Gage v Regina

[2006] NSWCCA 14

CITATION:	GAGE v REGINA [2006] NSWCCA 14
HEARING DATE(S):	1 February 2006
JUDGMENT DATE:	10 February 2006
JUDGMENT OF:	Giles JA at 1; Howie J at 59; Hoeben J at 60
DECISION:	Appeal dismissed.
CATCHWORDS:	Convictions for supply of amphetamines - juror discharged because might have seen accused at his place of work - jury then discharged, returned to panel and fresh jury chosen - whether reasonable apprehension of bias on part of fresh jury - no reasonable apprehension - whether verdict on one of the counts unsafe - on analysis of evidence, open to jury to be satisfied of guilt beyond reasonable doubt - whether miscarriage of justice in failure to discharge jury after possibly prejudicial evidence of dealing in other drugs - judge in best position to decide how to deal with the evidence - not later expressly referred to - direction to put aside any question of dealing in other drugs - no miscarriage - whether miscarriage of justice because counsel unprepared or failed to act on accused's instructions in conduct of defence - no deficiency which might have affected outcome of trial.
CASES CITED:	Ali v The Queen (2005) 214 ALR 1; M v The Queen (1994) 181 CLR 487; R v K (2003) 59 NSWLR 431; R v Skaf [2004] NSWCCA 37; TKWJ v The Queen (2002) 212 CLR 124; Webb v The Queen (1994) 181 CLR 41.
PARTIES:	Kenneth James GAGE v REGINA
FILE NUMBER(S):	CCA 2005/1642
COUNSEL:	T Watts - Appellant W Dawe QC - Crown
SOLICITORS:	Burston Cole & Co - Appellant S Kavanagh - Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 02/21/3442
LOWER COURT JUDICIAL OFFICER:	Williams DCJ

CCA 2005/1642
DC 02/21/3442

GILES JA
HOWIE J
HOEBEN J

Friday 10 February 2006

Kenneth James GAGE v REGINA

Judgment

1 GILES JA: On 12 February 2004 the appellant was indicted before Williams DCJ on two counts of supplying methylamphetamine and a third count of supplying not less than the commercial quantity of methylamphetamine. He pleaded not guilty. After a trial extending over eleven days, verdicts of guilty were returned on 25 February 2004. The appellant appeals against conviction.

2 There are four grounds of appeal -

“1. The balance of the jury (once discharged on the first day of the trial) should not have been placed back into the pool of jurors from which the “second” jury was chosen.

2. The verdict in relation to Count 1 is unsafe.

3. The evidence of unrelated possible cocaine dealing between the appellant and Compton should not have been admitted into evidence.

4. Defence counsel failed to act on the appellant’s instructions in relation to the conduct of his defence.”

Introduction

3 In August 2001 a police task force was established to investigate methylamphetamine distribution on the Central Coast of New South Wales. Under the assumed name Danny, an undercover police officer posed as a buyer of methylamphetamine and, using Police money, made purchases of methylamphetamine from Mr Ray Compton and Mr Mark Borgman. Mr Borgman supplied Danny with 6 gms of methylamphetamine on 14 September 2001. Mr Compton in association with Mr Borgman supplied Danny with 55 gms of methylamphetamine on 24 September 2001 and with 275.8 gms of methylamphetamine on 17 October 2001. ConversationS between Danny and Messrs Borgman and Compton were recorded using listening devices, and under the authority of telephone intercept warrants the police recorded other conversations between Danny and Messrs Compton and Borgman and many conversations between Mr Compton and the appellant. They conducted surveillance of events on 17 October 2001 involving the supply of the methylamphetamine.

4 It was the Crown case that for the three occasions the appellant supplied the methylamphetamine to Mr Compton, who in turn supplied it to Danny through Mr Borgman or directly. Supplies to Mr Compton on 14 and 24 September and 17 October 2001 were the subject of the counts 1, 2 and 3 respectively. On the appellant’s case, whilst Messrs Compton and Borgman may well have been supplying methylamphetamine to Danny, the appellant was not the source of that methylamphetamine. The appellant explained conversations with Mr Compton as supplying a substance known as EPO for use in enhancing the performance of Mr Compton’s greyhounds.

5 The principal evidence in the Crown case was that of Danny, through Detective Senior Constable Crass of the recorded telephone conversations, and through other police officers of the surveillance on 17 October 2001. Mr Compton had pleaded guilty to charges involving the supply of methylamphetamine to Danny, and gave evidence for the defence to the effect that he obtained his amphetamines from one Steve Starr and obtained only EPO from the appellant. The appellant gave evidence that he did not supply amphetamines to Mr Compton and that the conversations were about EPO. Mr Borgman was not called.

Ground 1: The jury panel

6 The appellant was arraigned and a jury was empanelled. The judge made his opening remarks and the Crown Prosecutor made her opening address. The jury retired.

7 One of the jurors then conveyed, through the Sheriff’s Officer, that he might have seen the appellant drinking at the hotel at which the juror worked as a bartender. He wrote in a note to the judge -

“I believe that the defendant /accused may be known to me by face and that he may also know me by face. Through work as a bartender I believe I may have served this gentleman 3-4 times. If this is correct I think this gentleman was or is an employee of City Rail. If this is the case then I do know the accused by face and presume that it is likely that he could obtain information of my details name & address etc.”

8 The juror was brought into court, in the absence of the other jurors. He identified the hotel. The judge asked whether he would be reassured if he were told that the appellant was not and had not been an employee of City Rail, and he said “I suppose so, but I mean, the accused knows where I work and all that, so … “. In answer to questions from the appellant’s counsel the juror accepted that he might be mistaken about seeing the appellant at the hotel; the transcript continues -

“STEWART: Even if you had seen the accused at your place of work on a couple of occasions, would that prevent you in any way from bringing an unbiased mind to bear on the proceedings?
JUROR: No.
STEWART: It wouldn’t have any impact on you being able to determine the matters on the merits of the case.
HIS HONOUR: But I gather from what you’ve just said to me that you’re concerned that, because he may know the place that you work, something could be followed up through that.
JUROR: Yes.”

9 The juror was asked to wait outside court. After brief discussion the judge said that he would discharge the juror “because he’s concerned about it and that’s obviously going to impinge upon his ability to carefully consider the matter”. According to the transcript -

“CROWN PROSECUTOR: Your Honour, there’s just one matter. Perhaps I should have asked a question of the juror as to whether he has discussed …
HIS HONOUR: No, he’s been kept separate.”

It is not clear when the segregation of the juror began, but it must have been closely linked with his communication with the Sheriff’s Officer.

10 The appellant’s counsel was asked to get instructions about continuing with eleven jurors. He said that his instructions were that the appellant wished to have a twelve person jury.

11 The juror was formally excused. The transcript records -

“IN THE ABSENCE OF THE JURY
HIS HONOUR: Does anyone have any objection to the proposal that we place the eleven remaining jurors back into the panel with the twelve jurors on that panel minus the ones who were objected to, and the jury reselected from that panel?
STEWART: I don’t see that as being irregular unless there’s some law that regards it as being irregular, but certainly there’s no objection to that course.
HIS HONOUR: I can’t remember. I haven’t got the Jury Act here with me, but I can’t remember seeing anything in the Jury Act about that.
CROWN PROSECUTOR: You Honour, I do have it. I was just leafing through it. It will mean that statistically it’s highly probable that about half of them we [sic] be re-empanelled again. They will have heard my opening twice. I don’t know that there’s any prejudice from having heard that twice that my friend might perceive.
STEWART: Yes, I’m instructed that there’s no objection to that course and we don’t see that it’s going to cause any prejudice to Mr Gage, despite the fact that they will hear the opening again, any jurors that are reselected on the panel. But I don’t see that as causing any particular prejudice to the accused.
HIS HONOUR: All right.”

12 The eleven remaining jurors were discharged, the judge explaining that the juror had been excused because “he felt, having sat there for a while, that he may have known the accused” and that the appellant was entitled to be tried by twelve jurors. The eleven jurors returned to the jury panel, and the judge told the panel (now less the one discharged juror and the members of the panel as to whom objection had been taken) what had occurred. The appellant was re-arraigned and a fresh jury was empanelled. In repeating his opening remarks the judge said that “four of you have already heard this”, and the fresh panel must have included four of the eleven jurors. In due course the jury returned the verdicts.

13 The appellant submitted that the juror had been with the other eleven jurors for a period of time before indicating that he might have seen the appellant at the hotel, and that even if the juror had from that time been kept separate from the other eleven jurors there was a risk that he had the opportunity to say something to the other jurors that would lead some or all of them to hold a bias against the appellant. To avoid any such risk, he submitted, the second jury should have been drawn from a panel which did not include the eleven jurors.

14 The foundation of the ground was not made clear, but no doubt was that there was a miscarriage of justice within s 6 of the Criminal Appeal Act 1912. It was not shown that, through something said by the juror, the other members of the jury had become aware of material not given in evidence which might have affected the verdict of the second jury (such as the internet search in R v K (2003) 59 NSWLR 431 or the visit to the park in R v Skaf [2004] NSWCCA 37). It was said that there was a risk that some unspecified information concerning the appellant might have affected the verdict of the second jury, and the basis of the ground was that there was a reasonable apprehension of bias (in the sense of distraction from impartial decision-making) whereby there was a miscarriage of justice.

15 In Webb v The Queen (1994) 181 CLR 41 a juror had given flowers to a person at the courthouse with a request that they be given to the mother of the victim. The judge declined to discharge the jury. In the High Court the test for jury bias was formulated as whether, notwithstanding any directions by the judge, a fair minded and informed member of the public might have a reasonable apprehension or suspicion that the juror or jury might not discharge their task impartially. A majority of the Court considered that the test was not satisfied.

16 If the juror told the other members of the first jury that he might have seen the appellant drinking at the hotel, that could not reasonably lead to any bias against the appellant. That the juror said anything further which might be held adversely to the appellant is wholly speculative. I am quite unable to conclude that, in the circumstances I have described, the test was satisfied in this case. The hypothetical member of the public would appreciate that the juror had, albeit a little belatedly, responded to the normal invitation to the jury panel to make known whether they knew the accused, the proposed witnesses, counsel and others involved in the trial. It is not irrelevant that the appellant’s counsel saw no difficulty in the course proposed by the judge. In due course the judge directed the jury to put aside “sympathies, prejudices, biases, things of that nature” and to “look at the evidence coldly, objectively, to determine whether the Crown has established beyond reasonable doubt in respect of each offence, whether the accused has committed them; and if they have not done that, you must acquit.” I do not think there might have been a reasonable apprehension or suspicion that the jury might do otherwise because of something said by the juror in question.

Ground 2: Unsafe verdict in relation to Count 1

17 Count 1 was the supply on 14 September 2001. Mr Borgman had supplied Danny with 6 gms of methylamphetamine on 7 September 2001. On 12 September 2001 Danny arranged to meet Mr Borgman in relation to another supply. At the arranged meeting on 13 September 2001, Mr Compton arrived instead of Mr Borgman.

18 Danny wanted better quality methylamphetamine, and Mr Compton said he could get “the grouse”. Mr Compton telephoned someone in Danny’s presence, said he needed “one”, and arranged to meet the person at 2.30 pm. He told Danny he would meet him at a McDonalds in the Rosehill area at about that time.

19 The meeting was at 10.45 am. At 10.58 am Mr Compton telephoned the appellant and said he wanted “one” straight away, and they agreed to meet at 2.30 pm that day. The Compton end of the intercepted telephone conversation was the same as that recorded by Danny’s listening device.

20 The meeting was put off by the appellant, who telephoned Mr Compton to say he “couldn’t get into where I had to go” and was running late. The appellant telephoned Mr Compton at 3.06 pm to say he still could not get in because “he … still hasn’t got here”. Mr Compton responded that he “got this bloke waitin’ too”, who “could be a big feller a week you know”; he said “I’ve got the other bloke waiting at Granville”. A little later the appellant told Mr Compton that there was noone there and he would ring someone else “and see if I can one of him just to give you one”, to which Mr Compton responded “Yeah as long as its good because … this’ll be a big fella a week”; he said he had “told him it could be (ind) but when I get your stuff it’s the fucken grouse”. At 4.01 pm the appellant told Mr Compton “no luck”, asked “Do you want me to ring that other bloke”, and was told “No, no, I’d rather get yours I’m saying that because that’s what he’s gonna buy”.

21 There were more conversations between the appellant and Mr Compton about the appellant’s endeavours to provide the “one”, with Mr Compton expressing concern that the “bloke” might not “hang around”. Mr Compton had been putting Danny off, and eventually told Danny that he needed more time to obtain the methylamphetamine. At 6.32 pm he told the appellant that the ‘bloke’ was “a bit pissed off you know but um I think he’s gonna hang around till the morning”. They arranged to meet in the morning “where I usually meet you”, at about 9.30 am.

22 On the next day, 14 September 2001, the appellant telephoned Mr Compton at 9.31 am to say he was about ten or fifteen minutes away from the KFC; Mr Compton said he was about to drive in.

23 At about 5.00 pm on that day Mr Borgman supplied the 6 gms of methylamphetamine to Danny, which Mr Compton said he had given to Mr Borgman for that purpose. There was no more direct evidence that the appellant supplied to Mr Compton the methylamphetamine which was supplied to Danny, but the Crown invited the inference that it was supplied as the “one” requested on 13 September 2001.

24 The appellant acknowledged the 10.58 am conversation about the “one”, but said that it was to do with EPO, and that the meeting with Mr Compton was put off because he could not get in touch with his supplier of EPO. Mr Compton said he obtained the methylamphetamine from Steve Starr, and there was evidence that Steve Starr was an alias used by a Steve Davis who was arrested on 17 October 2001 together with the appellant and Messrs Compton and Borgman.

25 The conversations between Mr Compton and the appellant on 13 and 14 September 2001, to only the most significant of which I have referred, amply entitled the jury to accept the Crown case. The initial call was made while Mr Compton was with Danny, in response to Danny’s request. Mr Compton was anxious to get the “one”, and the appellant was anxious to provide it. It was to be provided to a person who Mr Compton said was waiting for it; this can hardly have been the greyhounds. The person wanted “the grouse”, and was seen as a desirable customer. The story of EPO was plainly nonsense; at least, the jury was entitled so to see it.

26 The appellant relied on two particular matters.

27 The first was that in a telephone conversation with Mr Borgman early on 14 September 2001, Mr Compton said that he was “not gonna do the deal with him [in context, Danny]”, that he smelled a rat, and that “if he wants it he can get it off Julie”. In other conversations Danny was told that he had to go to “Julias”, and Mr Compton told Julia that Mr Borgman was on his way over. The supply to Danny was at Julie’s. The appellant suggested that the source of the methylamphetamine might have been Julie, rather than the appellant. That was not Mr Compton’s evidence, and despite smelling a rat Mr Compton did the deal, although through Mr Borgman and at Julie’s.

28 The second was that, according to other intercepted telephone conversations, at 8.01 am on 14 September 2001 Mr Compton told an unidentified male that he had to “nick down to Hornsby and back”, and they arranged to meet at 10.30 am at “Tam’s”. The unidentified male said that he would try to get a sample for Mr Compton. Mr Compton gave evidence that the conversation was probably about methylamphetamine. The appellant suggested that the source of the methylamphetamine supplied to Danny might have been the unidentified male. Again, that was not Mr Compton’s evidence.

29 The jury had evidence of an imminent meeting between the appellant and Mr Compton early on 14 September 2001. It was to be considered in the light of the evidence as a whole, including the conversations about the “one”. In my opinion, it was open to the jury to be satisfied beyond reasonable doubt that the appellant supplied to Mr Compton the methylamphetamine which was supplied to Danny: M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439.

Ground 3: The possible cocaine dealing

30 The intercepted telephone conversations had been put to CDs, and transcripts of the conversations had also been prepared. Early in the evidence of Detective Crass the transcripts were tendered as an aide memoire, and were admitted without objection. Detective Crass was asked by the Crown Prosecutor to play the conversations in succession, with occasional questions following the playing of a conversation.

31 The evidence came to call no 32, from the appellant to Mr Compton at 3.53 pm on 9 October 2001. The conversation began -

“RNC Hello
KG How’re ya goin’?
RNC Alright, mate.
KG Yeah, good. Um, listen, is that bloody, ah, you know that Pepsi Cola? The opposite to the Pepsi?
RNC Yeah.
KG Is that any good to ya?
RNC Um, depends – yeah, how much ya got?
KG Well, they – they – they’re looking, ah, at, ah, one thirty five (135) a keg of it.
RNC Yeah, it’s a bit rich.
KG But it’s apparently ninety eight (98) or somethin’, you know.
RNC Yeah?
KG Yeah
RNC I’d have to ask him about that”.

32 The conversation continued, and included Mr Compton asking “what about the other?” and some discussion of Mr Compton getting “four” and “the other too”.

33 After the conversation was played, Detective Crass was asked -

“Q. Detective, through your experience as a detective senior constable, I should ask you this, how many years have you been investigated [sic] drug supplies?
A. Between eight and ten years.
Q. In your experience during that time, are you aware of what the expression Pepsi Cola means?
A. It can have two meanings. Pepsi Cola can be referred to as amphetamine, but it also can be referred to when you say the opposite of Pepsi, it actually refers to cocaine. So it’s been obviously Pepsi being coke [sic].”

34 A short while later the Court adjourned. In the absence of the jury, counsel for the appellant applied for a discharge of the jury.

35 Counsel accepted that evidence of the telephone conversation was relevant to show continuing association between the appellant and Mr Compton leading up to the supply on 17 October 2001. He submitted that the Crown should not have led evidence from Detective Crass to suggest that the appellant may have been talking about cocaine, and therefore may have been involved in negotiations to obtain quantities of cocaine as part of his dealings with Mr Compton. He submitted that there was unfair prejudice in the suggestion that the appellant was involved in the supply of cocaine. The Crown Prosecutor submitted that the witness’ answer “could mean a number of things”, and that in context the conversation was about methylamphetamine; she said that she would make it quite clear that it was not part of the Crown case that the appellant was involved in the supply of cocaine.

36 The judge ruled -

HIS HONOUR: It may or may not be prejudicial. It is obviously prejudicial to the accused. Whether it is something that is unfairly prejudicial, by virtue of the interpretation given to what Pepsi Cola and the opposite means, I do not think it is a discharge point.”

37 Call no 32 was not specifically referred to in the addresses of the Crown Prosecutor or counsel for the appellant, or in the judge’s summing-up. Nothing was said about involvement in the supply of cocaine.

38 The appellant did not object to the evidence of call no 32 itself. It was submitted on appeal that the Crown should have edited out that part of the telephone conversation, given the knowledge of Detective Crass as to the meaning of the expression, but the content of the conversation was known to the defence and I do not think that the appellant was relieved from taking objection if he desired. The appellant’s counsel did not object to the question asking what the expression Pepsi Cola meant, perhaps understandably in order to avoid highlighting the conversation in the jury’s minds. The ground of appeal was more appropriately that the judge should have discharged the jury.

39 The appeal is against the conviction, not against the refusal to discharge the jury, but the judge was exercising a discretion in the circumstances which had arisen. He accepted the possibility of prejudice, but thought that there was not unfair prejudice warranting discharge. It was not submitted that he acted on a wrong principle, but rather that the jury should have been discharged because “the jury would inevitably have thought that the appellant was a person willing to be involved in the illicit supply of cocaine, notwithstanding that that was not part of the Crown case”.

40 The judge was best placed, in the atmosphere of the trial, to assess the effect upon the jury of understanding the appellant as referring to cocaine, and how best to deal with that possibility. This was one of a great many conversations between Danny, Mr Compton, Mr Borgman and others concerning the supply of amphetamines, and between Mr Compton and the appellant which on the Crown case were concerned with the supply of amphetamines. The conversations necessarily went beyond the particular drug dealing the subject of the counts. Although he did not spell it out, the judge plainly enough considered that the potential prejudice could be otherwise dealt with. Any question of involvement in the supply of cocaine was not thereafter brought back to the jury’s attention, and his Honour emphatically directed the jury in a way which, if the jury had brought to mind the reference to Pepsi Cola, was directed to causing them to put aside involvement in the supply of cocaine -

“But there is one matter that I have forgotten to say to you which is very important. You have heard, principally in the telephone intercept material I think it is – yes, in the telephone intercept material. You have heard evidence in some of that material that may give you cause to think that Mr Gage might have been involved in drug dealing in some other way, or committing some other offence other than the ones for which he has been charged. Whether you think that or not is going to be a matter for you, but if you do think that or feel that the evidence might establish that you cannot use that evidence as establishing in any way the offences before the court. You cannot reason that, ‘We have listened to all those tapes now, we are pretty sure this guy is dealing in drugs. We are not really satisfied about the methylamphetamine but we will convict him because we think he is dealing in drugs.’ That would be most unfair to the accused. It would lead to a miscarriage of justice and it would be unfair to the Crown as well.
You are entitled to use that evidence as evidence of the relationship that Mr Gage had with Mr Compton. You have heard evidence that they had a relationship that went back many years, with some hiatus in the middle of about 15 years or something like that. The Crown suggests to you that when you look at all those intercepts, that their relationship, certainly around this time, was a relationship involving the dealing in illegal substances, in particular on the days in question, methylamphetamine. So the Crown leads that evidence to you as establishing the relationship between the accused and Mr Compton … “.

41 I consider that it was well open to the judge to exercise his discretion in the manner he did. In my opinion, there was no miscarriage of justice in the admission of the evidence and the ruling that the jury should not be discharged.

Ground 4: Failing to act on instructions

42 The appellant said in an affidavit that he went to his solicitor’s office on the Friday before the Monday on which his trial was to commence “to talk about my trial, the evidence and other matters related to my defence”. He said that an earlier conference had not been arranged because he had relied on his solicitor “to make the necessary arrangements for the trial”. Although he was not happy about counsel, he was persuaded to have Mr Stewart of counsel appear “because of the trial being so close”. He said that “at least Mr Stewart knew what the case was about”, this referring to Mr Stewart’s appearance for him at the committal hearing.

43 The appellant said in the affidavit (the italicised words were added in the manuscript) -

“30. On one morning of the trial, I met Mr Stewart with a solicitor from Mr Hill’s office in the small conference room in the Downing Centre. Mr Stewart was asking me questions and then telling the solicitor what to write down on a note pad. It was all done in a rush because we were due in court and at the end of the conference I was asked to sign the solicitor’s notepad, which I did. I was not given the opportunity to read what had been written and later could not even rememberer signing it. I was not given a copy of the notes.

31. The following morning, I asked Mr Stewart if I could see the notes that I had signed and he handed me some sheets of paper, I then read through them and did not believe that they were a true record of what I had said. I then ripped the notes up into small pieces which I gave to my brother.

32. When we went into court shortly after, Mr Stewart told the Judge that I had ripped up his instructions and said that he was ethically compromised and could not continue to appear for me. He asked to withdraw from the case. He did this without any notice to me and I had not told him he was sacked. The Judge asked me if I could represent myself and [I] said no. He then gave us an adjournment to sort out our differences.”

44 The appellant relied on two particular matters as failures on the part of his counsel to act on his instructions in the conduct of his defence. They encompassed failures on the part of his solicitors, and were failures -

(a) to obtain the record of calls received on Mr Compton’s mobile telephone, which the appellant said he believed would show that on a day when Mr Compton said he met the appellant in Sydney, Mr Compton was on the Central Coast and therefore the meeting could not have taken place; and

(b) to call Mr Borgman, who the appellant said he believed would confirm Mr Compton’s evidence that the drugs he supplied to Danny were not supplied by the appellant.

45 The appellant submitted that there had been a breakdown in the relationship between himself and his counsel, to the point where the trial was not conducted in accordance with his instructions and evidence which may have assisted the defence was not placed before the jury, such that he lost a real opportunity for an acquittal.

46 The Crown relied on evidence from the appellant’s counsel at trial and an instructing solicitor in response to the appellant’s evidence. There was some cross-examination of these deponents.

47 There is no doubt that there was a difficult relationship between the appellant and his counsel. On the third day of the trial the transcript records Mr Stewart informing the judge that the written and signed instructions on which he had cross-examined Danny had been regained by the appellant and torn into pieces, and foreshadowing withdrawing from the proceedings. The appellant complained to the judge of a number of matters, including his solicitor’s attention to his defence; he said that the signed instructions had been signed on the spur of the moment and that he “would not have known what I signed on that paper” and that he had still not read it when he tore it up. This must have been the occasion to which the appellant referred in his affidavit, although he there said he read the note before tearing it up. Some time was allowed, and counsel remained representing the appellant. On the sixth day of the trial the appellant asked to be permitted to say something concerning the calling of Mr Borgman, and did so, to the effect that he had “subpoenaed him at my own risk”. On the eight day of the trial Mr Stewart told the judge that the appellant had given him “a list of things about which he is concerned that he didn’t have the opportunity to elaborate on during the evidence that he gave before the jury”; he went through them, asking for leave to recall the appellant, and the appellant then gave some further evidence. At the conclusion of the judge’s summing-up counsel was given the opportunity to ask for anything further; the appellant said that he would “like to say something for myself”, and did so, including complaining that some telephone intercepts evidence had not been presented to the court and as to Mr Borgman, “I was talked out of calling him in as a witness because of his sentencing situation, and I just know that he would have – if he had any morals whatsoever, he would have told the same story as Mr Compton, sir.”

48 The appellant proffered no evidence of what the torn-up instructions were and what the appellant had said when giving instructions, of what the record of calls received on Mr Compton’s mobile telephone would have shown (the meeting in question was not even identified), or of what Mr Borgman would have said.

49 The ground of appeal posed the question in s 6(1) of the Criminal Appeal Act, whether “on any other ground … there was a miscarriage of justice”. The question does not directly require consideration of whether there was a good or bad relationship between the appellant and his counsel, whether what occurred is to be categorised as flagrant incompetence or in any other pejorative way, and in particular of whether there was a failure to conduct the defence in all respects in accordance with the appellant’s instructions. The ultimate question is whether or not what occurred or did not occur resulted in a miscarriage of justice: TKWJ v The Queen (2002) 212 CLR 124 at [30], [79]; Ali v The Queen (2005) 214 ALR 1 at [18].

50 In TKWJ v The Queen McHugh J described at [76] how the conduct of counsel may deprive the accused of a fair trial according to law, such as by failing to cross-examine material witnesses for no valid reason or failing to address the jury. The appellant submitted that his instructions had not been properly sought and obtained, referring to the conference and engagement of Mr Stewart only shortly before the trial and his evidence that the torn-up instructions did not truly record what he had said. He submitted, in effect, that he thereby did not have a trial according to law, and so there was a miscarriage of justice.

51 There is no substance in this. Mr Stewart had appeared for the appellant at committal. The transcript shows that he appeared for the appellant on 30 January 2004, when commencement of the trial on 9 February 2004 was envisaged. The jury was empanelled on 12 February 2004. On 11 February 2004 Mr Stewart wrote advising of the appellant’s prospects in the trial, amongst other things saying that he had gone through the evidence relied on by the Crown with the appellant “and pointed out to him the problems he has with the evidence”. There was ample occasion to take instructions, and the transcript reflects the conduct of a defence on instructions. Mr Stewart gave evidence that the instructions later torn up were read to the appellant and given to him to read before he signed them, which the probabilities, the discrepancy in the appellant’s evidence about reading them and the appellant’s unsatisfactory evidence about calling Mr Borgman (see later) cause me to accept. I am not satisfied that there was failure to attend to obtaining instructions such that there was not a trial according to law.

52 In TKWJ v The Queen McHugh J also said at [79] that -

“ … the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the trial? Second, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, "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". The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.” (citations omitted)

53 Criminal proceedings are adversarial. It will be particularly difficult to establish miscarriage of justice when the alleged failing or error concerned a forensic choice on which competent counsel could have differing views; the more so when the choice was made for perceived forensic advantage. Further, effect on the outcome of the trial is not to be presumed, and failure to call evidence may not make out a miscarriage of justice unless it is shown what the evidence would or at least might have been and its effect can be assessed.

54 As I have said, I accept Mr Stewart’s evidence that the instructions later torn up were read to the appellant and given to him to read; I do not accept that there was failure to act upon instructions in the cross-examination of Danny. Without identification of the meeting in question and knowledge of the record of calls received on Mr Compton’s mobile telephone, I am not satisfied that failure to obtain the record of calls might have affected the outcome of the trial, let alone that there is a significant possibility that it did so. The calling of Mr Borgman needs further explanation.

55 According to the appellant in his affidavit, Mr Stewart said that Mr Borgman was unreliable, and that he had a criminal background and the jury would not believe him. The appellant said that he wanted Mr Borgman to give evidence and for the jury to make up its own mind about about him, but that he was persuaded by Mr Stewart not to call him “against my own wishes and judgment”, hence his complaint after the judge’s summing up.

56 The correct position is quite different, and in this respect also I do not accept the appellant’s evidence. The appellant had wanted Mr Borgman to be called. Mr Stewart and his instructing solicitor Mr Nayel conferred with Mr Borgman. When asked what he would say if in cross-examination he was asked for the source of the methylamphetamine, Mr Borgman said “a bloke called Kenny”. When asked “Kenny who?”, Mr Borgman said either “What do you want me to say?” or “What does Kenny want me to say?” Mr Nayel’s file note of a conference with the appellant on 19 February 2004 included that Mr Borgman said that he “got the drugs of [sic] a bloke called Kenny”, the advice that calling Mr Borgman as a witness was likely to be prejudicial to the appellant’s case, and the instructions not to call Mr Borgman.

57 The advice was plainly correct, the instructions were given, and even if there had been failure to comply with instructions to call Mr Borgman (which there was not) I do not think it could be concluded that the appellant thereby lost a chance of acquittal.

The result

58 In my opinion, the appeal should be dismissed.

59 HOWIE J: I agree with Giles JA.

60 HOEBEN J: I agree with Giles JA and the order which he proposes.

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