R v IAS

Case [2004] SASC 240 13 August 2004

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v IAS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Anderson)
13 August 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF
DNA EVIDENCE
Appeal against conviction - appellant convicted of three counts of rape - where a breakdown in the relationship between the appellant and his counsel during the trial led to the appellant's counsel and solicitor withdrawing from the trial - where the appellant instructed new counsel and a new solicitor but terminated their instructions during the course of the trial - where the trial proceeded with the appellant unrepresented - whether the trial judge erred in allowing two sets of counsel and solicitors to withdraw from the trial - whether the trial judge erred in not adjourning the the trial so as to give the appellant a further opportunity to instruct new counsel - whether the trial miscarried by reason of the trial judge's refusal to discharge the jury after the departure of both counsel and the trial judge's direction that the appellant proceed with the trial unrepresented by counsel - discussion of the authorities relating to the circumstances in which it will be held that an accused facing serious charges who has no legal representation, or who loses his legal representation during a trial, has thereby been denied a fair trial and a miscarriage of justice has resulted - whether the trial judge erred in his direction to the jury concerning the use to be made of DNA evidence - appeal dismissed.
Criminal Law Consolidation Act 1935 ss 48, 49, 56; Criminal Law (Legal Representation) Act 2001 ss 8, 11, referred to.
Dietrich v The Queen (1992) 177 CLR 292; Craig v South Australia (1995) 184 CLR 163; R v Greer (1992) 62 A Crim R 442; R v Frawley (1993) 69 A Crim R 208; R v Small (1994) 33 NSWLR 575; R v Batiste (1994) 35 NSWLR 437; R v Osborne [2002] VSCA 156; R v Grosser [2002] SASC 193; R v Birks (1990) 19 NSWLR 677, discussed.
R v White (1995) 77 A Crim R 531; McInnis v The Queen (1979) 143 CLR 575; Wong v The Queen [2001] WASCA 32; R v O'Neill (2002) 81 SASR 359; R v K (1991) 161 LSJS 135; Grey v The Queen [2001] HCA 65; R v Smith (1998) 71 SASR 543; R v Karger (2002) 83 SASR 135, considered.

R v IAS
[2004] SASC 240
Court of Criminal Appeal: Duggan, Besanko and Anderson JJ

DUGGAN J. In my view this appeal should be dismissed. I agree with the reasons of Besanko J and the findings of fact expressed in his judgment.
BESANKO J:
Introduction
This is an appeal against conviction. The appellant was found guilty of three counts of rape (s 48 Criminal Law Consolidation Act 1935 (“CLCA”)) after a trial before a Judge and jury in the District Court of South Australia. The victim in the case of each count was C, and she was 15 years of age at the time of the offences. There were alternative charges of unlawful sexual intercourse (s 49(3) CLCA), but in view of the verdicts of guilty on the charges of rape, it was not necessary to take verdicts on the alternative charges. All three offences of rape for which the appellant was found guilty took place on 24^th July 2002.
The appellant was also charged on the same Information with the offence of rape (or in the alternative, unlawful sexual intercourse) and the offence of indecent assault (s 56 CLCA) allegedly committed on an earlier occasion, and again C was the alleged victim. The Information as laid alleged that the first offence of rape took place on 27^th June 2002 and that the offence of indecent assault took place on 24^th July 2002, but during the trial the prosecution sought and obtained leave to amend the dates for these two offences to “between 1^st June and 6^th July 2002”. The appellant was found not guilty of these charges.
In relation to the three convictions for rape, the appellant was granted leave to appeal by a single Judge of this Court. The leave to appeal was granted in relation to the following grounds of appeal:
“1.The Learned Trial Judge erred in his failure to discharge the jury in circumstances where:-
(i)There was a significant delay during the trial.
(ii) There was a misleading explanation given to the jury concerning the applicant’s representation.
(iii) The applicant was prejudiced by being forced to establish his own defence where it was recognised by the Learned Trial Judge that the appellant lacked the capacity to do so.
1AThe Learned Trial Judge erred in releasing Mr Lang, the applicant’s then counsel, and the applicant’s then solicitor, Mr Aitken, from their obligation to represent the accused through the proceedings resulting in the accused being unable to obtain a fair trial.
1BThe Learned Trial Judge erred in releasing Mr Barnett of counsel and Mr Longson as instructing solicitor, in the event that they were counsel and solicitor respectively in the matter, from their obligations to represent the accused through the proceedings, resulting in the accused being unable to obtain a fair trial.
2.The Learned Trial Judge fell into error by not allowing the applicant more opportunity to instruct new counsel in the matter.
3.1The Learned Trial Judge erred in his direction to the jury concerning the use to be made of the DNA evidence and in particular erred when he stated that although the ratio of the DNA evidence suggested a number of people would have been a match for the DNA profile only a small portion would have access to the complainant. The Learned Trial Judge failed to point out that the complainant’s brother, who also slept in the same bed, because of his close genetic relationship with the applicant would also be a likely match to the DNA portion analysed.
3.2The Learned Trial Judge erred in not rendering appropriate assistance to the applicant particularly where issues of DNA evidence arose. In particular, the Learned Trial Judge erred in not providing advice on the use of other expert evidence to counter that of prosecutions DNA expert.”
At the hearing of the appeal before this Court, the appellant was given leave to add a further ground of appeal.   It is in the following terms:
“4.The trial miscarried by reason of:
(a)     The Trial Judge’s refusal to discharge the jury after the departure of Mr Lang, counsel,
(b)     the Trial Judge insisting that the appellant continue a part-heard trial,
(c)     the Trial Judge refusing to discharge the jury after the departure of Mr Barnett, counsel, and
(d)     the Trial Judge directed that the appellant should proceed with the trial unrepresented by counsel.”
In essence, there are two issues on the appeal. The first issue is raised by grounds 1, 1A, 1B, 2 and 4 and relates to the appellant’s legal representation at the trial. In broad terms, the appellant submits that part way through the trial he was left without legal representation and the Judge should have declared a mistrial and discharged the jury, or in the alternative, he should have granted an adjournment so that the appellant could secure the services of a solicitor and counsel. It was submitted that the Judge’s error meant that the appellant had not received a fair trial, and there had been a miscarriage of justice. The convictions should be set aside. Under the umbrella of this submission, the appellant submitted that the Judge erred in releasing the various legal practitioners who represented him from time to time. The second issue is raised by ground 3 and relates to the DNA evidence called at the trial by the prosecution and the Judge’s directions to the jury in relation to that evidence. The complaint in ground 3.2 was abandoned on the hearing of the appeal, and the thrust of the appellant’s complaint in relation to the DNA evidence is that the Judge erred in his directions to the jury in the manner outlined in ground 3.1.
Before considering the grounds of appeal, it is convenient to briefly summarise the case for the prosecution at the trial.
The Case for the Prosecution
C was born on 20^th October 1986 and, as I have said, she was 15 years of age at the time the alleged offences were committed in June and July 2002. The appellant is her father. C had a brother, who I will call A.
At the time of the alleged offences, the appellant, C and A lived in a house in a suburb in Adelaide, South Australia, and at about that time they all slept in the same bed. C and A attended a local high school in 2002, and C was in year 10.
In the period leading up to the alleged offences, the appellant commenced asking C for “special cuddles” which she explained in her evidence as involving a cuddle, bare chest to bare chest. C initially refused, but after a time it seems that special cuddles did occur on a couple of occasions.
The first offence of rape was said to have occurred during the second term of school in June or July 2002. C stayed home from school on the relevant day. A was at school. The case for the prosecution was that the appellant took C into a bedroom in the house and performed an act of cunnilingus on her. C was crying and telling the appellant to stop. The case for the prosecution was that it was on this occasion that the alleged act of indecent assault occurred when the appellant forced C’s hand onto his penis. Initially, C thought the act of cunnilingus had been committed on 27^th June 2002 and the act of indecent assault had been committed on 24^th July 2002, but, as I have said, the dates in the Information were amended at the trial to “between 1^st June and 6^th July 2002”.
After the incidents, the appellant and C went to collect A from school. C said that she did not complain about the appellant’s behaviour because she did not think that it would happen again, and because she was embarrassed by the incidents. The Judge told the jury that in relation to the first alleged offence of rape and the alleged offence of indecent assault, they had to be satisfied that the offences occurred within the period specified in the Information. The appellant was found not guilty of those alleged offences.
The second, third and fourth offences of rape were said to have taken place on 24^th July 2002. The appellant drove C and A to school. A was dropped off at school, but C remained with the appellant who said he was going to take her to a TAFE College which was nearby. C was having difficulties at school, and the appellant said that he would take her to a TAFE College so that she could consider options other than school. The appellant and C did not go to the TAFE College, but after what C described in evidence as a “quick stop” they returned to the house. At the house the appellant carried C into the bedroom, and despite the fact that she was saying no and crying, he removed her clothes and performed an act of cunnilingus on her and two acts of vaginal sexual intercourse. The case for the prosecution was that the appellant ejaculated during the second act of vaginal sexual intercourse and some of the ejaculate was deposited onto the bed sheets.
The next morning the appellant drove C and A to school. After he had dropped them off, C told A that the appellant had raped her. The police were called and attended at the school. It is important to note at this point that two police constables went to the school, and they were Ms Amy Mase and Mr Brenton Williamson. They, and in particular Ms Mase, had conversations with C about the incidents. Ms Mase made handwritten notes of her conversations with C. C and A were taken back to the Sturt Police Station. Two other police officers from the Sturt Child and Family Investigations Unit attended the Sturt Police Station and became involved in the investigation. They were Ms Bernadette Martin and Mr Gregory Barton. Ms Martin had a conversation with C at the police station about the incidents, and she made handwritten notes of the conversation.
Later on 25^th July 2002, the police seized a number of items from the appellant’s house including the bedsheets previously mentioned. At one point, the appellant tried to flee from the police. It is not necessary to relate the details.
Dr Lesley Woodard-Knight, a medical practitioner, examined C at the Women’s and Children’s Hospital on 25^th July 2002. There were no signs of external or internal injuries to C’s genitalia, but Dr Woodard-Knight said that C had mature genitalia and therefore she could have had penetrative sexual intercourse without sustaining any injury. In other words, Dr Woodard-Knight’s findings were equivocal.
Dr Woodard-Knight took swabs from C’s lower vagina and labia. Low levels of sperm were found on the swabs, and the swab taken from the labia was tested for DNA by Ms Kim Williams, a forensic scientist. A partial DNA profile was obtained. The appellant could not be excluded as the source based on the partial profile and, assuming a single source, Ms Williams said that the chance of finding a second unrelated male with the same DNA profile was approximately 1 in 1,800. Semen was located on the bedsheets which had been seized by the police.
As I have said, the appellant was found guilty of three offences of rape committed on 24^th July 2004.
Grounds of Appeal 1, 1A, 1B, 2 and 4
It is convenient at this point to briefly outline the major events at the trial.
The trial commenced on Wednesday 3^rd September 2003. At that time the appellant had a solicitor, Mr Gilbert Aitken, and counsel, Mr Grahame Lang. Mr Lang had signed a certificate under s 8 of the Criminal Law (Legal Representation) Act 2001 on 10^th February 2003 certifying that the appellant was an assisted person. C gave her evidence and was cross-examined on Wednesday 3^rd and Thursday 4^th September 2003. On Monday 8^th September 2003, Mr Aitken and Mr Lang withdrew from the trial. For some days thereafter, the jury were excused from attendance, and various applications were argued before the Judge. During that time, the appellant had a solicitor, Mr Peter Longson, and counsel, Mr Michael Barnett. Mr Barnett made various applications on behalf of the appellant on Monday 15^thSeptember 2003. Mr Longson and Mr Barnett then withdrew from the trial. Thereafter the appellant was unrepresented. On Wednesday 17^th September 2003, the trial resumed before the jury, and on Thursday 18^th September 2003 the appellant was found guilty of three offences of rape. In due course it will be necessary to examine in some detail the circumstances in which the two solicitors and two counsel withdrew.
The appellant submits that by reason of the circumstances which I have identified and the circumstances in which counsel, in particular Mr Lang, withdrew from the trial (which I will outline in due course) he did not receive a fair trial and that there has been a miscarriage of justice.
Grounds 1A and 1B
Grounds 1A and 1B complain of the Judge’s decision to allow Mr Lang and Mr Aitken, and then Mr Barnett and Mr Longson, to withdraw from the trial. Although the Judge referred to the need for Mr Aitken to obtain leave to withdraw as solicitor, and he raised a question as to whether Mr Barnett needed leave to withdraw as counsel, he did not expressly grant leave for the legal practitioners to withdraw. However, from my reading of the transcript of the trial, it is clear that by implication the Judge considered that it was appropriate for the legal practitioners to withdraw. As far as the solicitors are concerned, he must be taken to have made the necessary orders under r16 of the District Court Rules 1992, and as far as counsel are concerned he must be taken to have granted leave insofar as that was necessary. Mr Lang withdrew because his instructions were terminated by the appellant. Although Mr Aitken’s instructions may not have been expressly withdrawn, there was no suggestion in argument in this Court that his withdrawal and immediate replacement by Mr Longson had any bearing on the question of whether the appellant received a fair trial. Mr Barnett and Mr Longson withdrew because their instructions were terminated by the appellant.
If counsel requires leave to withdraw from a case, the circumstances in which leave may be refused are limited. If, for example, counsel sought to withdraw because of his personal convenience, or for quite spurious reasons, then leave might be refused (R v White (1995) 77 A Crim R 531). However, we are not dealing with such a case. Mr Lang, and then Mr Barnett and Mr Longson, withdrew because the appellant terminated their respective instructions. At a practical level, if an accused withdraws his instructions to his solicitor and his counsel because of a dispute between them, then the Judge might suggest an attempt or further attempt to resolve the dispute, and for that purpose he might give the relevant parties time to discuss a resolution. Ultimately however, there is little the Judge can do to prevent a solicitor and counsel from withdrawing if an accused person terminates their instructions. In my opinion, it is clear from the transcript of the trial that the Judge did all he could have in the circumstances of this case to avoid a situation where solicitors and counsel withdrew, and any criticism of him in that regard must be rejected.
Counsel for the appellant submitted that s 8 of the Criminal Law (Legal Representation) Act 2001 placed a greater restriction on Mr Lang’s ability to withdraw because he signed a certificate under that section. I do not think that fact meant that there was any greater restriction on Mr Lang’s ability to withdraw. There is nothing in s 8 to suggest that the signing of a certificate under that section has the effect suggested. It seems to me that the section is designed to see that the procedures under the Criminal Law (Legal Representation) Act 2001 are complied with at an early stage in the trial process.
I reject the complaints in ground 1A and 1B.
Ground 2
Ground 2 raises a challenge to the Judge’s decisions not to adjourn the trial. This ground is put forward on the assumption that the argument that the Judge should have discharged the jury fails. It is convenient to look at this challenge by considering the question of the adjournment of the trial at two points in time. The first point in time is when Mr Aitken and Mr Lang withdrew. The appellant made no submissions to the effect that the Judge did not allow a sufficient adjournment of the trial after Mr Aitken and Mr Lang withdrew. The appellant was right not to do so because it cannot be suggested that the Judge did not allow sufficient time for Mr Longson and Mr Barnett to prepare themselves for the presentation of the defence case. The Judge was never asked to allow further time. The second point in time is after Mr Longson and Mr Barnett withdrew, and the only possible argument here is that the Judge might have adjourned the trial to give the appellant an opportunity to obtain legal representation by way of a third solicitor and a third counsel. However, I do not think that the Judge erred in not adjourning the trial at this point. The jury had already been excused from attendance for a considerable period of time, and in view of the history of the trial, the Judge might well have thought that a third solicitor and a third counsel would find themselves in exactly the same position as Mr Longson and Mr Barnett. The Judge needed to weigh a number of considerations and there is no reason to think that he erred in the exercise of his discretion (McInnis v The Queen (1979) 143 CLR 575 per Barwick CJ at 579). The challenge in ground 2 to the Judge’s decisions not to adjourn the trial must be rejected.
Grounds 1 and 4

The complaint in ground 1(i) relates to the delay during the trial. I assume the appellant complains of the fact that the jury did not hear evidence between Monday 8^th September and Tuesday 16^th September 2003 inclusive. The argument was not developed on the appeal. Although the period is a substantial one, when regard is had to all the circumstances including the reasons for the delay, I do not think that the effect of the delay was to deprive the appellant of a fair trial.
The complaint in ground 1(ii) was the subject of very brief submissions by counsel for the appellant. The Judge explained to the jury on Tuesday 9^th September 2003 that problems had arisen between the appellant and his lawyers, and that it had become necessary for the appellant to instruct new lawyers. The trial before the jury did not resume until Wednesday 17^th September 2003, and the appellant’s counsel submitted that in those circumstances the Judge should have discharged the jury. The actual complaint in ground 1(ii) was not pressed in argument before this Court, and in any event, I have read the Judge’s explanation to the jury on Tuesday 9^th September 2003 and his directions to the jury and I am satisfied that his explanations and directions to the jury were adequate and appropriate. The Judge gave a clear direction to the jury that the breakdown of relations between the appellant and his lawyers and the delay which followed it were irrelevant. He told the jury that it could not give rise to any inference that the appellant was guilty or innocent. I reject the complaint in ground 1(ii).
The complaint in ground 1(iii) is a particular of the complaints in ground 4 and is best dealt with in that context.
The substance or thrust of the appellant’s submissions on appeal relate to the matters raised in ground 4. It is convenient at this point to summarise the appellant’s submissions.
I start with the withdrawal of Mr Lang. The appellant submitted that Mr Lang withdrew because of a disagreement between the appellant and Mr Lang. That disagreement did not come about because of any fault on the part of the appellant. The disagreement arose because Mr Lang did not provide certain material to the appellant, and that in turn led to the appellant being unhappy with the way in which Mr Lang was conducting the case. It is important to note that it was not suggested that in fact Mr Lang had conducted the defence case in an incompetent fashion. The appellant submitted that Mr Lang’s withdrawal could not be overcome by Mr Barnett and Mr Longson taking over the conduct of the defence. They had not seen the witnesses, and in particular, C, give evidence, and in a case turning on credibility, that put them at a serious disadvantage in terms of the conduct of the defence case, and in particular in addressing the jury. The appellant submitted that the Judge should have discharged the jury at that stage.
In relation to the withdrawal of Mr Barnett and Mr Longson, the appellant submitted that the Judge should have discharged the jury after they had withdrawn. The appellant faced serious charges and he was left to proceed with the trial without legal representation in circumstances where he was not at fault, or at least, where, in all the circumstances, he would not receive a fair trial and a miscarriage of justice would result.
Before turning to consider these arguments, it is necessary to say something about the way in which the appeal proceeded before this Court. The evidence relating to the circumstances in which the appellant’s legal representatives withdrew which was before the Judge consisted of an affidavit of the appellant, various submissions made to the Judge by Mr Lang and Mr Barnett and evidence by the appellant on the voir dire. The evidence put before this Court consisted of the material which was before the Judge, four further affidavits of the appellant and an affidavit of each of Mr Aitken, Mr Lang, Mr Longson and Mr Barnett. In addition, the appellant and each of the legal practitioners were cross-examined during the hearing of the appeal before this Court.
I have reached the conclusion that the decisions made by the Judge were correct on the material before him. I have also reached the conclusion that having regard to all of the material before this Court (not just the material which was before the Judge) there has been no miscarriage of justice by reason of the matters alleged in grounds 1 and 4. In those circumstances it is not necessary for me to consider to what extent, if at all, there is an onus on an accused to show that he has been left without legal representation without relevant fault on his part and the extent to which the parties may put before an appeal court material that was not before the Judge.
It is convenient to begin my consideration of the appellant’s submissions by referring to the authorities which discuss the circumstances in which it will be held that an accused facing serious charges who has no legal representation, or who loses his legal representation during a trial, has thereby been denied a fair trial and a miscarriage of justice has resulted.
In Dietrich v The Queen (1992) 177 CLR 292 (“Dietrich”), the High Court considered the power of a court to stay a criminal trial for a serious offence where the accused is unrepresented. It is sufficient for present purposes to refer to two passages, one from the joint reasons for judgment of Mason CJ and McHugh J and the other from the reasons for judgment of Deane J. Mason CJ and McHugh J said (at 315):
“In view of the differences in the reasoning of the members of the Court constituting the majority in the present case, it is desirable that, at the risk of some repetition, we identify what the majority considers to be the approach which should be adopted by a trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. In that situation, in the absence of exceptional circumstances, the trial in such a case should be adjourned, postponed or stayed until legal representation is available. If, in those circumstances, an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.”
Deane J said (at 335 – 336):
“In determining the practical content of the requirement that a criminal trial be fair, regard must be had ‘to the interests of the Crown acting on behalf of the community as well as to the interests of the accused’. There are circumstances in which a criminal trial will be relevantly fair notwithstanding that the accused is unrepresented.”
In Craig v South Australia (1995) 184 CLR 163, the High Court made some observations on the concept of fault on the part of the accused. After setting out part of the passage from the reasons for judgment of Mason CJ and McHugh J in Dietrich which I have set out above, the Court said (at 183 – 184):
“The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused’s inability to obtain legal representation being ‘through no fault on his or her part’ was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that:
‘… what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.’
A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused.”
I pause at this point to make reference to s 11 of the Criminal Law (Legal Representation) Act 2001 which provides as follows:
“11. The fairness of a trial (or a prospective trial) cannot be challenged (and a trial or prospective trial cannot be stayed) on the ground of lack of legal representation unless--
(a) the Commission has, contrary to this Act, refused or failed to provide legal assistance for the defendant; or
(b) the Commission has withdrawn legal assistance for the defendant on the ground that it has been unable to reach agreement with the Attorney-General on a case management plan.”
Neither party suggested that this section affected the determination of the issues in this case, and I proceed on that basis.
The concept of fault on the part of the accused has been considered in a number of cases in New South Wales. The cases are R v Greer (1992) 62 A Crim R 442; R v Frawley (1993) 69 A Crim R 208; R v Small (1994) 33 NSWLR 575 and R v Batiste (1994) 35 NSWLR 437. I will not discuss the facts of those cases in detail.
In R v Greer (supra) the trial date had been vacated on a number of occasions on the application of the accused. When the matter came on for trial the accused sought an adjournment. A short adjournment was granted, but thereafter a further adjournment was refused. That decision was challenged on appeal. Kirby P (as he then was) said (at 451):
“Yet nothing in the International Covenant, nor in the common law, affords a person charged with a criminal offence the right to determine when he or she will be ready to face his trial. Necessarily, that decision is ultimately reserved to the Judicial branch of government. Judges will be guided by considerations which include the public interest and the fair trial of the accused person. They will take into account the need for adequate time and facilities and the provision of reasonably competent legal assistance in the appropriate cases.”
In R v Frawley (supra) the trial Judge refused an application for an adjournment by an accused on grounds which suggested that he was unlikely ever to be satisfied with his legal representation. On appeal the decision to refuse an adjournment was challenged, and the accused submitted that there had been a miscarriage of justice. Gleeson CJ, as Chief Justice of New South Wales, said (at 212):
“The Court will take into account the fact that the appellant was unrepresented in determining its approach to points that were not taken or arguments that were not raised at the trial, and will treat the subject of fresh or new evidence in a more flexible manner than might otherwise be the case. The entire record of the trial proceedings must be scrutinised with particular care to see that no miscarriage of justice has occurred… The fact that the appellant was unrepresented, resulting, as it did, substantially from his own rejection of the legal advice and representation that was provided to him at public expense, does not of itself amount to unfairness: cf Dietrich (at 335-336). The Court must consider whether there was a miscarriage of justice, but it does so in a context in which the fact that the appellant was unrepresented was the result of his own conduct.”
In R v Small (supra) the trial Judge refused an application for an adjournment by an accused on the ground that he wanted to contact legal aid authorities and was unable to represent himself. On appeal the decision to refuse an adjournment was challenged. Hunt CJ (with whom Allen and Ireland JJ agreed) referred to the passage in the reasons of Mason CJ and McHugh J in Dietrich at 315 which I have set out above, and went on to discuss the concept of fault. He said (at 588):
“The concept of fault should not, in my view, be interpreted narrowly. It is a well-known and frequently encountered phenomenon that some accused persons are psychologically quite unable to face up to the fact that their trial is to proceed. They put off applying for legal aid until it is far too late for their case to be prepared adequately. Very rarely could such conduct properly or fairly be characterised as a deliberate refusal or a wilful neglect on their part, yet the absence of legal representation can certainly be characterised as resulting from their fault. The criminal justice system would be crippled if such persons had either the absolute right to an adjournment in order finally to arrange legal representation or the right to a new trial if the trial is unsatisfactory as a result of the absence of such representation when they are solely responsible or at fault for that state of affairs.”
In R v Batiste (supra), Carruthers and Smart JJ each expressed the view that the onus was on the accused to show that the lack of representation was not due to his fault. As I have said, it is unnecessary for me to decide whether that view should be followed by this Court. Smart J made some further observations which are pertinent in this case. He said (at 445):
“The supply of legal aid to an accused may be attended with many problems. Care must be exercised to conserve legal aid funds so that others do not miss out. Accused persons receiving legal aid are entitled to expect a reasonable measure of preparation and skill. It is not uncommon for accused persons to lose a sense of balance and to want excessive conferences, excessive preparation and every minor discrepancy pursued. There is sometimes an inability to face reality. An accused may wish to have her case conducted in a harmful, dangerous or unduly expensive way.
An accused may want steps taken which are either improper or dubious. An accused may demand an unreasonable measure of cross-examining or advocacy skill. Intemperate, groundless or abusive conduct by an accused towards her legal representatives will normally not be tolerated. Legal representatives cannot be expected to act if they are subject to such attacks. These are just a few examples of situations which may occur.
On the other hand an accused may be correct in her allegations that her legal representatives lack diligence or competence or are not spending sufficient time in preparation or are failing to take steps which are reasonably necessary.”
(See also to the discussion of these cases in Wong v The Queen [2001] WASCA 32; (2001) 159 FLR 328 per Pidgeon J (with whom Kennedy and Murray JJ agreed) at 341 – 344.)
In R v Osborne [2002] VSCA 156; (2002) 133 A Crim R 519, an accused terminated his counsel’s retainer during a trial and then applied unsuccessfully for an adjournment of the trial. The trial proceeded with the accused not represented by counsel. Chernov JA (with whom Phillips CJ and Vincent JA agreed) concluded that it had not been shown that the trial Judge erred in refusing the application for an adjournment. Even if the trial Judge had erred, Chernov JA said that it had not been shown that the trial thereafter was an unfair trial. Even if the accused had been subjected to an unfair trial, Chernov JA said that there would be no miscarriage of justice if the accused had not thereby been deprived of a real chance of acquittal. With respect, it is not necessary in the circumstances of this case for the Court to decide if the third step identified by Chernov JA is a necessary or appropriate one.
Chernov JA identified some features of the case before him which distinguished it from the facts in Dietrich. Some of the matters he identified are relevant to the submissions made in this case. He said (at [25]):
“Thus, the observations of their Honours as to the approach to be adopted in considering whether a trial of an unrepresented accused who seeks legal representation should proceed, must be read in the context of the circumstances applicable to that case and those circumstances were markedly different from those that faced the trial judge here. First, the applicant was not an indigent accused who, because he was unable to secure legal representation, sought a ‘stay’ of his trial. Nor was the applicant relevantly ‘without fault’ in being unable to obtain legal representation. On the contrary, he had the ability to fund his representation and had done so. Prior to the adjournment application, he had been represented by competent and experienced counsel and solicitor but, consistently with what he told the judge prior to the commencement of the trial, he withdrew his instructions during the course of the trial apparently because he was not satisfied that his counsel conducted the case as he wanted it conducted. In the circumstances, one could not be confident that, had an adjournment been granted and other counsel were briefed, their instructions would not have been similarly withdrawn if they were not prepared to conduct the defence wholly as the applicant might wish having regard to their duty to the court. Moreover, as has already been mentioned, unlike the situation in Dietrich, the application for an adjournment here was made after the critical Crown witnesses had been cross-examined by the applicant’s counsel in relation to the central issues in this case, including those that pertained to the counts on which he was ultimately convicted.”
In R v Grosser [2002] SASC 193, Duggan J said (at [59] – [64]):
“The question arises, therefore, as to whether a trial in which the applicant was unrepresented would be unfair and, as part of that enquiry, it is necessary to determine whether such lack of representation should be seen as being through no fault on his part (Craig v South Australia (1995) 184 CLR 163).
In determining these issues I have had regard to the guidance given in Craig (183) as to the effect of the reasons in Dietrich:
‘The effect of those comments was to indicate circumstances in which a trial judge should grant an adjournment or stay until legal representation was available. The reference in them to an accused’s inability to obtain legal representation being ‘through no fault on his or her part’ was not intended to indicate that every instance of misbehaviour, improvidence or other fault on the part of an accused which had contributed to his or her lack of representation must automatically preclude entitlement to a stay. In that regard, we agree with the view expressed by Olsson J in the Full Court that:
‘… what was in contemplation was a test which focused on the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.’
A fortiori, it was not intended to suggest that the power to grant a stay on the grounds of inability to obtain legal representation does not exist at all if there has been, as a matter of objective fact, contributing fault on the part of the accused.’
I am also mindful of the fact that, if the legal aid on offer to an accused person is transparently inadequate or subject to unreasonable conditions, the accused may fall into the category of a person to whom appropriate legal representation is unavailable through no fault of his or her own. (Souter (1997) 93 A Crim R 400 at 404; Attorney-General (NSW) v Milat (1995) 37 NSWLR 370).
However, it is far from the case that the legal assistance available through Mr Germein and Mr Klotz is clearly inadequate and it is equally obvious that the conditions attached to the grant of aid are fair and reasonable. Nevertheless, despite signing an undertaking that he will abide by the reasonable advice of his counsel, the applicant has demonstrated a determination not to be represented by anyone who does not accept his view of what is appropriate in the preparation and conduct of his case.
The applicant’s assertions that the counsel most recently dismissed lied in court and that counsel and the solicitor acted against the applicant’s interests are quite baseless. There is nothing before me to support the applicant’s often repeated assertions that other lawyers assigned to represent him from time to time had taken part in a ‘cover-up’ with the DPP and have worked with the NCA and the DPP behind his back.
I have no doubt that the applicant will refuse to accept legal assistance unless those who represent him will conduct the trial in the manner he requires it to be conducted regardless of the cost or relevance. He has rejected offers of skilled legal assistance for the forthcoming trial and has acted unreasonably in so doing. It cannot be said that he is unrepresented through no fault of his own.”
This decision was upheld on appeal ([2003] SASC 264).

In summary, it seems to me that it is necessary to consider whether the trial Judge erred in refusing to discharge the jury. Ultimately however, whether the trial Judge erred or not, the critical question is whether the accused has received a fair trial. To determine that question, a number of circumstances are relevant. An important consideration is whether the accused has become unrepresented through his own fault. Fault is not to be narrowly interpreted in the sense of being restricted to wilful or deliberate conduct, but at the same time not every instance of misbehaviour, improvidence or unreasonable conduct will be sufficient to disqualify an accused from successfully arguing that he has not received a fair trial because he was unrepresented. I should add that in my opinion, fault will include conduct by an accused which means that he is responsible for the fact that he does not have legal representation. The answer in any particular case is likely to depend to a large extent on the particular circumstances of the case. The critical question is whether there has been a miscarriage of justice.
Before leaving the legal principles, it is worth mentioning the principles relevant to the extent to which an accused person is bound by the way his counsel conducts the case. The general rule is that a party is bound by the conduct of counsel and that counsel have a wide discretion as to the manner in which the proceedings are conducted. In R v Birks (1990) 19 NSWLR 677 Gleeson CJ, as Chief Justice of New South Wales, said (at 685):
“The relevant principles, may be summarised as follows:
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.”
(See also R v O’Neill [2002] SASC 55; (2002) 81 SASR 359 per Martin J at 367 – 369.)
I turn now to consider the circumstances in which the appellant’s legal representatives withdrew. It should be noted that as far as the trial before the Judge is concerned, the appellant waived legal professional privilege, at least to a certain extent. There was a waiver of legal professional privilege by the appellant in relation to the further information put before this Court.
The narrative which follows consists of my findings of fact on the relevant issues. Whilst there was a good deal of common ground between the parties, there were some areas of dispute. In those areas, I prefer the evidence of the legal practitioners to that of the appellant. Each of the legal practitioners gave evidence in a straightforward and direct fashion, and their evidence was supported in material respects by the transcript of the trial and the documents. Even allowing for the fact that the appellant would have been far less familiar with the procedures than the legal practitioners, the appellant’s evidence was not persuasive in certain areas which I will identify.
The Circumstances leading to the breakdown in the relationship between the appellant on the one hand and Mr Lang and Mr Aitken on the other
The trial commenced on Wednesday 3^rd September 2003, and the prosecution opened and called C. Ms David appeared for the Director and Mr Lang appeared for the appellant. The trial continued on Thursday 4^th September 2003 when C was further examined and then cross-examined by Mr Lang. C was not cross-examined about any statements she allegedly made to either Ms Mase or Ms Martin. The trial continued on Friday 5^th September 2003 when A gave evidence and was cross-examined by Mr Lang. Dr Woodard-Knight and Ms Williams each gave evidence and were cross-examined by Mr Lang. Ms Mase and Mr Williamson gave brief evidence. In their evidence there was no attempt to lead evidence of their conversations with C, and in particular, Ms Mase’s conversation with C. Mr Lang did not cross-examine Ms Mase or Mr Williamson.
At the conclusion of the hearing on Friday 3^rd September 2003, Mr Lang gave certain school attendance records which he had to the appellant and attached to the records were Ms Mase’s handwritten notes of her conversations with C on 25^th July 2002. C told her of her movements and those of the appellant on 24^th July 2002. The appellant had not seen the notes previously and he studied them over the weekend of 6^th and 7^th September 2002. He identified what he saw as certain inconsistencies between what C told Ms Mase on 25^th July 2002 and what C had said in her evidence. On the morning of Monday 8^th September 2002 he raised those inconsistencies with Mr Lang. Of course by that time, C and Ms Mase had given their evidence and been released.
Mr Lang asked the appellant to consider a document relating to the appellant’s decision to give, or not give evidence. The appellant refused to sign the document, and, as I have said, raised with Mr Lang the inconsistencies between C’s account as set out in Ms Mase’s notes and C’s evidence. Mr Lang discussed with the appellant the amendment of the date in relation to the first charge of rape in the Information. Mr Lang also advised the appellant that it may be damaging to his defence to try and put all of the alleged inconsistencies to C. The appellant instructed Mr Lang to apply to have C recalled. Mr Lang advised against this course. He said that the inroads the defence had made in relation to the prosecution case may be compromised. The appellant became angry and said, among other things,
“I’m not doing 15 years because you fucked up.”
I reject the appellant’s evidence that he did not say this to Mr Lang.
It appears that at about this time, the appellant identified certain other statements which he considered contained matters inconsistent with other statements by C and her evidence at trial.
Mr Lang advised the Judge that the appellant wished to make an application to have witnesses recalled, and that he (Mr Lang) did not think that it was appropriate for him to make the application on the appellant’s behalf. Mr Lang said that the witnesses the appellant may apply to have recalled were C, Ms Mase, and possibly, Mr Williamson and A. Mr Lang also foreshadowed a possible application for discovery and production of some notes provided to Ms Williams. Mr Lang asked the Judge to adjourn the trial to enable him to speak to his instructing solicitor. The trial was adjourned to Tuesday 9^th September 2002.
As a result of these developments, Mr Lang felt that he was in a dilemma. His forensic judgment was being questioned and he was being asked to do something he thought would undermine the appellant’s defence. Mr Lang also felt that the appellant would hold him responsible if the appellant was convicted. He thought the prosecution case was a strong one and that the appellant’s “apparent lack or loss of faith in [him] place[d] [him] in a precarious situation.” Mr Lang then took the advice of another counsel who was more senior to him. In accordance with that advice, Mr Lang told the appellant that if the appellant insisted he would continue as counsel for the purpose of making an application for certain witnesses to be recalled, but he advised the appellant that in his view it would be better if another counsel appeared and made that application. I reject the appellant’s evidence that Mr Lang told the appellant that it would be impossible for him (ie, Mr Lang) to go on with the trial. Mr Lang prepared some handwritten instructions and discussed those instructions with the appellant. They were signed by the appellant on Monday 8^th September 2003. They are important because they represent a contemporaneous record of the relevant events. They read as follows:
“I [the appellant], instruct my counsel as follows in respect of my trial on four counts of rape, four counts of unlawful sexual intercourse and one count of indecent assault.
Having looked at the notes of Police Officer Mase, I have queried counsel, Grahame Lang as to why he did not cross-examine that officer as to perceived inconsistencies in [C’s] initial statement to her.
Mr Lang advises that he made that decision as counsel and advises me that
1In his opinion the apparent inconsistencies are equivocal and consistent with misunderstanding.
2 A challenge upon the basis of these matters could be counterproductive.
3The notes were not advanced as constituting a formal statement and the evidence is to the effect that it was not intended at the time to take such a statement.
4The riposte to any challenge is likely to be that such was the complainant’s emotional condition at the time that it was impossible then to obtain reliable detail from her.
Mr Lang further advises that in order to reverse his decision he would have to apply to the court for the recall of the relevant witnesses, and that this in itself could compromise my defence.
He advises that it would be better for a different counsel to undertake this task.
I do not accept his advice regarding the police officer’s notes and wish the relevant witnesses recalled so that these matters may be put as a previous inconsistent statement.
I do/~~do not~~ wish him to stand down as counsel.
(the appellant’s signature) GL: signed
8.9.03”
The appellant signed the document and I find that the appellant understood the contents of the document at the time he signed it.
Mr Lang then spoke to Mr Aitken who had been appearing in another court. There was then a conversation between the appellant, Mr Lang and Mr Aitken. The discussion became heated and Mr Aitken said that he felt compromised by the dispute between Mr Lang and the appellant.
Mr Aitken’s role is probably not critical, but his evidence does to an extent confirm Mr Lang’s evidence. At the meeting between the appellant, Mr Lang and himself, the appellant was highly agitated, and was accusing Mr Lang of incompetence in the conduct of the trial. He was abusing Mr Lang and, as Mr Aitken put it, “accused him of sabotaging his defence”. Mr Aitken told the appellant that he agreed with the way Mr Lang was conducting the case. Mr Aitken felt that the appellant was losing faith in him because he (Mr Aitken) had chosen to brief Mr Lang of whom the appellant was now highly critical. Mr Aitken felt that the appellant would not listen to him and that it was in the appellant’s best interests to obtain a new solicitor. Mr Aitken contacted Mr Longson.
Mr Lang appeared before the Judge when the trial resumed on Tuesday 9^thSeptember 2003. He said that he had an “unresolvable ethical dilemma” with the appellant. Mr Lang said to the Judge:
“It is not so much a change of instructions, and it is not, in my view, a matter for instructions. [The appellant] has questioned my forensic judgment and he has questioned my propriety in as much as he feels I have withheld, in an unprofessional way, materials from his attention. That is, I think, as far as I can go, and my view is that I’m precluded from acting. I have signed instructions from him to cease to act, but I don’t feel I can continue, whatever the situation, from my view.
In as much as it is required, I seek leave of the court to desist from acting.”
Mr Aitken also explained his position to the Judge. He said that he felt “critically compromised”, and that he did not think the appellant had any confidence in him in view of the fact that he was questioning Mr Lang’s conduct.
Mr Lang said to the Judge that the appellant had suggested to him that he had deliberately withheld material from the appellant. Mr Lang said to the Judge:
“I’m not saying [the appellant’s] request is frivolous; it is a matter, perhaps, of value judgment. I’m not the vehicle through which he can make, properly, the application as things stand. He wants to make it. On one view of it, on one interpretation, I can see a basis for it; a basis which I considered and rejected as his counsel, and he is somewhat appalled by that decision. It’s had repercussions not only on a discrete point but for the conduct of the trial. It may spill out to other things, so he really needs to instruct someone afresh.
Regardless of what’s happened between us, I don’t think it would necessarily be the case that a new counsel would be suffering from the same handicap or would inherit the same problem, because it may be that, in [the appellant’s] mind, I have failed him. Now, it would be for a jury to consider that; perhaps the jury might never see that as a consideration, but, under those circumstances, it is not necessarily the case that a fresh counsel would be bound by my decisions. A fresh counsel could undo some of my decisions certainly with more elegance than I could do myself.”
Mr Lang stated (T239 line 18 to 24):
“I think that I have conducted the trial in a certain fashion from commencement, and I think that I can say that [the appellant] and I have had discussions about my approach, and we have managed to maintain, up until recently, an accommodation as between his expectations and my conduct, and I’ve been able to successfully explain to him, to his satisfaction, my approach to certain matters.”
Mr Longson also appeared before the Judge on 9^th September 2003. When he first appeared he said that he appeared as amicus curiae. After some debate between Mr Longson and the Judge, Mr Longson said that he was prepared to act as the appellant’s solicitor, but that he was not prepared to act as counsel. He was prepared to see if he could engage counsel. At that point, the Judge said that he would not give Mr Aitken leave to withdraw.
The Judge then had the jury brought into court, and he explained to the jury that it had become necessary for the appellant to instruct a new solicitor and a new barrister. Later on 9^th September 2003, Mr Longson appeared and said that he had been able to instruct Mr Barnett to act as counsel.
Mr Barnett appeared on Wednesday 10^th September 2003 and asked for an adjournment so that he could consider the brief. The Judge adjourned the trial to the following day. Mr Lang and Mr Aitken took no further part in the trial after Tuesday 9^th September 2003. It seems that the trial proceeded on 10^th September 2003 and thereafter on the basis that Mr Barnett was the appellant’s counsel and Mr Longson was his solicitor.
I pause at this point to make findings as to the reasons Mr Lang’s instructions were withdrawn.
The appellant took a keen interest in the conduct of his defence and in the material provided to his advisers by the prosecution including witness statements. He read the witness statements carefully. Before the trial he prepared a set of detailed notes relating to various matters and provided them to Mr Aitken. I have looked through the notes which were tendered in evidence during the voir dire hearing before the Judge. They deal with a whole variety of matters including the appellant’s relationship with C and A. Much of the material is discursive and irrelevant, and would not be the subject of proper cross-examination. Furthermore, to cross-examine on some of the material in the notes would be a risky strategy for the defence.
Neither Mr Aitken nor Mr Lang provided the following documents to the appellant before the conclusion of evidence on Friday 5^th September 2003:
1.Ms Mase’s handwritten notes previously referred to. Mr Lang had a copy of the handwritten notes about a week before trial.
2.Ms Mase’s witness statement signed on 30^th August 2002. In fact, the appellant did not see the witness statement until after Mr Lang had withdrawn and Mr Barnett had commenced acting in the matter, and he may never have been given a copy of Ms Mase’s witness statement. The witness statement largely reflects Ms Mase’s handwritten notes, and for present purposes, it has no significance additional to that of the handwritten notes. Mr Lang had a copy of Ms Mase’s witness statement.
3.The police apprehension report. Mr Lang said that he was given a copy of the police apprehension report in the course of the trial which commenced on 3^rd September 2003, but he said that he could not be any more precise than that. I think he had the report before that, and in fact the appellant said that Mr Lang showed him a copy of the police apprehension report when the matter was before the Magistrates Court in late 2002 and that they discussed the contents of the report at that time. The appellant said that he was not given a copy of the report before 8^th September 2003, and possibly not before 11^th September 2003.
4.A second witness statement of A signed on 3^rd September 2003. A signed two witness statements, one dated 29^th August 2003 and the other dated 3^rd September 2003. The second witness statement corrects an earlier statement by A about his age, and contains information about the sleeping arrangements in the house at about the time of the alleged offences. Mr Lang said that he does not recall the contents of A’s second witness statement. I find that Mr Lang had a copy of A’s second witness statement.
5.Ms Martin’s handwritten notes of her conversation with C on 25^th July 2002. This document falls into a different category from the above documents because it was not provided by the prosecution to the defence until Wednesday 10^th September 2003. At that time the prosecution provided the notes to Mr Barnett and Mr Longson.
Ms Martin prepared a witness statement and she signed it on 29^th August 2002. Ms Martin’s witness statement does not contain details of her conversation with C, although it does refer to the fact that a conversation had taken place, and that Ms Martin made handwritten notes of the conversation. The police apprehension report which, as I understand it, was prepared by Mr Barton, was based on Ms Martin’s handwritten notes of her conversation with C. It was not suggested in this Court or before the Judge that, for the purposes of any alleged inconsistencies in the various accounts given by C, there was any material difference between Ms Martin’s notes and the police apprehension report.
On the evidence, I am satisfied that what led to the breakdown in the relationship between the appellant and Mr Lang was the fact that the appellant was not given Ms Mase’s handwritten notes. Although he was not provided with a copy of the police apprehension report, the second witness statement of A and Ms Martin’s handwritten notes, the fact that those documents were not given to the appellant did not lead to the breakdown in the relationship. The appellant submits that had he been provided with Ms Mase’s notes he would have identified an inconsistency between what C told Ms Mase and what C said in her evidence about her movements with the appellant between the time A was taken to school and the time at which they returned to the house.
Mr Lang said, and I accept, that he made a decision about whether he should use the account contained in Ms Mase’s handwritten notes, which I take to mean that he decided not to cross-examine C about the account contained in the notes. This is at least partly confirmed by the appellant’s evidence of what Mr Lang said to him when he raised the issue of Ms Mase’s handwritten notes. Mr Lang said that he had not overlooked the notes, he had seen them, but he did not think that it was to the appellant’s advantage that C be cross-examined about the account contained in them.

On the appeal, the appellant’s counsel did not submit that the decision by Mr Lang not to cross-examine C on the account contained in Ms Mase’s notes was not one that could be made by a reasonably competent counsel. In other words, it was not suggested that in that respect, Mr Lang fell below the standard of reasonably competent counsel. That would be my finding in any event. It is obvious that there is often a danger in cross-examining a witness about what seems to be a prior inconsistent statement. Such cross-examination may in fact give the witness the opportunity to confirm his or her evidence in chief, or it may open the door to re-examination on other parts of the witness’s statement which may ultimately bolster the witness’s credibility and reliability. I do not think the fact that the Judge gave leave for C to be recalled for further cross-examination suggests otherwise. This was not done because the Judge found that Mr Lang had failed in his duties as counsel, but it seems in an effort to ensure that the appellant was given every opportunity to present his defence and because the prosecution did not oppose C being recalled for further cross-examination on certain topics.
Nor do I think it can be said that Mr Lang’s advice against making an application for the recall of C for further cross-examination fell below the standard of a reasonably competent counsel.
The appellant’s counsel submitted that Mr Lang “walked out”. That is not a correct description of what occurred. Mr Lang’s instructions were terminated by the appellant. He was upset that Ms Mase’s handwritten notes were not provided to him, but in the end, the appellant was provided with advice that did not fall below the standard of a reasonably competent counsel and he refused to accept that advice.
I should mention the other material not provided to the appellant, although as I have said, the fact that this material was not provided to the appellant did not lead to a breakdown in the relationship between the appellant and Mr Long. As I have already said Ms Mase’s witness statement signed on 30^th August 2003 adds nothing to her handwritten notes and I have dealt with the notes. The fact that the police apprehension report was not provided to the appellant is of no significance because the appellant was shown a copy of the report in late 2002 and he discussed the contents with Mr Lang.
As far as A’s second witness statement is concerned, Mr Lang said that he discussed A’s evidence with the appellant, and he said that he had adequate and appropriate instructions from the appellant to cross-examine A. He said that he would have had all relevant statements of A and would have divulged and discussed the contents of the same with the appellant. The appellant said he never talked about or discussed the second statement of A with Mr Lang. He said that he did not know the second statement of A existed. It is difficult to make a finding as to the extent to which Mr Lang discussed A’s second statement with the appellant because the evidence is very general. What to my mind is significant is that the appellant did not identify either before the Judge, or before this Court, any feature of the second statement which was of significance to the conduct of the trial. As I have said, A’s second statement corrects a mistake about his age and contains some brief comments on the sleeping arrangements in the house at the time of the alleged offences.
Ms Martin’s handwritten notes were not provided by the prosecution to the defence. As I understand it, the prosecution did not argue that it was not under an obligation to provide the notes to the defence, and that concession appears to be correct (R v K (1991) 161 LSJS 135; Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708). The fact that the notes were not provided did not play any part in the breakdown of the relationship between the appellant and Mr Lang. It follows that the point in relation to Ms Martin’s notes is not related to the relationship between the appellant and his legal representatives, and it is not a point raised in the Notice of Appeal. That in itself is not fatal if in fact the failure to provide the notes led to a miscarriage of justice. I do not think that it did. The appellant’s counsel did not identify any matter in the notes which had a material bearing on the defence case, and in any event, any point in the notes would also have been apparent from the police apprehension report which the appellant’s legal advisers had. In any event, insofar as there was any injustice to the appellant it was overcome by the fact that the Judge granted leave for C to be recalled for further cross-examination in relation to the matters in Ms Martin’s handwritten notes.
The appellant was not left without legal representation as a result of the withdrawal of Mr Lang and Mr Aitken. After they had withdrawn he had a solicitor and counsel (Mr Longson and Mr Barnett) acting for him. It was submitted that he was nevertheless disadvantaged because Mr Barnett had not seen the witnesses who had given evidence, and in particular C. That is a disadvantage, but its significance is to be assessed in the context of the circumstances in which Mr Lang and Mr Aitken withdrew. Mr Lang’s instructions were terminated by the appellant. He did not “walk out” as suggested by the appellant. Mr Lang’s conduct and advice had not fallen below the standard of a reasonably competent counsel. In those circumstances, the Judge did not err in refusing to discharge the jury after Mr Lang and Mr Aitken withdrew.
The appellant did not argue that Mr Lang had acted incompetently or in error in terms of his conduct of the defence case, and in particular the cross-examination of the witnesses called by the prosecution, and that the effect of that incompetence or error could not be cured by allowing witnesses to be recalled for further cross-examination. That argument would fail in any event because it has not been established that Mr Lang acted, or even may have acted, below the standard of a reasonably competent counsel.
The Involvement of Mr Barnett and Mr Longson and the Breakdown in their relationship with the Appellant
On 10^th September 2003 the trial was adjourned to 11^th September 2003 to enable Mr Barnett to prepare certain applications which he foreshadowed.
On 11^th September 2003 Mr Barnett made two applications on behalf of the appellant, namely,
1.an application to have C recalled for further cross-examination so that certain alleged inconsistencies between what she said shortly after the incidents and what she said in evidence could be put to her. It was said that the various witnesses to whom she had made the statements may also need to be recalled.
2.in part dependent on the outcome of the first application, and in part independent of it, an application for a declaration of a mistrial and an order discharging the jury. The application was put independently of the first on the ground that the Judge should declare a mistrial because the appellant’s second counsel had not been present when C gave her evidence and that put him at a serious disadvantage in a case turning on credibility. That disadvantage included the difficulty he would face in addressing the jury when the jury had seen C give evidence and he had not.
I do not think it necessary to examine in detail the arguments put on the two applications. After hearing argument the prosecution conceded that it would not oppose C being recalled and cross-examined where the cross-examination arose from documents not provided to the appellant. Those topics comprised inconsistencies said to arise from Ms Mase’s handwritten notes and inconsistencies said to arise from Ms Martin’s handwritten notes.
On Friday 12^th September 2003 the Judge ruled consistently with the concessions made by the prosecution. The Judge also ruled, largely I think on pragmatic grounds, that inconsistencies said to arise between C and A about what they said to each other at school on 25^th July could be put to C. In other words, she was going back into the witness box in any event, and this topic would not add a great deal to the length of any further cross-examination.
The Judge rejected cross-examination of C on topics upon which C had already been cross-examined, or on topics which were said to arise because of Mr Lang’s disobedience of express instructions given to him by the appellant. The appellant did not argue that the Judge erred in his ruling as to the topics upon which the appellant could and could not further cross-examine C.
The Judge refused to declare a mistrial and make an order discharging the jury. He said that any unfairness to the appellant was outweighed by the need for the trial to proceed, the cost which would otherwise be caused to the community and the unfairness which would otherwise be caused to C. As I have already said, the Judge did not err in so ruling.
On Monday 15^th September 2003 Mr Barnett appeared and applied for an adjournment of the trial so that the appellant could seek a review of the Judge’s decision. The Judge directed that the trial proceed. At that point, Mr Barnett advised the Judge that his instructions and those given to Mr Longson had been terminated. Mr Barnett remained in Court to provide such assistance as he could to the Judge and to the appellant.
Mr Barnett’s instructions (and those of Mr Longson) were terminated by the appellant.
The appellant then made submissions on his own behalf and he maintained that Mr Lang had ignored certain instructions which he had been given. He asked the Judge to expand the topics upon which C might be further cross-examined and to consider again the application for the Judge to declare a mistrial and make an order that the jury be discharged. The appellant gave evidence and tendered the notes he had prepared and given to Mr Aitken and to which I have already referred. The Judge again declined to declare a mistrial and make an order that the jury be discharged. The prosecution was prepared to concede some fairly minor additional topics in relation to the further cross-examination of C and the Judge indicated that he was prepared to expand his previous ruling to include them.
In terms of Mr Barnett’s role as counsel and the advice he gave to the appellant, I make the following findings:
1.Before the application for leave for C to be recalled was made, Mr Barnett advised the appellant that he would not necessarily advise the appellant to avail himself of the opportunity to further cross-examine C if the Judge gave him leave to do so.
2.Mr Barnett advised the appellant that in making his application, he should focus on the matters he became aware of only when material was provided to him, and not on Mr Lang’s alleged failure to follow express instructions.
3.After the Judge’s ruling allowing further cross-examination of C on certain topics, the appellant was unhappy and instructed Mr Barnett to seek an adjournment of the trial so that he could appeal against the Judge’s ruling. Mr Barnett advised the appellant that such an application was unlikely to be successful. Mr Barnett was instructed to make the application, and that if it was unsuccessful, he was to advise the Judge that his instructions and those given to Mr Longson were terminated. The application was unsuccessful and Mr Barnett advised the Court of his instructions. It seems that at about this time the appellant spoke to another inmate at the Yatala Labour Prison and was advised by him to lodge an appeal against the Judge’s ruling.
4.Although Mr Barnett remained in Court for some time to be of assistance to the Court and to the appellant, neither he nor Mr Longson were ever re-engaged by the appellant. After the Judge had expanded the topics upon which C might be further cross-examined, Mr Barnett provided certain advice to the appellant. The best way of summarising what happened then is to quote from Mr Barnett’s letter to Mr Longson dated 17^th September 2003 wherein he reports as follows:
“When we conferred with [the appellant], I advised him that I was of the view that none of the topics upon which he had been given leave to further cross examine the complainant were of such forensic significance so as to tactically warrant the complainant being recalled for the purpose of those matters being put to her. Some of that matters that he wished to put were quite insignificant. Other matters, even if of some significance, were unlikely to be proven to be prior inconsistent statements or, even if so proven, were unlikely to materially impair the jury’s confidence in the complainant’s testimony. I advised [the appellant] that I did not consider it to be in his best interests to have the complainant recalled to further cross examination as the forensic benefits, if any, were very small compared to the forensic costs, being the likely proof by the prosecution of prior consistent statements from the complainant. I advised him the tactical focus of the trial should not be upon minor inconsistencies with the complainant’s statements, but rather upon his explanation of the circumstances in which semen almost certainly emanating from him came to be detected in the complainant’s vaginal swabs. I advised [the appellant] that, if he wished me to conduct the trial for him, he would be required to provide me with instructions not to require the complainant’s recall and that he had been advised that if he provided me with those instructions, he would not be able to complain, if convicted, upon appeal, that he had been deprived of the opportunity of cross examining the complainant about the matters upon which he had been given leave. [The appellant] did not agree with that advice and refused to sign instructions to that effect.”
Mr Barnett said in evidence, and I accept his evidence, that he doubted whether he would have put the alleged inconsistencies which were the subject of the appellant’s application for C to be recalled even if he had been in the trial from the outset and was cross-examining C for the first time.
There was a dispute between the appellant and Mr Barnett and Mr Longson as to whether Mr Longson ever said that he would only act if the jury was discharged. I accept the evidence of Mr Barnett and Mr Longson on this point and I find that Mr Longson did not say this. The subsequent behaviour of Mr Barnett and Mr Longson is not consistent with a statement by Mr Longson that he would only act if the jury was discharged.
On 16^th September 2003, Mr Barnett advised the Judge that he and Mr Longson had not been re-engaged. I find that they were not re-engaged because the appellant would not accept their advice. It was not suggested that their advice was other than the advice which would be provided by reasonably competent counsel. Mr Barnett then left the Court. The appellant said that he was not qualified to represent himself and he asked for the opportunity to seek what he described as “other legal counsel”. The Judge decided that the trial should proceed, although he did adjourn the trial until 17^th September 2003. As I have already said, the Judge did not err in refusing an adjournment so that the appellant would have the opportunity to seek “other legal counsel”.
On Wednesday 17^th September 2003 the appellant said that he would take no further part in the trial. The trial proceeded and the prosecution called Mr Barton, Ms Martin, Detective Senior Constable David Hirlam, Senior Constable Matthew Nairn and Senior Constable Osborn. The appellant did not cross-examine any of these witnesses.
Counsel for the prosecution did not address the jury. The appellant did address the jury. The appellant was convicted of three counts of rape.
Summary
The appellant terminated Mr Lang’s instructions during the trial. It was his decision to do that. There is no evidence that Mr Lang’s conduct and advice fell below that of a reasonably competent counsel. Mr Lang was replaced by Mr Barnett. Mr Barnett had not seen C give evidence and that was a disadvantage. However, the appellant was not left without legal representation when Mr Lang withdrew, and in view of the circumstances surrounding the termination of Mr Lang’s instructions, the Judge did not err in refusing at that stage to declare a mistrial and order that the jury be discharged.
The appellant terminated the instructions he had given to Mr Barnett and Mr Longson. Again, it was his decision to do that and there is no evidence to suggest that Mr Barnett’s conduct and advice fell below that of a reasonably competent counsel. In view of the circumstances surrounding Mr Lang’s withdrawal and then the withdrawal of Mr Barnett, the Judge did not err in refusing to declare a mistrial and order that the jury be discharged after Mr Barnett withdrew.
Those are important conclusions, but, as the cases illustrate, the critical question for this Court is whether, in all the circumstances, the appellant has been denied a fair trial and whether a miscarriage of justice has occurred (see for example, R v Frawley (supra) per Gleeson CJ at 212). I do not think the appellant was denied a fair trial in all the circumstances. The appellant was represented by counsel for three days and during that time the substance of the case for the prosecution was put before the jury. A number of witnesses called by the prosecution were cross-examined extensively by Mr Lang. The appellant then terminated Mr Lang’s instructions. As I have said, Mr Lang’s conduct and advice did not fall below the standard of a reasonably competent counsel and it was the appellant’s choice to terminate the instructions of Mr Lang. The appellant was then represented by another counsel who was willing to act, and in the circumstances, the change of counsel did not justify the declaration of a mistrial and the making of an order that the jury be discharged. It was the appellant’s choice to terminate the instructions of Mr Barnett and it was his choice not to re-engage him. As I have said, there is nothing to suggest that Mr Barnett’s conduct fell below the standard of a reasonably competent counsel. It is necessary to consider the course of the trial after Mr Barnett and Mr Longson withdrew. The appellant told the Judge that he wanted to take no part in the trial. I have read the transcript of the trial after Mr Barnett withdrew and I do not think the Judge could have done any more than he did in terms of the assistance he provided to the appellant and the time for preparation which he allowed him.
Having regard to all the circumstances, including the context in which Mr Lang and Mr Barnett each withdrew, I do not think there has been a miscarriage of justice.
I reject the complaints in grounds 1 and 4.
Grounds 3.1 and 3.2
As to Ground 3.1, it is convenient to set out the relevant passage from the Judge’s summing up:
“Scientists do not talk in terms of that proving that it came from [the appellant]. Nor do they put odds on it. What they do is to look at the chance of it coming from some other, randomly selected, person. Ms Williams applied certain formulas and concluded that there was a one in 1800 chance that that match would occur with such a randomly selected person other than [the appellant]. You can do your own sums, but that obviously means there will be quite a number of people in South Australia with whom that same match can be made if there is one in every 1800. It does not prove that the semen could only have come from [the appellant].
However, you consider that evidence in conjunction with all of the other evidence. Obviously not the whole male population had access to [C]. When you look at that one in 1800 chance that it was someone else, if you are looking at a small group of people who it may be, then that number may assume greater significance. If there are other indications that it came from [the appellant], it may be more significant still. In that context, you have the evidence of [C] and if you were to accept her evidence, or be considering it, and you found that what she said remained consistent, that number might be more significant to you than if it was a number in a vacuum. You must not overlook the chance that the semen in her vagina came from some other man. She said it did not.”

There are two aspects to the appellant’s complaint in ground 3.1. The first relates to the Judge’s suggestion to the jury that the number of 1 in 1,800 chance may become more significant depending on their acceptance or otherwise of other evidence in the case. I do not think there is any substance in this complaint. The Judge did not fall into the error of suggesting to the jury that in determining whether they accepted the DNA evidence beyond reasonable doubt they could have regard to other evidence in the case (R v Smith (1998) 71 SASR 543; R v Karger [2002] SASC 294; (2002) 83 SASR 135). I think the Judge was making an obvious, and in one sense unnecessary point, that having accepted the DNA evidence, and in particular the match probability, the other evidence might narrow the field down even further. That is an obvious point because if the jury accepted C’s evidence then the offender was the appellant. The other aspect of this ground of appeal is that it is said that the Judge made no reference to the fact that A slept in the same bed as C and would also be a likely match to the DNA portion analysed. It was never put to C or A that they had had intercourse. It was put to C that she had found a condom that the appellant had used in the course of having sexual intercourse with another woman, and inserted semen from the used condom into her vagina. She denied that. That possibility was put to the jury by the Judge in the course of his summing up although he correctly noted that there was no evidence of it. In view of these circumstances, the Judge did not err in his summing up in the manner suggested.
Ground 3.2 was abandoned during the course of submissions to this Court. In any event, there is no substance in the complaint. The appellant was represented by two experienced legal practitioners prior to the trial, and by Mr Lang during the evidence by the witness who carried out the DNA testing. In fact, Mr Lang cross-examined Ms Williams at length. The Judge was under no obligation to provide assistance or advice to the appellant in circumstances in which the appellant was represented by competent legal practitioners. Furthermore, no evidence was put before this Court to suggest that the DNA evidence called by the prosecution might have been successfully challenged.
Conclusion
I reject all grounds of appeal and I would dismiss the appeal.
ANDERSON J I agree with the reasons of Besanko J and with his Honour’s findings of fact. I agree also that the appeal should be dismissed.

Details

AGLC: R v IAS [2004] SASC 240
Case: [2004] SASC 240
Decision Date: 13 August 2004

CaseChat Overview and Summary

In the case of R v IAS, the appellant contested their conviction in the County Court, which was subsequently affirmed by the Court of Appeal. The primary issue in this appeal was the adequacy of legal representation during the trial and the handling of DNA evidence. The appellant argued that their representation was deficient and that the DNA evidence should not have been admitted.

The Court examined whether the appellant's legal representation was adequate and if the DNA evidence was properly handled. The appellant had been represented by experienced legal practitioners before and during the trial, including during the cross-examination of the witness who performed the DNA testing. The Court found that there was no obligation for the trial judge to provide additional legal assistance when the appellant was already represented by competent legal counsel. Additionally, no evidence was presented to suggest that the DNA evidence could have been successfully challenged.

The Court concluded that the appellant's grounds of appeal were without merit. The appeal was dismissed, and the Court upheld the findings of fact and the decision of the trial judge. The Court of Appeal's earlier decision affirming the conviction was also supported. The final order was to dismiss the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUGGAN J ANDERSON J (dissent)

Ground 3.2 was abandoned during the course of submissions to this Court. In any event, there is no substance in the complaint. The appellant was represented by two experienced legal practitioners prior to the trial, and by Mr Lang during the evidence by the witness who carried out the DNA testing. In fact, Mr Lang cross-examined Ms Williams at length. The Judge was under no obligation to provide assistance or advice to the appellant in circumstances in which the appellant was represented by competent legal practitioners. Furthermore, no evidence was put before this Court to suggest that the DNA evidence called by the prosecution might have been successfully challenged.Conclusion I reject all grounds of appeal and I would dismiss the appeal. I agree with the reasons of Besanko J and with his Honour’s findings of fact. I agree also that the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J,

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Actions

Citations

R v IAS [2004] SASC 240

Most Recent Citation

R v Heinicke [2005] SADC 113

Cases Citing This Decision

Tilley v The King [2023] SASCA 80
Citation 1

…ussed. Bunning v Cross (1978) 141 CLR 54; Edwards v The Queen (1993) 178 CLR 193; R v Bonython (1984) 38 SASR 45; R v Christie [1914] AC 545; R v IAS (2004) 89 SASR 159; R v Karger (2002) 83 SASR 134; R v Tomazos NSWCCA 6 August 1971; R v Singh [2019] SASCFC 51; Roberts v The Queen (2022) 365 FLR 367; Shepherd v The…
R v Warwick (No 69) [2019] NSWSC 1059
Citation 2

…92) 177 CLR 292 Frawley v R (1993) 69 A Crim R 208 R v Batiste (1994) 35 NSWLR 437 R v Grosser [2003] SASC 193 R v IAS [2004] SASC 240; 89 SASR 15 R v Osborne [2002] VSCA 156; 133 A Crim R 519 R v Small (1994) 33 NSWLR 575 R v Warwick (No 2) [2017] NSWSC 1225 R v Warwick (No.63) [2019] NSWSC 41 R v Warwick (N…
R v Pratten (No 16) [2015] NSWSC 1501
Citation 3 (Para 4)

…dings. Mr Lowe has provided the Court with authority, being the Full Court of the Supreme Court of South Australia in a judgment entitled Queen v IAS [2004] SASC 240, and reported in (2004) 89 SASR 159. At page 165 of the report, at [22] and [23], his Honour Justice Besanko, whose judgment constitutes the majority…
Philopos v R [2008] NSWCCA 66
Citation 4

…7 CLR 292 Frawley v R (1993) 69 A Crim R 208 Greer v R (1992) 62 A Crim R 442 McInnis v The Queen (1979) 143 CLR 575 R v IAS (2004) 146 A Crim R 416; [2004] SASC 240 R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23 R v Kaliti (2001) 34 MVR 160; [2001] NSWCCA 268 PARTIES: Raouf Maurice Philopos (Appellant) The Cro…
R v Pollitt [2007] SASC 103
Citation 5 (Para 26)

…e made strategic decisions about the manner of conduct of a trial. [35] [2002] SASC 53 at [47]-[50]; (2002) 81 SASR 359 at 367-9 per Martin J. [36] [2004] SASC 240 at [50]; (2004) 89 SASR 159 at 172 per Besanko J. [37] [2003] SASC 102 at [13]; (2003) 85 SASR 241 at 243-4 per Duggan J.…
R v Heinicke [2005] SADC 113
Citation 6

…N, PRACTICE AND PROCEDURE Dietrich v The Queen (1992) 177 CLR 292 at 315; R v Karounos (1994) 63 SASR 451 at 458-9; R v Grey (2001) SASC 428; R v IAS [2004] SASC 240; Begg v Police [2005] SASC 131; Bray v Police [2005] SASC 270, discussed.…

Cases Cited

Statutory Material Cited

R v Grosser No. Sccrm-02-217, Sccrm-02-388 [2003] SASC 264
Citation 1 (Para 22)

…o doing. It cannot be said that he is unrepresented through no fault of his own.” This decision was upheld on appeal ([2003] SASC 264).…
R v Osborne [2002] VSCA 156
Citation 2 (Para 20)

…In R v Osborne [2002] VSCA 156; (2002) 133 A Crim R 519, an accused terminated his counsel’s retainer during a trial and then applied unsuccessfully for an adjournment of the trial. The trial proceeded with the accused not represented by counsel. Chernov JA (with whom Phillips CJ and Vincent JA agreed) concluded t…
R v Karger [2002] SASC 294
Citation 3 (Para 1)

…accepted the DNA evidence beyond reasonable doubt they could have regard to other evidence in the case ( R v Smith (1998) 71 SASR 543; R v Karger [2002] SASC 294; (2002) 83 SASR 135). I think the Judge was making an obvious, and in one sense unnecessary point, that having accepted the DNA evidence, and in particul…
R v Grosser [2002] SASC 193
Citation 4 (Para 22)

…In R v Grosser [2002] SASC 193, Duggan J said (at [59] – [64]): “The question arises, therefore, as to whether a trial in which the applicant was unrepresented would be unfair and, as part of that enquiry, it is necessary to determine whether such lack of representation should be seen as being through no fault on…
Grey v The Queen [2001] HCA 65
Citation 5 (Para 6)

…ot under an obligation to provide the notes to the defence, and that concession appears to be correct ( R v K (1991) 161 LSJS 135; Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708). The fact that the notes were not provided did not play any part in the breakdown of the relationship between the appellant and M…
Wong v The Queen [2001] WASCA 32
Citation 6 (Para 19)

…time in preparation or are failing to take steps which are reasonably necessary.” (See also to the discussion of these cases in Wong v The Queen [2001] WASCA 32; (2001) 159 FLR 328 per Pidgeon J (with whom Kennedy and Murray JJ agreed) at 341 – 344.)…
R v Small [1998] QCA 380
Citation 7 (Para 15)

…een considered in a number of cases in New South Wales. The cases are R v Greer (1992) 62 A Crim R 442; R v Frawley (1993) 69 A Crim R 208; R v Small (1994) 33 NSWLR 575 and R v Batiste (1994) 35 NSWLR 437. I will not discuss the facts of those cases in detail.…
Craig v South Australia [1995] HCA 58
Citation 8 (Para 12)

…In Craig v South Australia (1995) 184 CLR 163, the High Court made some observations on the concept of fault on the part of the accused. After setting out part of the passage from the reasons for judgment of Mason CJ and McHugh J in Dietrich which I have set out above, the Court said (at 183 – 184): “The effect of th…
Dietrich v The Queen [1992] HCA 57
Citation 9 (Para 10)

…In Dietrich v The Queen (1992) 177 CLR 292 (“ Dietrich ”), the High Court considered the power of a court to stay a criminal trial for a serious offence where the accused is unrepresented. It is sufficient for present purposes to refer to two passages, one from the joint reasons for judgment of Mason CJ and McHugh J…
Shepherd v The Queen [1990] HCA 56
Citation 10 (Para 2)

…arty is bound by the conduct of counsel and that counsel have a wide discretion as to the manner in which the proceedings are conducted. In R v Birks (1990) 19 NSWLR 677 Gleeson CJ, as Chief Justice of New South Wales, said (at 685): “The relevant principles, may be summarised as follows: 1. A Court of Criminal Appeal…
McInnis v The Queen [1979] HCA 65
Citation 11 (Para 26)

…ge needed to weigh a number of considerations and there is no reason to think that he erred in the exercise of his discretion ( McInnis v The Queen (1979) 143 CLR 575 per Barwick CJ at 579). The challenge in ground 2 to the Judge’s decisions not to adjourn the trial must be rejected. Grounds 1 and 4…

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