Price v Police - [2008] SASC 208

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PRICE v POLICE
[2008] SASC 208
Judgment of The Honourable Justice Vanstone
30 July 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE
Application for extension of time in which to appeal against conviction - appellant convicted in Magistrates Court for threatening to cause harm and disorderly behaviour - appellant complaining of his counsel's conduct in presenting his defence - complaint also of prosecution's failure to disclose evidence. Held: allegations against former counsel and prosecution not made out - application for extension of time refused.
Listening and Surveillance Devices Act 1972 s4, s7, referred to.

PRICE v POLICE
[2008] SASC 208
Magistrates Appeal
Criminal

VANSTONE J: Wayne Robert Price was tried in the Magistrates Court upon an information charging him with assault, threatening to cause harm, disorderly behaviour and indecent behaviour. He was convicted only for threatening harm and disorderly behaviour. Some two months after the Magistrate’s decision was delivered he filed a notice of appeal against conviction, citing several grounds. He seeks an extension of time within which to appeal, which is opposed.
Grounds of appeal
Although the appellant was represented in the Magistrates Court, he filed his notice of appeal without legal advice and he represented himself in this court.
The grounds as filed were somewhat amorphous and the appellant’s argument went beyond their terms. I did not insist on the appellant confining his submissions to the grounds as filed. For various reasons, the hearing of the appeal necessitated four hearing dates spanning three months.
The first two grounds contained claims that relevant evidence was wrongfully withheld from the court, first by the police prosecutor and second by arrangement between the police prosecutor and defence counsel. During submissions these grounds were effectively expanded to take in more general allegations against the appellant’s former counsel, who ultimately gave evidence in the matter.
In support of these grounds the appellant suggested that the complainant – who was his neighbour and with whom he had a history of disputation – kept a closed circuit television camera trained on his house and the roadway in front of it. He suggested that film, which he believed would have been taken on the days upon which the offences were said to have occurred, should have been presented to the court by the prosecution. He argued that there was an obligation upon the prosecution to present all relevant evidence and that this was plainly relevant because it had the capacity to refute the allegations. He further suggested that because of an agreement struck between the prosecuting counsel and his own counsel, to which he was not privy, the material was not tendered.
Originally, the assertions made by Mr Price were not underpinned by any evidence on oath. He frankly acknowledged that the only videotape seen by him and said to have emanated from the complainant’s camera, had contained no relevant material. There were another seven or eight tapes which he claimed he had been told existed, but he had never seen them and had no way of knowing what they contained. Furthermore he said that at one stage he was led to believe, during a directions hearing, that the tapes had been destroyed, presumably by the complainant (perhaps by re-use of the tapes) or alternatively, by police. As to the allegation that his lawyer was complicit in an agreement that the tapes would not be presented to the court, this was an inference drawn by him, based on the facts available to him, rather than on any admission to him by anyone. Moreover, he placed no material from his counsel before me.
I received an affidavit from the police prosecutor who appeared in the Magistrates Court. He agreed that the complainant had supplied some videotapes to him on the day preceding the trial, which he watched. He said that at various times each of the appellant and complainant appeared in the footage, although not together. There was extensive film of the appellant walking up and down in the roadway outside their respective houses. The prosecutor told the appellant’s counsel of the tapes and generally what they contained on the day of trial. They were not tendered in evidence as they were not seen to contain relevant material.
The prosecutor deposed that, after the trial, the tapes were disposed of, in the usual way, via the Police Property Section.
The appellant further alleged that his counsel had failed to follow instructions. He told me that in his possession were three small cassette tapes and one videocassette tape containing noises of “burn outs” performed in his street and outside his house by the complainant and a male friend of hers, as well as the noises associated with verbal attacks upon him by the complainant and her associates. The appellant claimed that he had instructed his counsel to tender this material before the magistrate, but that was not done.
The third ground asserts, in essence, that the witnesses for the prosecution lied. In support of this ground it was put that some evidence was inconsistent with the statements which those witnesses had provided. I take the argument to be that because of such inconsistencies as there were, the magistrate should have rejected the evidence of those witnesses.
The statements in question were not tendered in evidence at trial, but during the hearing of this matter both the appellant and counsel for the respondent agreed that I should be provided with these statements. Except in two respects, relating to two witnesses, there was at trial no cross-examination of the witnesses on the suggested inconsistencies.
The final ground asserts that the main witness for the prosecution, the complainant, had been in a mental hospital. As framed, the ground is incompetent. However, I ascertained by questioning the appellant that his complaint was really one against his counsel for failing to take steps to subpoena medical material relating to the complainant and further, for failing to adequately and thoroughly cross-examine her about her mental condition.
Upon questioning the appellant, it emerged that his grounds for believing that the complainant had some sort of mental condition were that, according to him, on one occasion she smashed a number of windows in her house and was removed from the house by ambulance. According to the appellant she later told him that she had been taken to “the nut house” and kept there for a week.
Evidence of appellant’s former counsel
In view of the quite serious and wide-ranging allegations about defence counsel’s conduct of the appellant’s trial, I asked my associate to issue an invitation to him on behalf of the court to give evidence and to submit himself to Mr Price’s cross-examination. He co-operated fully in that process.
Under questioning by me, defence counsel said that he has been a barrister and solicitor for almost 20 years. He is now a sole practitioner. He practises solely in the area of criminal law. Most of his practice is in the Magistrates Court. When he was first retained by Mr Price, it was to represent him, not only for the charges now subject to appeal, but also in relation to some separately charged offences. He said he took instructions about the matters now under consideration from time to time, both on occasions when the matters were mentioned, at the Magistrates Court and also, at least once, at Mr Price’s home. He received instructions both in the form of letters which the appellant wrote to him and orally. He had returned all the papers in relation to these matters to the appellant at the time when his retainer was terminated, being in January 2008.
Defence counsel said that he believed he had a good rapport with Mr Price. He said that he made a point of establishing good relationships with his clients. He said that the appellant’s positive attitude to him only changed after he was convicted of two of the four charges for which he was tried. Later, he provided the appellant with a form upon which he could appeal and, as I said, returned the papers that he had.
I directed defence counsel’s attention to the several topics about which Mr Price had made particular complaint. Defence counsel said that the appellant gave him a videocassette recording which had been made by the appellant himself and appeared to show a number of separate incidents occurring in the appellant’s street. He said it did not contain any part of any of the incidents on which the charges were based. He could not recall Mr Price providing any other recorded materials. He discussed that recording with Mr Price, advising him that it was necessary to confine the case to the facts alleged and to “stay relevant”. He said the appellant appeared to accept his advice that it was better not to try to use the videocassette in evidence at the trial.
Defence counsel said he recalled being given a tape by the police prosecutor. That might have occurred about six months prior to the hearing. He was told that it had been generated by the complainant. He looked at it and saw that it contained extended footage of the appellant walking up and down a road. It also showed the appellant’s arrest by police. Defence counsel said he considered it contained no material helpful to the appellant and was, in any event, inadmissible. He said to his client that if the police attempted to use it he would challenge its admissibility. In the event, the prosecutor did not tender it.
Defence counsel said that the appellant told him that there were a number of other witnesses who could attest to separate incidents demonstrating poor behaviour towards him by the complainant and others. He recalled that several names of such witnesses were mentioned to him. One name was Nick Jaric. He accepted that the appellant might have asked him to contact them. Again, he discussed the evidence that such persons might give with Mr Price and advised him that in defending the charges they should confine themselves to the relevant events. He questioned whether the evidence of these witnesses would be admissible. He said that the appellant was ultimately content to use those witnesses in defence of the separate charges.
He was also told by the appellant that the complainant had some sort of history of mental instability. The appellant wished that to be raised at his trial. Defence counsel said he advised the appellant that matter should not be raised. He explained that making allegations against the complainant could risk allowing the prosecution to introduce into evidence the appellant’s record of previous convictions, which would not be favourable to him. He said the appellant appeared to understand what was at stake and seemed to accept his advice. In any event, defence counsel acceded to the appellant’s suggestion that the complainant’s presentation in the witness box was animated; that she became angry and agitated during her evidence; that she called defence counsel “a liar”; that she claimed that the stress of being cross-examined was causing her to “puff up like a balloon”. Such a presentation would likely have suggested instability to the magistrate.
Defence counsel was asked about cross-examination of the prosecution witnesses upon their written statements, the subject of ground 3. He said that he had at least two statements prior to the trial; that he had read them and absorbed them. He said he was alive to the possibility of cross-examining where witnesses departed from their statements. In fact, on two occasions at least, he did so. He said that whether or not counsel cross-examined on contradictions or variations was a matter of judgement for counsel and he was unaware of having overlooked any significant departure from the proof of any witness.
In any event, he expressed the view that the cross-examination of the complainant had gone quite well.
Defence counsel said that he had tried to do a good job for his client and was unaware of any shortcoming. He considered that the appellant had no complaint with his representation until he learned of the result of the hearing.
In cross-examination by the appellant, defence counsel conceded that the appellant could have given him more than one recording of incidents in the street. He acknowledged that the appellant’s original position might have been that he wished to have these tapes used at his trials. He also conceded that there could have been other tapes which were mentioned to him on the day of the hearing by the police prosecutor. He said that he would have communicated what had been said between them to the appellant. He had no recollection of suggesting that any “deal” had been done between himself and the prosecutor as to the use of such tapes; that is, that they would not be used. However, bearing in mind that he considered that the original tape provided by the police did not advantage his client, he could have said something along those lines to the appellant.
As part of his attack on defence counsel’s credibility, the appellant suggested to him that he had told the appellant that a deal had been struck between himself and the police prosecutor that no tapes would be used. Defence counsel did not clearly acknowledge making such a statement and the appellant then sought to tender a tape of the alleged conversation. Since there was no facility in the courtroom to play the tape, nor any transcript of it, and because defence counsel did not specifically deny such a conversation, the matter was left for later consideration.
Ruling on admissibility
In the course of submissions the appellant again sought to tender the tape. At that time it became clear that the occasion on which the tape was made was not the hearing date, but rather on 17 January 2008 when defence counsel returned materials to the appellant. It also became apparent that the tape of the conversation between himself and defence counsel had been made by the appellant surreptitiously. In my view such conduct would arguably be a breach of s 4 Listening and Surveillance Devices Act 1972. I do not consider that the conduct would fall within the exemption to s 4 provided by s 7(1) of the Act. If the making of that recording was an offence under that Act, then it seems to me that I have discretion as to exclusion of that evidence. I consider that it is appropriate to exclude the evidence.
In this case it is not a critical matter in any event. That is because, for a start, the tape was made on an occasion well after the hearing and therefore only of marginal relevance to the events of the day of the trial. Also, as I mentioned, defence counsel did not totally discount that he might have used the word “deal” when relating to the appellant the outcome of his conversation with the prosecutor. I would see nothing untoward about the use of that word, bearing in mind his evidence that he was happy that the police would not try to use in evidence the tape showing Mr Price’s arrest.
Evidence of appellant
The appellant gave evidence in support of the various propositions put to defence counsel. There is no need to set out those assertions again. He was cross-examined by counsel for the respondent. The appellant’s position is that he made it plain to defence counsel that he did not accept the advice about presentation of the defence case. He said that he insisted that his tapes should be tendered and his witnesses found and called and the complainant cross-examined as to her mental condition.
Matters of credibility
In my opinion defence counsel was in all respects a reliable witness. I accept his evidence. There was nothing about the way it was given or its content which raised any question in my mind as to its accuracy. That is not to say that defence counsel claimed a perfect recollection of all conversations with the appellant. On the contrary, he did not, but he made appropriate concessions when cross-examined. Moreover, there is some material before me which supports his evidence that the conversations about the inadvisability of introducing extraneous allegations took place. For instance, the appellant acknowledged that there had been a conversation about the risk said to be involved in cross-examining the complainant about her mental state: that it could allow introduction of his previous convictions. Then, when the appellant was cross-examined by the police prosecutor at his trial, the following passage of evidence took place:
Q.You are the innocent party, according to you.
A.I was the innocent party. They attacked me in groups and I can prove it. I’ve got witnesses.
Q.Where are your witnesses. Are they here today.
A.No, they are for other cases. My solicitor knows who these witnesses are.
I agree with the submission of the respondent’s counsel that this interchange tends to demonstrate that a forensic decision had been made, both by the appellant and by his counsel, that the witnesses he had were relevant, not to the charges under consideration, but to other charges. I note also that in an earlier submission to me, the appellant related that his lawyer had told him that because these witnesses had not seen the actual incidents they should not be called.
As will be apparent from the above, I did not accept the appellant’s evidence as to the instructions said to have been given to defence counsel. I do not find that he was deliberately untruthful in his evidence. Rather, I think that his preoccupation with these matters over a long period has led him to lose any objectivity and to reconstruct in his own mind the way the events occurred.
I would add that the appellant’s position on the way he instructed his counsel to run his case is inherently improbable. If he had, against counsel’s advice, insisted that a particular course should be followed and had counsel insisted that he would not obey such instructions, then it is likely that counsel would have withdrawn or the appellant would have terminated his retainer. Alternatively, defence counsel would simply have taken the course dictated by the appellant and attempted to have the tapes and evidence of witnesses admitted. Since many of these conversations must have taken place in advance of the hearing, it is likely that a state of impasse would have been reached before the date fixed for the trial. I cannot think that the matter could have proceeded as it did if the appellant and his counsel were at loggerheads.
Grounds 1 and 2 – conduct of defence counsel and prosecution
I return to the grounds of appeal. I deal first with the matter of the duties of a prosecutor. It cannot be said, even as a general rule, that there is any obligation on the prosecution to tender all material in its possession at the request of the defence. The obligation to which the appellant must have been adverting in the first ground of appeal is one of disclosure. The prosecutor’s affidavit was not challenged. On the material before me there is no reason to believe that such obligations as the police had in that regard were not met. Indeed, one tape emanating from the complainant’s closed circuit camera was passed to the appellant by police, but had captured no useful material. The other tapes were disclosed to the appellant’s counsel who, according to the police prosecutor’s affidavit, accepted that they added nothing.

As to the suggestion that cassette and videocassette recordings of events on days other than the dates of the charges should have been tendered, in my view, except in quite unusual circumstances, these would not be admissible. At the very least, a proper foundation would have to be laid. The plain fact is that, speaking hypothetically, even if the complainant and her associates engaged in provocative, and perhaps unlawful, conduct towards the appellant on occasions other than those charged, such events would not necessarily throw any light upon the allegations made in the charges themselves.
Next I turn to that aspect of these grounds which raise the issue of the appellant’s representation. As I said, I accept defence counsel’s evidence about his interactions with the appellant. I have read the entire transcript of the hearing, which occupied less than one day. My own view is that defence counsel’s conduct of the case was more than competent. In my mind there is a real question as to the admissibility of any evidence that might have been given about the conduct of the complainant and others on separate occasions. Anyway, as counsel for the respondent pointed out, defence counsel was able to extract significant admissions from one of the police witnesses, Ms Rowe, about the ill feeling between the appellant and the complainant and about the “whole street” wanting, at one stage, to have the appellant removed. Ms Rowe also agreed to the suggestion that the complainant and the appellant were “at each other the whole time”. In relation to the complainant’s own presentation and the failure to cross-examine her on her psychological history, in fact she became extremely agitated and argumentative in the witness box and tended to demonstrate what might be called some instability. It is noteworthy, I think, that the magistrate did not accept the entirety of her evidence.
Ground 3 – failure to cross-examine on inconsistencies
I have already dealt with defence counsel’s evidence on this topic. In addition, I have read the statements. In my opinion, such inconsistencies as are demonstrated, are more matters of expression than anything which would raise the truthfulness or accuracy of the witnesses’s evidence. In my view it was open to defence counsel, as an exercise of judgement, not to cross-examine on such minor inconsistencies. As I mentioned, in respect of two matters, counsel put, accurately, to a witness that she had not made a particular allegation in her statement to police. Plainly, counsel was alive to the possibility of an attack on credit made on the basis of the contents of the witness statements. Nothing about the evidence of the prosecution witnesses suggests to me that they were deliberately untruthful.
In my view there is no substance in this ground.
Ground 4 – failure to cross-examine on mental condition of complainant
I have read the evidence given by the complainant. As I said earlier, at times she became quite distressed by the task of giving evidence. I am satisfied that the magistrate had ample opportunity to observe the witness. Even had it been established that she had from time to time suffered from a psychological or psychiatric problem, that of itself would be no reason for the magistrate to reject her as a witness of truth and accuracy. In circumstances where defence counsel did not raise with her any issue as to her mental health (for reasons he explained), I am not persuaded that this ground amounts to any more than an afterthought. In my view it is without substance.
Conclusion
I have treated this application for an extension of time within which to appeal as a properly instituted appeal. None of the grounds of appeal is meritorious. Indeed I do not consider that any one of them is arguable. For that reason it is not appropriate to grant permission to appeal. In those circumstances I make the following order:
1. extension of time within which to appeal refused.