Finch v The Queen (No 2)

[2016] NSWCCA 153

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Finch v R (No 2) [2016] NSWCCA 153
Hearing dates:	On the papers
Decision date:	04 August 2016
Before:	Payne JA; McCallum J; Davies J
Decision:	Leave to add a Proposed Ground 11 to the notice of appeal alleging incompetence of defence counsel at the trial is refused.
Catchwords:	PRACTICE AND PROCEDURE – criminal appeal – whether leave should be granted to add a further ground of appeal
Legislation Cited:	Criminal Appeal Act 1912 (NSW) s 5 Criminal Appeal Rules (NSW) r 25A Drug Misuse and Trafficking Act 1985 (NSW) s 4
Cases Cited:	Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312 Alkhair v R [2016] NSWCCA 4 Finch v R [2016] NSWCCA 133 R v Birks (1990) 19 NSWLR 677
Category:	Procedural and other rulings
Parties:	Appellant: Stephen John Finch Respondent: Regina
Representation:	Counsel: Appellant: Self represented Crown: V Lydiard   Solicitors: Appellant: Self represented Crown: Solicitor for Public Prosecutions
File Number(s):	2010/291599
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 11 February 2013 Before: Berman SC DCJ File Number(s): 2010/291599

Judgment

1. THE COURT: On 13 July 2016 the principal judgment was delivered by the Court in this appeal: Finch v R [2016] NSWCCA 133. In order to understand what follows, this judgment should be read together with the principal judgment.

2. The applicant was self-represented at the hearing of the appeal. During the hearing he sought leave to raise a further ground of appeal concerning the alleged incompetence of his counsel at trial, which was referred to in the principal judgment as “Proposed Ground 11”.

3. By Proposed Ground 11 the appellant sought to contend that defence counsel at the trial was incompetent in two respects:

1. he was often late; and

2. he “didn’t seem to be aware about the laws concerning LSD”, which the Court concluded meant that he did not object to evidence concerning the method of consumption of cardboard LSD or make the submission concerning liquid LSD referred to in addressing Ground 3 on the Notice of Appeal.

4. The Court reserved its decision on Mr Finch’s application to add proposed Ground 11 at the hearing of the appeal and indicated it would give the parties an opportunity to address the issue in writing after delivery of the principal judgment.

5. On 13 July 2016, in respect of Proposed Ground 11 the Court made the following order:

(4) Within 14 days the parties exchange with one another and file written submissions of no greater length than 10 pages each with the Registrar of the Court of Criminal Appeal on the subject of whether:

(a) having regard to these reasons, leave should be granted to amend the notice of appeal to include Proposed Ground 11; and

(b) if leave under paragraph 4(a) of these orders were granted, what orders the Court should make and whether it would be necessary or desirable to receive any further evidence or to conduct any further oral hearing of the matter.

Applicant’s submissions

6. No submissions were received by the Court from Mr Finch within the period fixed by the order made on 13 July 2016.

Crown submissions

7. The Crown filed submissions on 27 July 2016. After addressing the relevant legal tests relating to an allegation of incompetence of counsel, the Crown advanced the following submissions.

1. Concerning lateness, the Crown submitted that there were only two occasions on which it was apparent from the transcript that defence counsel was late to Court. In the first instance the applicant’s solicitor was present. In the second instance the primary judge adjourned the hearing until defence counsel was present. The Crown submitted that in both cases counsel’s lateness appears to have been unavoidable, that the lateness did not suggest incompetence, and that no injustice to the applicant occurred.

2. Concerning the LSD issue, the Crown referred to the Court’s findings at [113], [115], [131], [133], [221] and [222] of the principal judgment and submitted that the forensic choices apparently made by defence counsel were open to him, that those forensic choices did not suggest incompetence, and that no injustice to the applicant occurred.

8. The Crown submitted that leave to rely upon Proposed Ground 11 should be refused. The Crown further submitted that it was neither necessary nor desirable that the Court receive any further evidence or conduct any further oral hearing of the matter.

Consideration

The requirement for leave

9. Leave is required for Mr Finch to rely upon a further ground of appeal. Section 5 of the Criminal Appeal Act 1912 (NSW) provides that a person convicted on indictment may appeal with the leave of the Court on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the Court to be a sufficient ground of appeal. The present is a mixed question of fact and law.

10. Further, Rule 25A of the Criminal Appeal Rules (NSW) provides that where the appellant intends to rely on grounds of appeal not stated in his notice of appeal or application for leave to appeal, he shall, within 28 days after giving his notice of appeal, or of application for leave to appeal, send his notice of additional grounds of appeal to the Registrar. The Court may extend the 28-day period. An amendment would thus require the Court to grant such an extension.

Relevant legal test

11. As the principal judgment set out, the seminal case with respect to incompetence of counsel is R v Birks (1990) 19 NSWLR 677 in which Gleeson CJ said at 685:

As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.

12. In Alkhair v R [2016] NSWCCA 4 Macfarlan JA (Rothman J and Bellew J agreeing) comprehensively summarised the applicable principles with respect to incompetence of counsel. His Honour conducted an extensive review of the cases decided by this Court since Birks, and concluded (at [31]):

1. To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel’s conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial.

2. Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf.

3. Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant’s legal representatives’ reasoning at trial or to evidence as to communications between the appellant and those representatives.

4. The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open.

13. Finally, rational forensic decisions or strategies of trial counsel, determined objectively, do not give rise to a miscarriage of justice: Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312 at [34] (per Basten JA) and [56] (per Adams J).

The issue of lateness

14. The Court has carefully examined the transcript of the trial. It appears that defence counsel was late to Court on two occasions during the trial.

15. In both instances Mr Finch’s solicitor was present. It is apparent that no complaint was made by Mr Finch’s solicitor on either occasion that there was any unfairness occasioned to Mr Finch.

16. On the first occasion, Mr Finch’s solicitor explained that the time was being spent productively editing the videotape to be played to the jury. The jury were not made aware that defence counsel was late. On the second occasion the trial judge adjourned the hearing until defence counsel arrived.

17. Mere lateness on two occasions, without more, does not meet the tests for incompetence of counsel described at [11]-[13] above.

18. There is no basis to conclude that the lateness of counsel on these two occasions occasioned any unfairness in the trial to Mr Finch.

Knowledge of laws relating to LSD

19. In the principal judgment the Court reached conclusions which are fatal to Mr Finch’s claim in this respect.

20. First, the Court concluded that the forensic choice made by defence counsel not to challenge DS Wheatley’s evidence concerning the method of consumption of the cardboard tabs impregnated with LSD was objectively open to him. This was so because, regardless of the outcome of that objection and any subsequent ruling about the cardboard tabs, the appellant would still have faced conviction on the same charge as a result of the liquid LSD: see [113].

21. Second, the applicant’s submission that the cardboard tabs impregnated with LSD and the liquid containing LSD fell outside the scope of s 4 of the Drug Misuse and Trafficking Act 1985 (NSW) was rejected: see [131].

22. Third, the Court concluded that the other forensic choices made by counsel concerning the LSD referred to at [133] and [221]-[222] of the principal judgment were objectively open to him. The verdicts were not unreasonable or against the weight of the evidence.

23. Having regard to the Court’s findings, the manner in which defence counsel conducted the defence did not reveal a misunderstanding of the law relating to LSD.

24. In these circumstances, the conduct of defence counsel was not negligent, let alone did it approach the standard of flagrant incompetence necessary to establish the incompetence of counsel ground.

Conclusion and Order

25. For the foregoing reasons, the matters sought to be raised by Mr Finch in Proposed Ground 11 of the Notice of Appeal are without merit. They each raise mixed questions of fact and law. Given the conclusions the Court has reached, leave should be refused to rely upon Proposed Ground 11.

26. The order of the Court is:

1. Leave to add a Proposed Ground 11 to the notice of appeal alleging incompetence of defence counsel at the trial is refused.

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Decision last updated: 04 August 2016