abused his representation and the evidence - presenting the evidence to the case. How can you present something when its been misrepresented and is only half being done. (ts 10)
She further said:
Your Honour, because of Mr Tedeschi tampering with some of the evidence, I now have to get new forensic evidence done as well, but the thing is we are waiting on the computer hard drive. (ts 11)
Mr Tedeschi was asked at the appeal hearing about any complaint being made about him to an official body:
Has there been any complaint made directly to you from Mrs Crane in respect of your election on her behalf?---No; not until I saw the affidavit that was sent by facsimile yesterday. (ts 49).
He was not aware of a complaint to any official body.
These are serious allegations against counsel. The complaint of misrepresentation made by the appellant against Mr Tedeschi is at odds with his conduct of the case as recorded on the transcript. Every legitimate point appears to have been taken and witnesses were appropriately cross‑examined.
Frequently matters proceed in court on the basis of affidavit evidence. If affidavits present conflicts of fact, it is difficult, sometimes impossible, to determine which version is correct. In the present case I have, on the one hand, the affidavits of the appellant and, on the other, the oral testimony and significantly the cross‑examination of Mr Tedeschi. In addition, I have the transcript of the trial and the search videos. From all that material I conclude the version of events advanced by Mr Tedeschi is correct. It has the ring of truth. I have taken into account the fact that Mr Tedeschi's conduct as a practitioner has been criticised by the client and considered whether that would make him a partial witness to the extent of perjury. I have concluded that it does not. Although the appellant asserted in court before the Magistrate that she had reported Mr Tedeschi, she did not repeat that allegation on oath in the appeal affidavits. Nor did she repeat on oath her assertion that he had tampered with evidence. Mr Tedeschi has not been contacted by any authority about a complaint. I accept his evidence on the point. Apart from indicating that the appellant is prone to exaggeration, this indicates that Mr Tedeschi is largely uninterested in the result of this appeal.
Accepting as I do the evidence of Mr Tedeschi in preference to the evidence of the appellant, my conclusion in relation to ground 3 is that none of the factual matters particularised have been made out and in consequence there was no miscarriage of justice caused by the conduct of counsel.
That brings me back to ground 1 and the application for an adjournment. An accused person has a right to a fair trial which includes the right to retain counsel. In some circumstances a lack of legal representation may result in a miscarriage of justice: Dietrich v The Queen (1992) 177 CLR 292. In Craig v The State of South Australia (1995) 184 CLR 163:
The reference [in Dietrich] to an accused's inability to obtain legal representation being 'through no fault on his or her part' was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that:
'... what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.'
A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused (184).
In IAS (2004) 146 A Crim R 416, the court determined it was the appellant's choice to terminate the instructions of his lawyers and in the circumstances he had not been denied a fair trial.
In Frawley (1993) 69 A Crim R 208, Gleeson CJ pointed out that the entire record of the trial proceedings must be scrutinised with particular care to see that no miscarriage of justice has occurred in a context in which the fact that the appellant was unrepresented was the result of their own conduct.
In the present case the appellant had the assistance of counsel for most of the trial including the whole of the presentation of the prosecution case and the calling of some witnesses for the defence. The appellant led evidence from her daughters Yasmin and Candice. The appellant notified the Magistrate that Ms Kelly Bartley was unavailable; she had only come out of surgery and had a tumour removed. There was no letter from a medical practitioner tendered to support this assertion.
In any event, Ms Bartley's ill health was not advanced as a reason for the adjournment. After the adjournment application had been refused, the appellant proceeded to call Yasmin and Candice. The trial then had to be adjourned until the following day. After some interchange, the Magistrate reminded the appellant it was a matter for her who she called and asked: 'So Ms Bartley is coming tomorrow?', receiving the reply: 'Hopefully yes, I can arrange it now'. Upon resumption the next morning the appellant advised the Magistrate that Ms Bartley was unavailable, she had just come out of surgery a week ago and was not well enough to attend court. No affidavit from Ms Bartley detailing what evidence she might have been able to give has been filed in the appeal, although I note Mr Tedeschi would have called her.
In view of the findings I have made, it follows that the appellant terminated Mr Tedeschi's instructions mid‑way through trial without a valid cause. That is, I have found that Mr Tedeschi did follow instructions in his conduct of the case. Of course a party is free at any time to dispense with the services of counsel and is not required to give a reason or even to act reasonably in doing so. However, when counsel's instructions are terminated without an apparent good reason, the resultant refusal of an adjournment may not be a miscarriage of justice.
In Lewis v The State of Western Australia [2008] WASCA 94 [23] ‑ [24], Miller JA dealt with the question of an adjournment while considering leave to appeal and said:
The grant or refusal of an adjournment is essentially a discretionary matter. In Myers v Myers [1969] WAR 19, Jackson J, at 21, summed up the relevant principles:
'To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made. But where the refusal of an adjournment would result in serious injustices to one party, an adjournment should be granted unless in turn this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted. These principles are laid down in Maxwell v Keun [1028] 1 KB 645; [1027] All ER Rep 335, and Walker v Walker [1967] 1 All ER 412.
Myers v Myers was decided almost 40 years ago, but the general principle expressed by Jackson J remains true. Modern case management techniques have some bearing on the question whether there will be an injustice to either party, but, in my opinion, they are of limited import (cf Mano v Iriks [1999] WASCA 180 [15] (McKechnie J); Staley v Lopes [2005] WASCA 75 [14] (Johnson J).
The fact that the appellant found herself without counsel at the resumed hearing was a matter of her own doing.
There was little indication before the magistrate as to when, if at all, the appellant would be successful in obtaining counsel in view of the financial constraints upon her.
The second reason advanced was the question of the appellant's ill health. Essentially, for the reasons given by the magistrate, I agree that the appellant's ill health was not the cause of the need for an adjournment.
In all the circumstances, I am satisfied that the Magistrate in substance addressed herself to the correct questions. She noted that the prosecutor had travelled from Bunbury to Perth to appear in the matter and had prepared written submissions. While this was a factor to be weighed, I would not give it much weight. However, the principal reason for the Magistrate's decision was the public interest in having the matter as resolved as planned and the situation was of the making of the appellant. I am not persuaded that the Magistrate's discretion miscarried and in consequence would dismiss ground 1.

Ground 2

Concerning 'charges four and five', the learned Magistrate erred in law when she applied the principle stated by the High Court in Weissensteiner -v- The Queen (1993) 178 CLR 217, when such was not applicable to the facts of those two matters;
Particulars:
(a)the accused's failure to testify was not a circumstance which it could properly be said bore upon the probative value of the evidence.

This ground relates to two convictions which were linked. Charge 4 was that the appellant had forged a letter, addressed 'To Whom It May Concern', on the V & V Walsh letterhead dated 9 December 2003. This letter purported to be signed by her former husband, P D Crane, and purportedly dealt with his remuneration package and his financial position. The letter was attached to the appellant's affidavit, in the Family Court proceeding, sworn on 17 October 2005. This latter act constituted the uttering in charge 5. The Magistrate found that each of these charges was proved by the prosecution.
The Magistrate's findings in respect of these two charges are not challenged. The Magistrate set out in detail the evidence upon which she relied, noting:
The accused did not give evidence however during the first search she said that she and her husband had separated on 19 April 2004. She said she found V & V Walsh documents, that is those documents next to her Family Court affidavit, in Paul Crane's office on 17 April 2004 when she went there because she suspected he was having an affair. She said that Mr Walsh had 'admitted to everything' the following day including that Paul had '$500,000 super' and a share in the business. [27]
The Magistrate noted:
When Detective King put to the accused during the first search that she had forged the signatures on the V & V Walsh letters she said she didn't know how to do that, she didn't have Greg and Peter Walsh's signatures. [28]
After outlining further evidence, the Magistrate said:
I accept and find that the accused annexed Exhibit Q to her Family Court affidavit. The question is, did she forge the document and file it at the Family Court with the intention of adversely affecting the financial position of Mr Crane. The accused had motive and opportunity. Her attitude to the husband, evidenced in the video of the first search was highly antagonistic.
I am satisfied and find that the content of Exhibit Q is false. Further I am satisfied that the content of the V and V Walsh letters are false. Those documents are very unsophisticated, as is the financial agreement. The only reasonable inference from the format and content of the financial agreement, Exhibit Q and the V and V Walsh letters is that they were prepared by the one hand for use in conjunction with one another. The documents located at the accused's home during the first search as described in paragraph 15 above bear remarkable similarity in layout and content to the V and V Walsh letters and Exhibit Q.
The location of the additional documents at the Accused's home so similar in style, layout and contents; the condition of the original Flexirent receipt when found, that is with the bottom signature cut off; the existence of the complete Flexirent receipt on the computer, together with the likelihood that the signature on exhibit Q and the Flexirent image originate from the same source; all of these pieces of evidence strongly suggest that it was the accused who forged Exhibit Q, the V and V Walsh letters and the financial agreement.
The location of documents very similar in style, layout and content to Exhibit Q at the accused's home strongly suggests that the accused was lying when she told Detective King that she had located Exhibit Q and the V and V Walsh letters in the husband's offence. I prefer the evidence of Ms Coad who said that the accused focused on evidence of the husband's affair. Her evidence about the accused getting into a frenzy over the affair was credible having observed the accused's behaviour during the search video. [37] ‑ [40]
At [41] the Magistrate excluded from consideration the possibility of Yasmin or Candice Crane constructing the document. The Magistrate then dealt with Weissensteiner v The Queen (1993) 178 CLR 217, setting out the relevant passages. She set out also the decision of the Full Court in Pickett v Fuderer (Unreported, WASC, Library No 980475, 27 August 1998) before concluding:
The evidence points overwhelmingly to the accused having forged Exhibit Q. I find that she forged that document and annexed it to her Family Court affidavit with the intention of it influencing the outcome of proceedings with respect to property settlement, such that Mr Crane's position would have been adversely affected. I find that Exhibit Q was uttered on 20 October 2005 when it was annexed to the accused's Family Court affidavit and filed. I find the charges proved beyond reasonable doubt. [43]
In my opinion the Magistrate has not misunderstood or misapplied the principle of Weissensteiner. Nor has she reversed the onus of proof. To the contrary, on the evidence that was before her she was of the view that it pointed overwhelmingly to the appellant having forged exhibit Q. This was a finding well open to her.
Counsel for the appellant in written submissions described the Weissensteiner point as the central plank in the Magistrate's reasons. However, I disagree. It was the positive evidence she found to be overwhelming, once she had excluded Yasmin or Candice as the possible authors of exhibit Q.
The Magistrate found that on the second search of the appellant's home on 15 March 2006 the appellant said that she had received one of the bundles of letters which were found in her possession, which the Magistrate relied on as having been sent to the appellant, in a yellow envelope in the mailbox some two to three weeks earlier, after she had put 'the others' in the Family Court.
There was evidence that on a computer in the appellant's home and available to her were images of V & V Walsh letterhead and signatures and different documents similar to those on exhibit Q. Expert evidence was that after overlaying the signature on a Flexirent image found on the computer with the copy of exhibit Q there was an indication that they were both the same generations of the original signature.
In my opinion, the Magistrate having correctly set out the principles in Weissensteiner did not err in taking into account, if she did, a lack of explanation provided by the appellant. I say 'if she did' because it is not completely clear that she did take it into account, she being satisfied that the evidence pointed overwhelmingly to the appellant having forged exhibit Q, that finding being based chiefly on the other evidence. I do not uphold ground 2.

Conclusion

In light of the unusual circumstances, the termination of counsel part‑way through, and the consequent completion of the trial when the appellant was unrepresented, I have not simply focused on the three grounds of appeal but have also examined the entire transcript of the trial and the exhibits, including the two search DVDs, to satisfy myself that there was not, for whatever reason, a miscarriage of justice.
I have also taken into account the appellant's affidavits, in particular her affidavit of 29 August 2008.
To the extent that I am able to do so, relying on the printed page and not on any observation of witnesses giving testimony, I am satisfied that there has been no miscarriage of justice and the appellant was properly convicted. In consequence, the appeal is dismissed.