Lunam v The State of Western Australia
[2007] WASCA 133
•26 JUNE 2007
LUNAM -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 133
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 133 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:245/2005 | 5 APRIL 2007 | |
| Coram: | STEYTLER P WHEELER JA EM HEENAN AJA | 26/06/07 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JEANETTE CRAWFORD LUNAM THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3)(c) |
Case References: | Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416 Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13 Nudd v The Queen [2006] HCA 9 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LUNAM -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 133 CORAM : STEYTLER P
- WHEELER JA
EM HEENAN AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : FENBURY DCJ
File No : IND KAL 105 of 2004
Catchwords:
Turns on own facts
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(c)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M J Aulfrey
Respondent : Mr K P Bates
Solicitors:
Appellant : Ian Hope
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416
Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13
Nudd v The Queen [2006] HCA 9
(Page 3)
1 STEYTLER P: I agree with what has been said by each of Wheeler JA and EM Heenan AJA.
WHEELER JA:
The appeal
2 This appellant appeals her conviction in the District Court at Kalgoorlie in August 2005 in respect of manufacturing methylamphetamine on 26 December 2003, possession of methylamphetamine with intent to sell or supply on the same date, and manufacturing methylamphetamine on 7 January 2004.
3 The sole ground of appeal in this matter is that:
"A miscarriage of justice occurred in that the Appellant was not able, due to the refusal of defence counsel to follow instructions, to call the evidence of witnesses providing exculpatory material to the allegations raised in the trial against her."
4 That ground raises three issues. They are:
(1) did defence counsel refuse to follow instructions;
(2) what, if anything, is the legal relevance of the refusal of defence counsel to follow instructions (if that occurred); and
(3) were there witnesses whose evidence would have been exculpatory, who were not called?
5 The ultimate question is, as the introductory words of the ground recognise, whether there was a miscarriage of justice occasioned by all or any of the matters alleged by the appellant (s 30(3)(c) Criminal Appeals Act 2004 (WA)).
The evidence at trial
6 In order to understand the "exculpatory" evidence with which the appeal is concerned, it is necessary to give an overview of the appellant's trial.
7 The State case at trial was that the appellant aided one David Smith in relation to the manufacture of methylamphetamine on two occasions: by giving him funds to purchase equipment; providing him with a vehicle for transport; allowing her premises and places known to her to be used
(Page 4)
- for the purpose of manufacture; allowing her address to be a place where equipment for manufacture was sent; picking up items from the post office; paying some of Smith's expenses; and by directly buying items with which to make methylamphetamine. The evidence for the prosecution included surveillance evidence, records of conversations, records of searches of various premises, including the appellant's premises, certain admissions by the appellant and the evidence of David Smith. The appellant's defence at trial was that she was a naive individual who had a mistaken belief about Smith's activities, that belief being that he was engaged in making "moonshine", and that she lacked the knowledge which might have enabled her to appreciate that he was in the process of manufacturing methylamphetamine. The evidence of Smith was plainly of considerable importance.
8 In more detail, the evidence making up the State case was as follows. There was direct evidence of Mr Smith to the effect that the appellant had agreed to assist him in making methylamphetamine and had done so by engaging in the various activities described. In addition, the mining lease where Smith was apprehended by police in the process of manufacturing methylamphetamine was registered to the appellant, and various items associated with the manufacture of methylamphetamine were located by police at that mining lease. The appellant admitted in her evidence that she had taken Smith to the mining lease, but maintained it was to show him the "local area" and to go camping.
9 Smith gave evidence that the appellant had taken two bottles of methylamphetamine that he had manufactured on 26 December 2003 and that he had seen her hide them "behind" her house. During a search of her premises, she directed police to a drink bottle hidden under the house which contained 26.5 grams of methylamphetamine. On 8 January 2004 her husband directed police to a second bottle which contained 24.7 grams of methylamphetamine, also under the house. Her evidence was that Smith had told her that he had left a package under the house, but she thought it was "a bit strange", and that this was the item to which she had directed police. In relation to the second bottle, the appellant said she knew nothing about it, and did not know how it came to be under her house.
10 A set of scales containing traces of methylamphetamine was located by police in the boot of a blue Subaru belonging to the appellant. She said that she knew nothing of this item and presumed it belonged to her son, who was a drug user. Smith's evidence was that he had weighed manufactured methylamphetamine on scales belonging to the appellant.
(Page 5)
- Similarly, a used syringe containing traces of methylamphetamine was located in a personal organiser belonging to the appellant in the front seat of her vehicle. She accepted that the personal organiser was hers, but again said that she presumed that the syringe belonged to her son. It was, however, her evidence that she had used methylamphetamine intravenously on two prior occasions.
11 There were receipts for the purchase of various items found either in the appellant's handbag, or in a vehicle belonging to her, while other transactions were identified with certain of the appellant's bank records. These all related to items which were in fact used, or were able to be used, for the manufacture of methylamphetamine. The appellant admitted purchasing items for Smith, but variously explained them as being given to Smith either in order for him to make "moonshine", or as gifts for innocent purposes.
12 There was also evidence of a money order made out to Smith by the appellant in the amount of $100 located in the front of her blue Subaru. Her evidence was that she gave this to Smith for Christmas for his children. Smith gave evidence that the appellant gave him about $500 in cash to purchase more equipment for the manufacture of methylamphetamine, and a transaction slip showing a $600 withdrawal from her cheque account was located in her vehicle. Smith further gave evidence that the appellant paid for glassware for the manufacture of methylamphetamine in his presence by way of a postal note in the sum of "$950 or $920", using a false name. There was evidence from a post office employee of a $930 money order being processed on 10 December 2003, with the purchaser details being given as "Mick Johnson, Coolgardie Caravan Park". The appellant lived at a caravan park in Coolgardie which was called the Haven Caravan Park.
13 It was Smith's evidence that the appellant had booked a room at the Hannan Motel in Kalgoorlie so that he could finish crystallising the methylamphetamine, following an argument between the appellant and her husband at the mining lease. Hotel records of the Hannan Motel indicated that the appellant had stayed there on the nights of 26 and 27 December, and a transaction for that motel was also shown in her bank records. I deal with her evidence about that stay later.
14 It was Smith's evidence that he had met the appellant in December and that immediately thereafter she started to assist him by purchasing materials. It was her evidence that she had met him in about early November and that a friendship gradually developed between them. The
(Page 6)
- telephone records which were in evidence did not show telephone conversations between the appellant and Smith prior to 10 December. The appellant admitted in her evidence that when she met Smith, she was introduced to him by an acquaintance, whom she had "heard" was a drug dealer, and that she had "heard" that Smith had just got out of gaol for some offences to do with dealing in drugs.
"Exculpatory" witnesses
15 There are a number of witnesses who, according to the appellant's written submissions, should have been called on behalf of the appellant. In my view, it cannot be said that the failure to call any of them resulted in a miscarriage of justice, for the reasons set out hereunder.
Robert Lunam
16 The written submissions on behalf of the appellant are to the effect that Robert Lunam, a witness named on the back of the indictment, but not called by the State because he was overseas at the time, would have provided general evidence supporting the appellant's credibility. It is also submitted that, in particular, he would have contradicted the assertion made by Smith that Robert Lunam was aware that the appellant and Smith were manufacturing methylamphetamine and confronted them with this accusation.
17 This witness can be dealt with briefly, since in oral submissions counsel for the appellant resiled from the proposition that the evidence of Robert Lunam was generally supportive of the appellant, and conceded that, on the whole, Robert Lunam's statement added what the appellant's counsel described as "a great deal of circumstantial evidence" to the case against the appellant.
18 So far as the specific allegation in relation to his awareness of the making of methylamphetamine is concerned, Robert Lunam's statement contains his account of a conversation with the appellant in which she told him that she and Smith were making alcohol. However, it also contains this passage:
"[Smith] opened up the microwave and took out a clear Pyrex jug with a white liquid in it.
The jug was about three-quarters full.
I said: 'What's that?'
(Page 7)
- Jeanette [the appellant] said: 'It's alcohol'.
I said: 'I don't care what it is. Get the shit out of here.'"
19 The passage, in the context of the statement, suggests that Robert Lunam was suspicious about the nature of the substance in the jug. It also suggests that the appellant was in close proximity to the substance and was able to see for herself what it was. That is significant in a context in which she had conceded that she was a user of methylamphetamine herself, and associated with persons (including her son and the person through whom she met Smith) whom she knew or understood to be involved with the drug. A reasonable jury confronted with the evidence of Robert Lunam might well have seen it as supporting a conclusion that the appellant was in a position to be aware, and was aware, of the true nature of the substance Smith was manufacturing. The absence of Robert Lunam as a witness was, if anything, favourable to the appellant.
Terrance Harvey
20 The appellant tendered at the hearing of the appeal an affidavit of Terrance Harvey. In it, Mr Harvey asserts that he was a user of drugs and had used drugs in the appellant's car and had left a used packet and needle in that car. He also said that the boot contained a set of scales which belonged to him and which he had not told the appellant about. To that extent, his evidence would have supported the evidence of the appellant, which was to the effect that she "presumed" that those items belonged to her son.
21 That evidence would have been limited in its usefulness to the appellant, however. As Harvey was a self-confessed drug user, there may have been difficulties with his credibility (as there plainly were with Smith's, for the same reason). In any event, as the appellant had admitted to the use of methylamphetamine in the past, it would still have been open to the jury to conclude that she was sufficiently familiar with the drug not to be mistaken about what Smith was making.
22 Other aspects of his affidavit are inconsistent with evidence given by the appellant. Mr Harvey said that before he met Smith for the first time he had been told by the appellant that she was planning to lend a motor vehicle to Smith, and she wanted him to form an opinion of Smith. That is not consistent with the appellant's evidence, which was to the effect that she lent her vehicle to Smith on the first occasion on which she met him, when she was introduced to him by their mutual acquaintance. Importantly, there is an apparent inconsistency between the affidavit of
(Page 8)
- Mr Harvey and the evidence given by the appellant at trial about certain events on 26 December 2003. As I have noted, it was part of the State case that the appellant had booked into a motel with Smith pursuant to her agreement to assist him in the manufacture of methylamphetamine. It was the appellant's evidence that she had booked the hotel room with Smith for essentially three reasons. In re-examination, she said that it was in part to get away from her husband, with whom she had had an argument, and in part with some thought of furthering her relationship with Smith, since she thought that there was a "hint of romance" there. Further, particularly in cross-examination, she added that she wanted to take a hot shower at the motel. It was also her evidence that, although she had been involved in the booking of the motel room, she had then been called away to an "emergency" of some sort involving her son, to sort out a fight between him and his brother. The jury apparently regarded this issue as being of some importance, and asked his Honour why Mr Harvey had not been called to give evidence about the "family fight". His Honour, quite properly, told the jury not to speculate about that matter.
23 Harvey's affidavit is consistent with the appellant's evidence about 26 December to the extent that he deposes that the appellant came to his house on that day and "indicated" that she had had an argument with her husband. This evidence would appear to be hearsay, and it is not clear to me on what basis it was suggested that it could have been adduced at trial. In any event, Harvey also deposes that she had asked him for a shower, but due to the lack of hot water at Harvey's house she was unable to do so and departed. Assuming it to have been admissible, then the points in support of the appellant's evidence were the reference to an argument with her husband and the reference to a hot shower. However, to the extent that it suggests that the appellant's principal concern was to have a hot shower somewhere away from her husband, it appears to be inconsistent with the suggestion that she had booked the motel in part because of an interest in furthering her relationship with Smith. The jury might well ask, if that was an important part of her motivation, and if showers were available at the motel, why she had sought to shower at her son's house. Further, the affidavit makes no reference whatever to any fight between any of the appellant's children. Rather than suggesting that the appellant arrived at Harvey's house because of some sort of family emergency involving her children, the affidavit tends to suggest that her only reason for attending at Harvey's house was to have a hot shower somewhere away from her husband.
24 Finally, Harvey's affidavit says nothing about the drugs found under the house. No doubt he would have been cross-examined by the State
(Page 9)
- about those items if he had been called as a witness, and any denials of his association with them would have tended to confirm the inference which the State said should be drawn from the way in which those items were found under the house. That was, of course, that the appellant had hidden them there.
25 In summary, some aspects of the affidavit of Harvey suggest that he would have been able to give evidence supporting the appellant's account, in relation to the drug-related materials found in her vehicle. It appears also that his evidence would have contradicted, or been inconsistent with, the evidence of the appellant in relation to certain matters concerning her relationship with Smith, particularly concerning her first dealings with Smith and the events of 26 December. It is entirely silent in relation to the drugs found under the house.
26 The probable effect of Harvey's evidence overall, if given at trial, is therefore speculative. It may have led the jury to believe some aspects of the appellant's evidence which they otherwise may have been inclined to reject. In other respects, it may have been destructive of her credit and reinforced inferences which the jury might well have been inclined to draw about the drugs found under the house.
Julianna Harvey
27 Finally, there is the evidence of Julianna Harvey. She is the appellant's daughter. It appeared from the evidence at trial that she has some sort of mental illness, or mental disability, the nature of which was not made clear, but which is such that she has difficulty in managing her own financial affairs.
28 Her affidavit simply deposes that the appellant has a power of attorney with respect to Julianna Harvey's affairs, and held that power of attorney in December 2003 through to January 2004. It deposes that, during the period December 2003 and January 2004, Julianna Harvey borrowed a number of cash sums from the appellant, and had possession and use of the appellant's bank access card and access to the appellant's bank accounts. She would often draw funds from the appellant's bank accounts from time to time as required. She also deposes that, on 11 December 2003, or shortly thereafter, the appellant gave her the sum of $600 for Christmas shopping.
29 The only significance of this evidence is that it may, if accepted by the jury, have accounted for some, but by no means all, of the withdrawals from the appellant's bank accounts which the State suggested tallied
(Page 10)
- closely with Smith's evidence about the sums given to him. If accepted, it was to that extent exculpatory, but was of limited significance in the light of the number of transactions which would still be left unexplained, and in the light of the close correlation between Smith's estimate of the value of money given and materials supplied to him, and the appellant's own estimation. It was the appellant's evidence at trial that, on reflection, although she told police she had given Smith about $1500, that figure was "plucked from the air". Any reasonable jury might well have been impressed by the close correlation between that figure and the sum of $1461 which was apparently the total cost of the inverter, the wok, the pump, the money order and the glassware which Smith asserted she had assisted him to purchase.
30 Further, Julianna Harvey's affidavit is difficult to accept at face value as credible. It raises the obvious question of why, if Julianna Harvey's condition was such that she was unable to manage her own financial affairs, the appellant had apparently entrusted her with the appellant's own bank card and access to the appellant's own bank accounts.
Overview of the "exculpatory" evidence
31 Leaving aside for the moment the question of the failure to follow instructions, the evidence of Robert Lunam, Terrance Harvey and Julianna Harvey is not fresh evidence. As I understand the submissions made on behalf of the appellant, the submission is made that, if the failure to call the evidence resulted from a failure of counsel to follow instructions given to him, then it would be appropriate to apply a test the same as, or akin to, the test applied in relation to either fresh or new evidence. The principles which I shortly develop in relation to the failure to follow instructions, suggests that this submission may not be correct. However, assuming, for present purposes, that submission is correct, the principles applicable in relation to fresh evidence are conveniently discussed in Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13, at [416] per Steytler J. His Honour said:
"Where the evidence is fresh, the test appears to be that of whether the petitioner has established that there is a significant possibility that, in the light of all the admissible evidence (including that given at the trial), a jury, acting reasonably, would have acquitted him or her. Cases supporting that proposition include Gallagher, above, at 399, 402 and 421; Mickelberg, above, at 273, 275 and 302 and Mallard, above, at [16]. In Mickelberg v The Queen, unreported; CCA SCt of WA;
(Page 11)
- Library No 990056; 12 February 1999, the more material authorities were conveniently summarised in the following extract (pages 19 - 22):
'Where an appeal is based upon evidence which was not called at trial, a number of authorities have explored the way in which such evidence may demonstrate that a miscarriage of justice occurred.
…
In Lawless v The Queen (1979) 142 CLR 659 Aickin J explained the task of the Court of Criminal Appeal in regard to such a determination by reference to the joint judgment of Rich and Dixon JJ in Craig v The King (1933) 49 CLR 429 at 439 (which was quoted by Menzies J in Ratten v The Queen at 526, and by Gibbs CJ at 396 in Gallagher) namely:
"A court of criminal appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial, the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced."
Subsequently, in Gallagher v The Queen, Mason and Deane JJ expressed the test in terms of a "significant possibility" of a jury bringing in a different verdict. Gibbs CJ (at 399) agreed (at 402) with their Honours that:
"The Court of Criminal Appeal will conclude that the unavailability of the fresh evidence at the time of the trial will have involved a miscarriage of justice if the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the new evidence had been before it at the trial."
- His Honour emphasised that:
"No form of words should be regarded as an incantation that will resolve the difficulties of every case. No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred. It is only a practical guide to the application of that principle to say that the court will grant a new trial if, having approached the matter with the caution that is always demanded when fresh evidence is produced in a criminal case, and having weighed the credibility of the fresh evidence and considered its cogency in the light of the evidence given at the trial, it considers that a jury might reasonably have reached a different verdict if the evidence had been available at the trial".
Dawson J expressed a test similar to that enunciated by Gibbs CJ and Mason and Deane JJ, and stated (at 421) that the court would need to conclude that "a jury might entertain a reasonable doubt about the guilt of the appellant".
In Mickelberg v The Queen (1989) 167 CLR 259 Mason CJ (at 273) followed the test endorsed in Gallagher v The Queen by four of the five justices and expressly approved the remarks of Dawson J which we have quoted. Brennan J (at 275) expressed his preference for a test expressed in terms of "likely" and not "might". Deane J adopted the "significant possibility" test. Toohey and Gaudron JJ (at 302) said:
"In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at the trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the other evidence had been before it ... or, if there be a practical difference, that there is 'a significant possibility that the jury, acting reasonably, would have acquitted the [accused] ...'. For ease of expression we proceed by reference to the formulation that the jury is likely to have entertained reasonable doubt had all the evidence been before it, noting, in that context, that it is
- necessary that the fresh evidence be credible in the sense that a reasonable jury could accept it as true, but it is not necessary that the court should think it likely that a reasonable jury would believe it."
- …
Although the ultimate question concerns the court's opinion as to the effect of the fresh or new evidence on a jury, it is inevitable that, in the process of answering that question, the court will form its own assessment of the credibility of the witnesses. Regard will be had to the fact that, as Mason CJ, Deane, Dawson and Toohey JJ pointed out in … [M v The Queen (1994) 181 CLR 487 at 494], "a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced". Regard, however, will also be had to the possibility that, in some instances, a witness regarded by the court as credible beyond reasonable doubt, may be seen by a jury in a different light, and that a jury might have a different view of a witness, regarded by the court as not being capable of belief'."
32 Applying those principles in the present case, it can be seen that a Court might be justified in having reservations about the cogency and plausibility of Julianna Harvey's evidence, even on the face of her affidavit and in the absence of any cross-examination of her. However, even if one accepted at face value the affidavits of Terrance Harvey and Julianna Harvey, that does not lead to the conclusion either that a jury might entertain a reasonable doubt about the guilt of the appellant, or that there is a significant possibility that a jury, acting reasonably, would have entertained such a doubt in the light of all of that evidence. Overall, it is my view that if produced at trial, the evidence of those witnesses would be likely to have done the appellant's case more harm than good. Portions of their evidence are plainly inconsistent with her evidence at trial, while those parts which are exculpatory tend to explain or detract from only relatively minor parts of the State case.
33 Where evidence is new but not fresh, the Court will quash a verdict of guilty only if the material either shows the appellant to be innocent or raises such a doubt about guilt in the mind of the Court that the verdict should not be allowed to stand: Mickelberg v The Queen (supra) at [413] - [414]. This evidence plainly does not have that effect.
(Page 14)
Legal relevance of refusal of defence counsel to follow instructions
34 The relevance of counsel's conduct, including any alleged failure to follow instructions, was recently considered by this Court. In Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416, at [407] - [413], Roberts-Smith JA summarised the relevant principles as follows:
"407 As Gleeson CJ pointed out in R v Birks(1990) 19 NSWLR 677 at 684, although persons convicted of a crime sometimes seek to have their conviction set aside on the ground that trial counsel acted incompetently, or contrary to instructions, it is well settled that neither of those circumstances will, of itself, attract appellate intervention (see also McHugh J in D'Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755 at [196]).
408 Whilst there is a power, and in appropriate cases a duty, to quash a conviction in such cases, appellate intervention is a matter about which the courts are extremely cautious.
409 Gleeson CJ summarised the relevant principles at 685:
'1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2. 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.
3. 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.'
- 410 The width of the scope of counsel's authority was pointed out by the Chief Justice in Birks at 684, where his Honour quoted the following passage from 'Halsbury's Laws of England', 4th ed, vol 3(1), par 518 at 420:
'… a barrister is ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted. Unless and until his instructions are withdrawn, counsel has, with regard to all matters that properly relate to the conduct of the case, unlimited authority to do whatever he considers best for the interests of his client. This authority extends to all matters relating to the action, including the calling and cross-examination of witnesses, challenging a juror, deciding what points to take, choosing which of two inconsistent defences to put forward, and even to agreeing to a compromise of the action, or to a verdict, order or judgment.'
411 The first difficulty confronting an appellant claiming there was a miscarriage of justice due to the incompetence or conduct of his trial counsel is that the adversarial system is based upon the general assumption that parties are bound by the conduct of their legal representative (Ali v The Queen (2005) 79 ALJR 662 per Gleeson CJ at [7]; TKWJ v The Queen (2002) 212 CLR 124 at [8]). Such conduct can usually only be evaluated fairly in the light of a knowledge of what it is in counsel's brief, which ordinarily will be unavailable to an appellate court (Ali (supra) at [7]). That is the situation here.
412 It is not enough for an appellant to show that counsel failed to follow instructions or was incompetent or in error in some way: an appellant must demonstrate that the alleged deficiency or conduct caused the trial to miscarry. Hayne J (with whom McHugh J agreed) explained it this way in Ali, at [18]:
- 'As McHugh J pointed out in TKWJ v The Queen (2002) 212 CLR 124 at 149 [79], "[t]he critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred". The conduct of counsel remains relevant as an intermediate or subsidiary issue because the issue of miscarriage of justice in a case such as the present requires consideration of the two questions which McHugh J identified in TKWJ. Did counsel's conduct result in a material irregularity in the trial? Is there a significant possibility that the irregularity affected the outcome? But the ultimate question is whether there has been a miscarriage of justice.'
- 413 In a similar vein, Callinan and Heydon JJ said at [99]:
'The evaluation that has to be made is whether the conduct in question produced a miscarriage of justice, that is, whether it deprived the accused of a chance of acquittal that was fairly open. As Gaudron J in TKWJ v The Queen (2002) 212 CLR 124 at [26], [27] said:
"[W]hether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test".'"
(Page 17)
35 It appears to me, with respect, that that summary is adequate for present purposes. The ultimate question is whether there has been a miscarriage of justice. It may be that, in exceptional circumstances, a failure to follow instructions could give rise to a miscarriage of justice, or that, in some cases, a failure to follow instructions may be a relevant part of a complex set of events which together give rise to as miscarriage of justice. However, in the present case, even if it be assumed that the appellant's counsel failed to follow her instructions to call Terrance Harvey or Julianna Harvey, I do not see how it can be said that that failure was such as to give rise to a miscarriage of justice for the reasons already discussed.
36 However, for reasons which I briefly explore below, I do not accept that defence counsel in this case did fail to follow instructions.
Did defence counsel refuse to follow instructions?
37 Both the appellant and her counsel at trial were called to give evidence in this appeal. The evidence of Mr Hawkins, the trial counsel, was credible. The appellant's evidence was not. My reasons for that conclusion are briefly as follows.
38 Mr Hawkins has Bachelor of Law degrees from the University of Wales and Murdoch University. Since 2000, he has practised principally in the area of criminal law. He denies having received any instructions from the appellant to call the appellant's son, Terrance Harvey, or her daughter, Julianna Harvey. So far as Terrance Harvey was concerned, it was his evidence that he advised the appellant concerning the difficulties that might arise for her if she instructed him to call her son. He said that the appellant had advised him that the needle and scales found in the car were not hers, but were her son's. He said that he asked the appellant to get Terrance Harvey to contact him, but that this did not occur. His concern was about what cross-examination of the appellant's son might have revealed. He advised the appellant that he had decided not to call Terrance Harvey as a witness. If he had received an instruction to call Terrance Harvey, contrary to his advice, his practice was such that he would have asked the appellant to sign a written instruction to do so. No such document was signed.
39 So far as Julianna Harvey was concerned, he said that he did discuss with the appellant the "pros and cons" of calling her as a witness. He decided not to call her, since it appeared to him that she could only give evidence as to limited matters, and that the effect of that evidence might be to highlight the other transactions which remained unaccounted for.
(Page 18)
- Mr Hawkins did not give evidence about, and was not cross-examined about, the failure to either require the State to call Robert Lunam or to attempt to call him on behalf of the appellant.
40 Mr Hawkins' reasons for not calling each of Terrance Harvey and Julianna Harvey appear to be credible and sensible ones. The practice of obtaining documentary instructions, where those instructions are contrary to his advice, reflects a sensible practice which is not unusual amongst practitioners in the area, and his evidence that he had such a practice is inherently therefore credible. The absence of such a document suggests that the appellant accepted his advice.
41 So far as the appellant was concerned, although she in evidence-in-chief denied that there was any explanation by Mr Hawkins of the "pros and cons" of each of her son and daughter giving evidence, in cross-examination it was put to her that, at her meetings with Mr Hawkins, " ... the pros and cons, if I can put it that way, of calling both your son and your daughter were discussed with Mr Hawkins, weren't they?" and her response was, "That's correct, they were discussed." Later in her evidence, in response to a question from me, she, however, again denied that there was a "pros and cons" meeting, and denied that she had agreed with the proposition that there was. That inconsistency raises questions about her credibility.
42 The appellant denied that she had had any discussion whatever with Mr Hawkins about possible disadvantages of calling her son, and denied that Mr Hawkins had pointed out to her that there might be issues which the State might raise in cross-examination of her son which could be problematic for the defence. It is, on the face of it, difficult to accept that counsel with any experience in criminal law would not anticipate certain difficulties potentially arising from the cross-examination of Terrance Harvey, and it is, on the face of it, difficult to accept that those potential problems would not be mentioned, even in passing, in discussing with the appellant the possible course of the trial. The appellant's evidence in that respect is inherently lacking in credibility.
43 So far as Julianna Harvey is concerned, in cross-examination the appellant agreed that Julianna Harvey had had a mental illness for some years and that that mental illness had led to attempts at self-harm on a number of occasions, and was such that she required guidance and assistance to help her cope with her general day-to-day needs and to keep her safe. That mental illness would, one would think, be a further reason for caution about calling Julianna Harvey as a witness. The extent of the
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- illness as revealed in cross-examination before us is such that it reinforces the inherent unlikelihood of the appellant having given Julianna Harvey access to the appellant's own bank accounts.
44 Importantly, there was put to the appellant during the course of her cross-examination a portion of the transcript of the trial occurring on the first day at about the luncheon adjournment. In the presence of the appellant, Mr Hawkins advised the trial Judge that Julianna Harvey was attending Princess Margaret Hospital in Perth, attending to the appellant's granddaughter, who was ill. The point of the discussion was that Julianna Harvey was one of the appellant's sureties, and that it would therefore cause difficulties if the appellant's bail was varied during the course of the trial in a way which would require her sureties to re-sign. Although the appellant said that Julianna would have returned to Kalgoorlie to give evidence, the fact that Julianna Harvey was known at that time to be in Perth, and the absence from the transcript of any suggestion that she would be available at any time during the course of the trial, tends to support the evidence of Mr Hawkins.
45 Finally, there might be seen to be a certain tension between the appellant's insistence in the course of her cross-examination that she had daily asked Mr Hawkins when he was going to call her son and her daughter and that he consistently replied, "We'll see", and her evidence-in-chief which was firmly to the effect that she had positively instructed him to call those witnesses. The tension arises from the absence of any suggestion on her part that after she received the response, "We'll see", she reminded Mr Hawkins that she had instructed him, or that he had agreed, to call those witnesses. I would not place great weight upon this factor, since one can readily understand an accused in a criminal trial, not entirely understanding the process, and perhaps not being more assertive in insisting upon instructions being followed.
46 For the reasons outlined above, I accept Mr Hawkins' evidence that the question of whether to call either the appellant's son or daughter was one which the appellant left to him.
Conclusion
47 I am not persuaded that defence counsel refused or failed to follow the appellant's instructions to call any witnesses. In any event, the relevant question is not whether counsel failed to follow instructions, but whether the failure to call the witnesses gave rise to a miscarriage of justice. It does not appear to me that the failure to call any of the
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- witnesses identified did give rise to a miscarriage of justice. I would therefore dismiss the appeal.
48 EM HEENAN AJA: The sole ground of appeal is whether there was a miscarriage of justice caused by the alleged failure of the appellant's counsel at her trial to call, as witnesses in her defence, her son and daughter.
49 Mrs Lunam was tried before a Judge and jury in the District Court of Western Australia sitting in Kalgoorlie in August 2005 on an indictment alleging three counts of offences under the Misuse of Drugs Act, in December 2003 and January 2004, namely:
• manufacturing amphetamines;
• possessing amphetamine with intent to sell or supply;
• being involved in the manufacture of amphetamines.
50 The case against her was that, in combination with a man named David Smith, on two occasions she had assisted in the set-up, manufacture, possession and distribution of methylamphetamine at a mining tenement which she owned jointly with her husband north-east of Coolgardie. She and her husband lived in Coolgardie where they managed the local caravan park. They also had another mining tenement at the nearby settlement of Bullabulling. The prosecution case was that, acting on a tip-off, police arrived at the first mining tenement, at Kunanalling, to find Smith and another man in the process of using a generator, a microwave and other apparatus installed on the back of the appellant's utility to "cook" amphetamine tablets by reduction from pseudoephedrine. They were arrested and the area, and the vehicle, were searched.
51 Other police attended at the appellant's home and searched it, the nearby area and the appellant's car. In the boot of the car, the police found a set of scales with traces of amphetamine; in the interior of the car, inside a small bag, they found a syringe containing traces of amphetamine, and various receipts from stores showing items purchased which the prosecution said were connected to the manufacture of methylamphetamine and were purchased by the appellant for Smith. Among those receipts was a record of a $600 cash withdrawal from the appellant's bank account.
52 During the search at the appellant's home at the caravan park at Coolgardie the police also found a quantity of amphetamine hidden in a
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- water bottle under the house. A further search found a second bottle, again containing amphetamine, hidden elsewhere in the grounds.
53 A search of the second mining tenement at Bullabulling also discovered apparatus used for the manufacture of amphetamine and with traces of amphetamine.
54 Further investigations revealed that the man David Smith had visited the appellant at Coolgardie in early December 2003, somewhat unexpectedly, had borrowed a motor vehicle and had been given a quantity of equipment and some money by the appellant. She had, at times, taken him to the camp site at the Kunanalling mining lease so that he could "camp out and see the country". She had met him earlier at his home in Toodyay and had bought a pan fryer or "wok" which she had given to him "as a present for his wife because they were having trouble and he could earn some Brownie points".
55 Smith was charged with similar offences and pleaded guilty. He obtained a reduction in his sentence because of his co-operation with the police and his promise to give evidence against Mrs Lunam. At her trial he did give evidence and said that she had assisted him in setting up the amphetamine manufacturing process, had bought glassware, arranged to supply him with chemicals, including hydrochloric acid, had brought him supplies of other ingredients, including ephedrine, from Toodyay. There was much direct evidence to establish that an amphetamine manufacturing operation of some scale had been conducted by Smith, that the processed amphetamines were hidden near the appellant's house and that she had given him money and other supplies. There was evidence of an argument between Mrs Lunam, her husband and Smith over her husband's protests about what they were doing in preparing drugs. She denied this and attributed the cause of the argument to an allegation by her husband that she was having an affair with Smith. Smith had previous convictions for drug offences and Mrs Lunam admitted that she had used amphetamines intravenously some years before.
56 The appellant's defence at her trial was that she was a naive and unsuspecting associate of Smith, who was down on his luck and needed some support and assistance. She claims that he told her, and that she believed, that he was manufacturing illicit alcohol or "moonshine" and that this was the reason why he was acting furtively and processing materials and ingredients at the mine site at Kunanalling. She said that her son was a drug addict and had convictions for drug offences and that the scales found in the back of her motor vehicle and a syringe found in
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- the bag in the interior of the car had nothing to do with her and were probably left there by her son.
57 In relation to evidence for the prosecution that she had been making a series of withdrawals from financial accounts which the State alleged corresponded approximately (but not precisely) in time and amount with payments Smith said he had received from her, Mrs Lunam said that her daughter had authority to operate her bank account and that one of the payments, the $600 in December 2003, had been withdrawn from her account by her daughter for the daughter's purposes with her mother's authority. Such a withdrawal of $600, if it had been made by the daughter, was only part of the withdrawals totalling $1430 which were proved to have been made from the mother's account during the material period.
58 Mrs Lunam gave evidence at her trial and denied that she was knowingly involved in any drug production, possession or dealing offences, said that she had wanted to trust and help Smith and for that reason was assisting him, believing that he was illicitly producing "moonshine" and only "moonshine".
59 No other evidence was called on Mrs Lunam's behalf. The jury returned verdicts of guilty on all three counts and she was sentenced to a period of imprisonment of 5½ years and made eligible for parole.
60 Her sole ground of appeal is that she was deprived of a fair trial, and hence suffered a miscarriage of justice, because the counsel whom she had engaged (via Legal Aid) did not follow her express instructions to call her son and her daughter to give evidence at the trial to "corroborate" her own statements. The evidence which she says her son would have given (set out in an affidavit filed for use in the appeal) was to the effect that he was a drug addict, it was he who had left the scales and the syringe in his mother's car and that she had not known of them, and that a meeting which she had with Smith in Toodyay occurred in the open street and was an innocent one, rather than an occasion when she took delivery of the ingredients and equipment to take from Toodyay to Coolgardie at Smith's request.
61 A similar affidavit filed for use on the appeal, from the appellant's daughter, is to the effect that the daughter had, with her mother's authority, withdrawn the $600 from the mother's bank account in December 2003 and that this was the transaction which was the subject of
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- the receipt found in her mother's car at the time the police swooped on the illegal operation at Kunanalling.
62 Mrs Lunam also maintained that she had given instructions for her counsel to call her husband as a witness at her trial, but that her counsel had failed to take steps to secure the husband's presence or to seek an adjournment of the trial when it was apparent that the husband was out of the country. According to Mrs Lunam, in a statement made by her husband to the police, there was a passage dealing with the episode of the argument between herself, Smith and her husband, which Smith had said was about her using their joint property for drug operations, and that her husband's evidence was that the argument was not about this at all but was over her association with Smith. The statement from her husband to the police was available to this Court, although not put in evidence at the trial. Her husband's statement dealt with many other issues which were very incriminating of Mrs Lunam in relation to her dealings with Smith, her supply of chemicals and other equipment to him and associated matters.
63 Mrs Lunam gave evidence in this Court that in the three pre-trial consultations which she had had with her counsel, she had discussed with him her wish to have her husband, her son and daughter called as witnesses at her trial and had asked and directed him to make all necessary arrangements. She also said that during the course of the trial, during afternoon and overnight adjournments, she held conferences with her counsel and, again, kept asking whether steps were being taken to call her son and her daughter and that all that the counsel would say was that "we'll see how things develop and I'll then make a decision".
64 The counsel who acted for Mrs Lunam at her trial made an affidavit which was put in evidence by the State detailing his discussions with, and the instructions which he received from, Mrs Lunam leading up to and during the course of her trial. This was accepted in evidence in this Court on the express assurance by counsel for the appellant that no claim for privilege was made or maintained in respect of any part of the contents of this affidavit. In this affidavit her former counsel confirmed that he had met with Mrs Lunam in three conferences before the trial, that she had raised with him the question of calling her husband, her son and daughter, but that he had pointed out to her that there was much prejudicial evidence in the balance of the husband's statement which could be exploited against her if he were to be called and cross-examined and that he advised against calling the husband. According to him, Mrs Lunam accepted that advice. In relation to the son and the daughter, her former counsel said that he had discussed with Mrs Lunam the disadvantages of calling her son as a
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- witness because, doing so would reveal that he was a drug taker with convictions which, in the circumstances, would probably be prejudicial to her. He said he had explained to her that calling her son would give an opportunity to the prosecution to exploit other potential anomalies in the evidence given by the appellant. Counsel said that he made a forensic decision not to call her son. This counsel also said that the position was similar in relation to Mrs Lunam's daughter. Sadly, the daughter was not entirely reliable because she had a chronic mental illness. But, more to the point, the withdrawal of $600 by the daughter and the use of that money for her own purposes only highlighted the fact that there was another $830 or so in withdrawals made by Mrs Lunam during the period for which no clearly legitimate explanation could be offered. For this reason, counsel said he had advised against calling the daughter and made a forensic decision not to do so. He says that Mrs Lunam accepted his advice in relation to all those matters and that the trial was conducted accordingly with no protest being made by Mrs Lunam as it progressed.
65 Mrs Lunam also gave evidence during this appeal about the dealings which she had with her former counsel who had appeared at the trial. She swore that she had always made it known to him that she wished to have her husband, son and daughter give evidence in order to corroborate her own story but that, after explanations from her counsel, she accepted his decision not to call her husband because of his absence overseas. However, she says that she maintained that she always wanted her counsel to call her son and daughter, but that he had temporised saying, repeatedly, "we'll see how it develops and I'll make a decision then". Initially Mrs Lunam said, in her evidence-in-chief, that at her second consultation with her counsel they had discussed the pros and cons of her daughter and her son giving evidence, but that in the end she had decided that she wanted them to be called as witnesses. Later, in cross-examination, she denied that she ever discussed the pros and cons of having these witnesses called.
66 On these issues, I accept the evidence of Mrs Lunam's former counsel given in this Court that he did explain to Mrs Lunam the disadvantages of calling any or all of her husband, her son or daughter as witnesses at her trial and that these were very real potential areas of prejudice. Her former counsel said that it was he who made the forensic decision not to call any of the witnesses. I can only agree that there were good forensic reasons for such a decision. Counsel was not equivocal or hesitant in any of his testimony and, on the issue of credit, I have no hesitation in accepting his version of what occurred. Mrs Lunam's account was neither consistent nor persuasive.
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67 The argument for the appellant is that this was a case where, in practical terms, the prosecution depended upon the evidence of Smith being accepted and the evidence of Mrs Lunam being rejected so that it was, in effect, a case of "oath against oath". Consequently, so the submission ran, if there had been other evidence available to shake the credit of Smith or to introduce additional doubts about his reliability, the jury would not have been able to reach a conclusion that the case against the appellant was proved beyond reasonable doubt so that an acquittal would necessarily have resulted. Again, I do not accept this submission. There was more than sufficient evidence from Smith and corroborating the evidence of Smith, that there was an unusual association between Mrs Lunam and Smith, and that the latter was carrying out some suspicious conduct in the remote area of the Kunanalling mine site occurring there because of a desire for secrecy.
68 There was also evidence of the appellant providing money and other assistance to Smith and lending him a motor vehicle in a manner which could only be incongruous in the event of any innocent association. It was clear beyond any doubt that an amphetamine operation had been conducted by Smith, that portions of the treated amphetamine were hidden close by the appellant's home at Coolgardie and that there were other trappings of amphetamine production at the Bullabulling lease. Mrs Lunam's case depended, therefore, on her explanation that she believed that Smith was producing illicit alcohol and "moonshine" and was not engaged in any more sinister activity.
69 On this crucial issue the evidence against Mrs Lunam was very strong and there is no reason to believe that any miscarriage of justice has occurred or that the result would have been any different had the evidence of her daughter or her son been called at the trial. In fact the assertion that the scales and the syringe found in the car belonged to her son and that he was a drug user was given by Mrs Lunam at her trial and was not challenged by the prosecution. Similarly, her statement that the $600 withdrawal from the account was made by her daughter was given by her in evidence. The real issue at trial was whether or not the jury was satisfied beyond reasonable doubt that Mrs Lunam knowingly assisted Smith in the methylamphetamine production, rather than being innocently beguiled and misled by thinking that it was just an illicit "moonshine" operation. On that issue the evidence of the son and the daughter is, in my view, at most, peripheral and quite inconclusive.
70 The principles applicable in an appeal against conviction where the ground of appeal alleges a miscarriage of justice because counsel for the
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- appellant at trial refused or neglected to follow instructions or was incompetent, have recently been comprehensively considered in Nudd v The Queen [2006] HCA 9. In that case, at [9], Gleeson CJ observed:
"Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v The Queen (2002) 212 CLR 124, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision ((2002) 214 at 130 - 131 [16] per Gleeson CJ, 133 [26] - [27] per Gaudron J, 155 [95] per McHugh J, 158 [107] per Hayne J). That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct."
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- verdict or produced any reasonable probability that that might have occurred.
72 However, I prefer to rest my conclusion in favour of dismissing this appeal on the basis that Mrs Lunam's former counsel exercised his forensic judgment in the conduct of the trial in consultation with the appellant and that it was within his province to decide which witnesses to call and to call or not. In this case, I am satisfied that counsel discussed these issues fully with Mrs Lunam beforehand and, for cogent reasons, decided against calling her son or daughter, explained his reasons for this to Mrs Lunam who accepted his decision, at least until the end of the trial. In such circumstances a party is bound by her conduct of the trial: see Nudd (supra). No reason has been shown to suggest that there has been a miscarriage of justice.
73 The appeal should be dismissed.
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