R v Kennedy
[2017] SASCFC 170
•19 December 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KENNEDY
[2017] SASCFC 170
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
19 December 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - WHAT CONSTITUTES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
Application for permission to appeal against conviction for four counts of rape.
The appellant was convicted by a jury of four counts of rape. The appellant gave evidence, which included the concession that owing to his intoxication, he could not remember whether he raped the victim, but that it was “a possibility”, although he “wouldn’t have thought he would do something like that”.
The appellant asserts that a miscarriage of justice occurred as his trial counsel failed to advise him of his right to choose whether or not he gave evidence at trial. The appellant gave evidence on appeal to the effect that he did not wish to give evidence at trial, that he was not advised that he had a right to choose not to give evidence and that had he been aware of the existence of that choice, he would have not given evidence. His trial counsel also gave evidence on appeal and stated that he did advise the appellant of that choice, but he could not remember precisely what was said or when it was said. He had no notes of such advice and had no signed instructions from the appellant on the topic of the giving of evidence at trial.
The respondent contended that the Court should reject the appellant’s evidence on appeal; or alternatively find that, even if he was not advised of the choice, the omission did not amount to a miscarriage of justice.
Discussion regarding the necessity for legal practitioners to obtain signed instructions from defendants in criminal proceedings concerning the advice given and choice taken by the defendant as to whether or not to give evidence.
Held per curiam (Kourakis CJ, Peek & Nicholson JJ), granting permission to appeal and allowing the appeal:
(1) The Court accepts that Mr Cole honestly gave his evidence that he believes that somewhere, at some stage, he did address the giving of evidence choice. However, the Court cannot on Mr Cole’s evidence make a finding as to the particular words he used. In light of the vagueness of Mr Cole’s evidence, the Court is unable to reject the appellant’s evidence before it. The Court is satisfied that the appellant did not receive legal advice which effectively corrected his erroneous belief that he was obliged to give evidence at trial. The Court is satisfied that he did not receive advice on which he could make an informed choice on whether or not to give evidence.
(2) Trial counsel’s failure to advise the appellant of the existence of the choice to give or not to give evidence deprived the accused of a fair trial according to law and gave rise to a miscarriage of justice. It is not necessary to consider the extent to which counsel’s conduct might have affected the outcome of the trial because the present case falls within the class of cases referred to in Wilde v The Queen in which the proviso can have no application.
Evidence Act 1929 ss 18(1)(b), 353, referred to.
Wilde v The Queen (1988) 164 CLR 365, applied.
R v Birks (1990) 19 NSWLR 677; McMahon v The State of Western Australia [2010] WASCA 143; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen [2006] HCA 9; Simic v The Queen (1980) 144 CLR 319; Sankar v Trinidad [1995] 1 WLR 194; Nightingale v The Queen [2010] NZCA 473, discussed.
R v Allison (2003) 138 A Crim R 378; Colley v R [2015] WASCA 79; Evans v The Queen (2007) 235 CLR 521, considered.
R v KENNEDY
[2017] SASCFC 170Court of Criminal Appeal: Kourakis CJ, Peek and Nicholson JJ
THE COURT.
Introduction
The appellant was charged with rape.[1] He pleaded not guilty before a jury and gave evidence on oath, but was convicted of four counts of rape. He appeals against conviction on the basis of the following ground of appeal:
A miscarriage of justice was caused by defence counsel failing to advise the applicant on his right to remain silent or to give evidence at his trial.
[1] On 18 January 2016, the appellant was sentenced by Judge Davison to seven years imprisonment, with a non-parole period of three years and six months.
In expanded form, the appellant contends that a miscarriage of justice occurred due to the combination of three matters. First, the failure of defence counsel to advise him that he in fact had a choice between giving evidence and not giving evidence at trial. Second, his pre-existing (erroneous) belief that he was obliged to give evidence at trial. Third, the fact that, had the appellant been aware of that choice, he would have remained silent. (That choice to be made by a defendant will be referred to as the “giving of evidence choice”.)
The respondent contends that this Court should find (contrary to the appellant’s sworn evidence here) that the appellant was in fact advised that he did not have to give evidence, but decided that he would. Alternatively, the respondent contends that, even if the appellant was not advised of his right to remain silent at trial, this omission did not result in a miscarriage of justice because: the prosecution case was “relatively strong”; there were “powerful” reasons for the appellant to give evidence; and such an omission did not deprive the appellant of “a significant possibility of an acquittal”.
The Court is unable to reject the appellant’s evidence before this Court that: his lawyer did not advise him that he in fact had a choice between giving evidence and not giving evidence at trial; that he believed that he was obliged to give evidence at trial; and that, had he been aware of the existence of that choice, he would have remained silent. Accordingly, a miscarriage of justice has occurred because there has been a serious error concerning a central and highly important part of the trial process. There is no contention by the respondent that the proviso could or should be applied. We find that the convictions must be set aside and a new trial ordered. Our reasons follow.
The evidence at trial
The complainant, Ms K, was a neighbour of the appellant’s mother, Caroline, and sometimes looked after Caroline’s premises, and fed her dog, when she was away. As at 10 August 2014, Ms K knew that Caroline had a son, the appellant, but she had not met him.
On 10 August 2014, the appellant was staying at Caroline’s house and she asked Ms K to go there and give him a message to go to an open inspection Caroline was conducting, and to assist her there. Ms K did so and in fact drove the appellant to the open inspection. Ms K and the appellant remained at the open inspection for a short time, after which they left together and went to Ms K’s house. Later, Ms K drove the appellant back to the open inspection so that he could lock the premises.
The appellant later went to the ‘Aussie Inn’ with Ms K’s then partner, Mr Russell Macklin, where they drank together for several hours. Ms K later collected both the appellant and Mr Macklin from the Aussie Inn and returned with them to her house, describing the appellant as “incoherent” by this time, that is to say, highly intoxicated.
Ms K gave evidence that at about 7:00pm or 7:30pm, after becoming concerned that there might be an altercation between the appellant and Mr Macklin, she convinced the appellant to go with her to his mother’s house to feed the dog. She stated that while walking there, the appellant grabbed her bottom. She considered that to be “flirtatious behaviour” and she told him “not to do that”. She stated that once they arrived at his mother’s house, the appellant began kissing, groping and pulling her hair; that she was “pleading with him not to do it”; that he eventually forced her onto a bed, where he ripped her clothes and “knickers” off, and performed cunnilingus on the victim (count 1); digitally penetrated her vagina (count 2); inserted his penis into her vagina (count 3); and forced her to perform fellatio on him (count 4).
Ms K gave evidence that the appellant then rolled off of her and began to snore; and that she went home with a ripped top and no underwear. She stated that she complained immediately to Mr Macklin; and that they then went to the residence of her partner’s brother where Ms K complained to him.[2]
[2] The prosecution also led evidence of Ms K’s apparent distress at the time of complaint; of medical findings consistent with her version; DNA results showing the appellant’s DNA on the victim’s vagina, breasts and underpants; and evidence of her torn shirt and knickers being found in the bedroom.
In cross-examination of Ms K it was established that:
-Ms K drank some alcohol with the appellant when driving him to the open inspection;
-when Ms K and the appellant returned together to her home, Ms K told him that she and Mr Macklin were breaking up;
-the appellant responded by telling Ms K that he suspected that his partner was cheating on him;
-Ms K responded that “This is one of the reasons why I don’t like girls and find it easier to get along with guys”; and
-Ms K told Doctor Young, who examined her after the incident, that she had “pretended to enjoy it” so that he would not kill her (although he never threatened to kill her).
The appellant gave evidence-in-chief that he remembered:
-That he smacked Ms K on the bottom;
-that they kissed in the hallway;
-that he touched her breasts;
-that Ms K said “I don’t think we should do this. Think of your mum”;
-that he “slid his hand down and rubbed her downstairs”; and
-that he performed cunnilingus on her on the bed.
However, the appellant’s evidence was that he could not remember what occurred after the cunnilingus due to his high degree of intoxication. His evidence at trial is considered in more detail below.
The course of the appellate proceedings
The matter was first called on in the arraignments list on 15 August 2016. At this time, the notice of appeal was in quite a different form, with four grounds of appeal each asserting error relating to an apparent breach of s 18(1)(b) of the Evidence Act 1929 (the prohibition against the prosecutor referring to the accused’s right to remain silent). The Judge queried whether s 18(1)(b) had any application in cases where, as here, the accused did in fact give evidence and adjourned the matter to 5 September 2016, ordering that then counsel for the applicant, Mr Mattner, file new more precise grounds of appeal and that all affidavit material was to be filed and served by Friday 26 August 2016.
On 5 September 2016, the matter was again in the arraignments list. The appellant’s representatives had not filed the grounds of appeal and affidavit material by the due date, but had provided, just prior to the hearing, a document titled “Amended Grounds of Appeal” which still asserted an alleged breach of s 18(1)(b). Again the Judge queried whether this section had any application where the accused gave evidence and again adjourned the matter to the arraignment list on 4 October 2016, ordering all appellate material to be filed by the appellant by 29 September 2016.
On 4 October 2016, new counsel for the appellant appeared and informed the court that the proposed grounds of appeal had been reduced to one single ground (the ground currently before this Court). The matter was adjourned at the request of counsel.
The matter was next in the arraignments list on 24 October 2016. The court had still not received an affidavit from trial counsel and the matter was adjourned to 21 November 2016. On 21 November 2016, the application was yet again adjourned because there was still no affidavit material from trial counsel.
On 12 December 2016, the matter came before a single Judge for permission to appeal. His Honour referred the matter of permission to appeal on the single ground of appeal above to the Court of Criminal Appeal. The appeal came before the Court of Criminal Appeal in February 2017 but had to be adjourned because the appellant needed to obtain further evidence to establish the factual basis for the appeal.
On 30 March 2017, the appeal was heard and judgment was reserved.
Extension of time within which to appeal
The appellant applies for an extension of time on the basis that he was unable to contact his former solicitor, Mr Russell Cole; that he was unable to secure funding for an appeal; and that there was a further delay in his current solicitors obtaining the file due to a lien held over it by Mr Cole. This is supported by two affidavits of Mr E Matthews, dated 8 August 2016 and 17 August 2016. We grant the required extension of time.
The appellant’s evidence in this Court
The appellant swore an affidavit and gave oral evidence before this Court. By reference to both of those sources, a summary of his overall position is that:
-First, he had never been in a trial before and positively believed that the practice and requirement is that each side gives their version in evidence and the jury then decides.
-Second, he was never given any advice by Mr Cole that he had a choice as to whether he would, or would not, give evidence; their discussions related to the substance of the evidence that he could give and proceeded on an assumed basis that he would be giving evidence.
-Third, if Mr Cole did say something which was intended by Mr Cole to be directed to the existence of a choice, the appellant did not understand whatever was said to mean that he had a choice as to whether he would or would not give evidence.
-Fourth, if he had been advised that he had a choice as to whether he would or would not give evidence, he would have chosen not to do so for the various reasons that he gave.
Thus in his affidavit sworn on 22 September 2016, the appellant deposed:
19. I believed I had to give evidence to defend myself. I was never advised about my right to remain silent during the trial process, had I been advised of my right to remain silent I would have instructed Mr Cole that I did not wish to give evidence – this was due to the fact that I know I am not a good speaker and I get confused with legal words and phrases …
The appellant gave lengthy oral evidence before this Court. His evidence-in-chief included the following representative passages:
QWhen you came to court the first day, what did you understand the procedure would be in court?
AI just went off what I see on TV. I thought I’d get up and tell my side of it. That’s what I went off; what I’ve seen on TV.
…
QFrom watching television or any other program did you know you had a choice about giving evidence or not giving evidence in your trial?
A No.
Q You told us that was a topic that was not discussed?
ANo. The only thing he told me when I gave evidence was he said ‘Don’t say you blacked out, you can’t remember when you drink’, or something, that was the only advice me gave me, gave out.
QHow did that topic come up? Was that something you said or discussed with him before?
A No, it was just something he said.
PEEK J
Q When do you say it was that he said that?
A It was over the break, just before we went in.
EXAMINATION
Q Did you have any personal view about whether or not you wanted to give evidence?
A What do you mean?
QDid you have any idea in your head whether you wanted to talk to a jury or not talk to a jury?
A I’d rather not, but I just assumed you had to.
Q Did you ask Mr Cole about that?
A No.
QDid you sign any pieces of paper for Mr Cole in between the finish of the prosecution case and your giving evidence?
A Not that I can remember.
QIf you’d been given the choice of giving evidence or not giving evidence and knew you had that choice, what choice would you have made?
A Chose not to.
The cross-examination of the appellant in this Court
The “giving of evidence choice” is an important personal right to be exercised by reference to whatever subjective considerations that the defendant considers appropriate. Of course, the credibility of the appellant concerning his evidence on appeal is also an important matter; the truthfulness of his evidence that he had wished to not give evidence at trial “due to the fact that I know I am not a good speaker and I get confused with legal words and phrases” was a legitimate topic of cross-examination in this Court.
The respondent took the line in cross-examination that the appellant actually did want to give evidence, and hence the following passage:
QYou wanted to give evidence notwithstanding that you’d been advised by Mr Cole that you didn’t have to give evidence?
A Can you say that again, please?
QThat you wanted to give evidence in the trial, notwithstanding that you’d been told by Mr Cole that you didn’t have to give evidence?
AI didn’t want to. He never advised me not to. I got no case. It would be better if I didn’t anyway.
NICHOLSON J
Q Sorry, I don’t understand that.
ABecause I can’t remember a lot of things, of the charges. I just made it worse for myself anyway talking, that’s why I would rather have never spoken in the first place, because I’m not good talking.
We note that the appellant’s immediate response, in which he evinced difficulty with the form of the initial question above, appeared quite natural. While it is true that his later references to what in fact occurred at the trial when he gave evidence (“I just made it worse for myself anyway”) may be said to have been made with the benefit of hindsight, again the appellant’s responses did not appear to this Court as disingenuous or contrived; rather, they appeared to be no more than understandable assertions to the effect that he had always thought that giving evidence was a very bad thing for him because he was not a very good talker, and that the eventual giving of evidence only served to confirm the correctness of that view. (The evidence given by the appellant at trial is considered below.)
During cross-examination, the appellant was referred to a suggested difference in drafting of his affidavit in that at paragraph 18 he stated: “I was never advised about my right to remain silent during the trial process, had I been advised of my right to remain silent I would have instructed Mr Cole that I did not wish to give evidence …” whereas at paragraph 22 in the same affidavit he stated: “After the prosecution case… and during the break… I have no recollection of Mr Cole discussing the trial or my rights to not give evidence on my behalf.” The respondent submitted that the latter phraseology, in referring only to the appellant’s memory, allowed for the possibilities that Mr Cole had in fact given the relevant advice; and that the appellant at that time received and understood such advice; and that the appellant has since forgotten these matters.
We consider that, insofar as there is any difference, it is to be explained by insufficient care being taken by the solicitor drafting the affidavit. It must be remembered that whenever a person is asked whether he had been previously been told something, the strictly correct answer is usually to the effect that “I cannot remember ever having been told anything like that”. While some persons will feel justified in making a more emphatic statement to the effect that “I was never told anything like that”, on analysis such statements usually can only mean something like “I can say that I was never told anything like that because if I had been I would not have done ABC (giving reasons) and in fact I did do ABC”. In other words, the making of an emphatic statement “I was never told anything like that” usually depends upon an express or implied reference to further facts (such as a personal practice) coupled with an appeal to logic. These are difficult distinctions and are often blurred, or ignored, including by lawyers; and such a process did occur in the cross-examination of the appellant before this Court.[3]
[3] See generally R v Wills (1985) 39 SASR 35, 37; 41-43.
Counsel for the respondent also sought to contrast the course taken by the appellant in declining to speak with the police and his later course of giving evidence at trial. Thus in cross-examination appears the following passage:
Q Part of those arrest rights is you don’t have to answer questions?
A Yes.
Q Which you understood quite well was that you had a right to silence, didn’t you?
A Yes, with police.
Q And you say that that understanding didn’t translate to the courts?
AI just thought you had to give evidence in court in front of judges, it’s different to police.
NICHOLSON J
Q Why did you think that?
ABecause it’s more severe. The police I knew you don’t have to talk to, it’s on every TV show and movie you didn’t have to speak police.
Q Why did you think you have to give evidence in court?
A Because you need to get both sides of the story.
Of course, much will always depend on how the person gives his evidence. In our view, the appellant gave this evidence in a natural and straightforward fashion. His explanation of a perceived distinction between talking to police and giving evidence in court did not seem to be disingenuous; and it is not implausible that a person might wrongly hold that view for the reasons given by the appellant.
In general, the cross-examination here really did not get beyond a confrontational process in which the appellant consistently maintained his position. Examples include:
QWhat I’m suggesting is that prior to the trial Mr Cole had advised you that you didn’t have to give evidence?
A No.
Q And you don’t agree with that?
A No.
Q But further than that it was discussed that you would give evidence?
A Yes, I gave evidence.
Q Well you’ve said on numerous occasions that that wasn’t discussed with you?
A It wasn’t, I just assumed I had to.
Q You just said that, yes it was?
A Yes, what was? I just assumed I had to. He didn’t tell me that I had a choice.
QI’m suggesting that he told you you didn’t have to give evidence and that you then discussed that you would give evidence. Do you agree with that or not?
ANo.
Passages such as this serve to illustrate the need for exactness and specificity in cross-examination. The appellant’s position was that the topic of his giving of evidence was discussed at length with Mr Cole in the sense that the content of that evidence was discussed at length, but the actual giving of evidence was assumed (at least by the appellant). The above passage somewhat descends to argument with the witness. Of course, we accept that the questions were not meant to be unfair, but they were not sufficiently exact or specific.
Finally, it was suggested to the appellant that he was aware of the available choice and had decided to give evidence because that was the only way to get his version before the jury:
QThe reason for that, can I suggest, is without you giving evidence your story that you couldn’t recall what happened in the bedroom and that you’re not the type of person who would rape someone would not have got before the jury?
NICHOLSON J: It is not an entirely fair question. It involves two components, one of which the Chief Justice has explored as a matter of fact as to how memories get before the jury. The other component, there are other ways in which that information can get before the jury.
MR PETRACCARO: I’ll rephrase it.
KOURAKIS CJ: There is really a third problem and your question didn’t identify whether this explanation for giving evidence was something that was said by someone at the time, or whether it is supposed to be an analysis in his own mind of why he gave his instruction which he has now denied on a number of occasions. Finally, it is probably a submission.
MR PETRACCARO: I understand it comes to submissions, but I’ve got to put it to the witness.
CROSS-EXAMINATION
QCan I put it this way: when you gave evidence in this matter, your evidence was that you couldn’t recall what occurred in the bedroom, yes -
A Yes.
Q - or no. And that you are not the type of person who would rape someone?
A Yes.
Q That was always your instructions to Mr Cole?
A Yes.
Q That was the reason why you always wanted to give evidence in this trial?
A I never wanted to give it, I just assumed I had to.
The above passage both elucidates some of the problems with the cross-examination and highlights the fact that, on correct analysis, the appellant remained unshaken.
Mr Cole’s evidence in this Court
Mr Cole’s first affidavit (sworn 8 December 2016) provided very little specificity as to any particular occasion when Mr Cole did give the required advice concerning the choice to give or not give evidence. The affidavit included the following passages:
13. …The appellant had already been advised by me as to his right to not give evidence at his trial and also his right to give evidence. We had discussed this on a number of occasions leading up to his trial and his instructions had always been that he would give evidence concerning the incident before the jury.
…
18. … I did not have the appellant sign any instructions as the appellant was well aware of his right to remain silent and not give evidence or to give sworn evidence. Leading up to the trial the appellant had always instructed that he was going to give evidence in his defence namely that notwithstanding his lack of memory of the incident it was certainly contrary to his character and he would not have acted in the manner described by the complainant even in a heavily intoxicated condition.
19. … I again repeat that the giving of evidence or remaining silent had been discussed in great detail leading up to the trial and it was always the appellant’s instructions that he would give evidence.
…
22. … It had been agreed leading up to the trial that the appellant was going to give evidence. That issue had been discussed many times.
Mr Cole’s second affidavit was sworn on 23 February 2017 and was limited to annexing file notes and other written documents contained in his file.
Mr Cole’s oral evidence before this Court
In a lengthy passage of examination-in-chief, Mr Cole detailed the circumstances under which he took instructions from the appellant concerning the facts of the case. There then occurred the following passage:
QWere there any discussions in that meeting or subsequent about the course of the trial and the procedures of the trial?
AI know that - from memory I went - touched on his instructions he had given me and, bearing in mind the trial was coming up, whether or not he could give me any further instructions. He just couldn’t, so I would have canvassed briefly what he had already told me from that lengthy interview back in April, whether he could add anything further, but that was a matter of a blank.
QWere there any discussions about whether your client would give evidence in the trial?
AYes. I remember when Mr Kennedy came in to see me, I didn’t discuss the matter then because I hadn’t read the declarations, but after I read the declarations and I had meetings with him I can recall speaking with Mr Kennedy saying ‘How are we going to run this trial, bearing in mind you can’t remember much in detail? You can remember a few little things, but not much in detail’, and ‘Are you going to give evidence and, if you are, what are you going to say?’, or ‘You don’t have to give evidence, but how are we going to run this trial?’ I remember having those conversations. (Emphasis added)
We note that Mr Cole, in the emboldened passage above, is very vague concerning what precisely was said on the topic of the appellant’s giving of evidence choice. In this regard, the following exchange is emblematic of the lack of specificity on Mr Cole’s part:
KOURAKIS CJ
Q You remember having those conversations?
A Yes.
Q On how many occasions?
A. I can’t answer that.
Q When was the first?
AProbably before the long interview that I had with him. A few days before when he came in with his mother. His position was always he was going to plead not guilty, then I said to him the obvious, ‘Well, how do you intend to defend this matter, bearing in mind you can’t remember what happened, and what memories you do have are fairly scant and fairly brief?’ and ‘If you’re going to give evidence in court' – ‘Are you going to? You don’t have to. Is that what we’re going to do?’ And he kept maintaining that he would never act in that way, that it’s totally out of character with him, and I can remember him saying on more than one occasion that ‘When I get to the point of being so drunk and I get a bit amorous’ - I don’t think he used that word – ‘my partner would simply push me away and that would be the end of it’ and that was virtually his defence.
EXAMINATION
QYou said earlier in your answer that you recall telling him that he didn’t have to give evidence?
A Yes.
Q You have a recollection of that?
A Yes. Yes, I did.
Q Can you say how many times you told him that?
AIt all went quiet from the last time I took detailed instructions in April. There was a period where he wasn’t making any contact until late December, bearing in mind at that time I was acting for his mother in another matter and she accompanied him on a previous occasion, so I may – I’d say I probably didn’t in December, but when we had the view and I took those further instructions shortly before the trial, I can’t remember saying it to him, but I would have said something about ‘Well, how are we going to conduct this trial?’ I tried to include him in it. It’s always my practice at the beginning of a trial to say to a client, and I’m 100% sure I said this to Mr Kennedy, ‘The Crown will lead their evidence, you’ll plead not guilty’ – ‘This is how it starts: the charge will be read, you will plead not guilty, then the Crown will lead their evidence and up to then you don’t have to say anything, I cross-examine, but at the conclusion of the Crown case you have an option of giving evidence or not giving evidence, it’s a matter for you, and we’ll discuss that at the end of the Crown case’.
KOURAKIS CJ
Q ‘We will discuss that at the end of the Crown case.’?
AYes. Although at that time his instructions were he was going to give evidence. But I just pointed out to him how it works.
Q When did he give that instruction?
AHe would have told me that back on 19 April when I took full instructions from him.
Q He would have told you that?
AI didn’t make a note of it so I can’t say but I can remember distinctly talking to him about it.
QTell us about that conversation in the long interview in April 2015. When in the course of the interview - look at your notes if you like.
A I don’t think I made a note of it.
Q You may not have about that but you have notes of the instructions you took?
A Yes.
QWas it at some particular point in the course of the instructions about the event that you had a discussion about whether he would give evidence or not? Was it right at the beginning, right at the end?
AI can’t answer that, I don’t know. Probably at the end. But that’s probably - I know that we had - when I was taking his instructions - I can remember saying to him ‘That’s not particularly helpful. You can’t remember this but you remember this’ and whatever.
Q What has that got to do with whether he was going to give (evidence) or not?
A I basically said ‘If you gave evidence what are you going to say?’
Q What did he say to that?
AHe was saying he can remember certain things, that she was consenting at certain points and that he never acted in that manner. I think at one stage he was talking about wanting me to call his partner to give evidence about how he behaves when he was drunk. We had conversations like that. But as to when they occurred I can’t answer that.
Q When he told you that he wanted to give evidence what words did he use?
ANo, he didn’t just say to me ‘I want to give evidence’. I said to him, and this is always my practice, ‘You can give evidence in your own defence or you don’t have to give evidence. If you do you get into the witness box, you take an oath or an affirmation and you are cross-examined by the DPP and the judge can ask you some questions’.
QIs that what you said at some point in the long interview in April 2015?
AI can’t say it was in the long interview but I did say that to him at some stage but I can’t say at what stage.
Factual findings
We find the appellant to have been credible in his evidence before this Court.
With regard to Mr Cole, we are troubled by the fact that he did not, in any file note or other record concerning his attendances upon, and conferences with, the appellant, ever refer to giving any advice concerning the giving of evidence choice. There are no written instructions from the appellant concerning the giving of evidence choice and Mr Cole never asked the appellant to sign any document confirming that he had received advice on this topic.
This Court is well aware that it has been the practice of experienced solicitors and counsel for many years to obtain signed instructions from clients to indicate that they had been advised on the giving of evidence choice and to record their choice in writing.[4] Statements such as that in Halsbury’s Laws of Australia concerning duties specific to criminal defence lawyers are very well known: “Written instructions from the client prove invaluable to guard against clients who allege that they have not been informed of their options.”[5]
[4] When the option of an unsworn statement was available the recorded choice was as between all three options.
[5] Lexis Nexis, Halsbury’s Laws of Australia (at 24 August 2015), 250 Legal Practitioners, ‘Duties specific to criminal defence lawyers’ [250-5235].
Similar statements abound. Thus in Lawyers’ Professional Responsibility, Dal Pont wrote:[6]
It is prudent, especially where the client may have difficulty in deciding on a plea or on whether to give evidence, for the lawyer to take written instructions. Erroneous advice by defence counsel as to the effect of a guilty plea may provide grounds for an appeal for a miscarriage of justice, although this is unlikely to succeed if the evidence shows that the decision to plead guilty was freely and voluntarily made, and that the erroneous advice was no more than one contributing factor amongst others in making that decision, especially where the case against the client is overwhelming. [footnotes omitted]
[6] (Thomson Reuters, 5th ed, 2013) 609 [18.135].
Similarly, in the loose leaf, Solicitors Manual it is stated:[7]
In conducting the retainer the lawyer should maintain proper records of instructions and advice given, including dates and sufficient detail for those records to be relied upon if necessary. This is the “audit trail”. It may also be appropriate to supply the client with a copy of the instructions in question, to keep fresh in the client’s mind the nature and progress of the current representation. Statistics reveal that a not insignificant proportion of claims against solicitors that are met by the insurer are claims where the solicitor protests his or her innocence but is unable to prove it through lack of file notes or confirming letters on critical issues. [footnotes omitted]
[7] Dal Pont, Lexis Nexis Butterworths, 15,161, [2080].
These are hardly novel ideas. The practice of obtaining signed instructions has constantly been regarded as the “usual precaution” in various aspects of criminal proceedings.[8] In R v Allison, McMurdo P observed:[9]
All experienced practitioners in the criminal law recognise the wisdom of ensuring instructions, changes in instructions and especially instructions as to the plea are in writing and witnessed to avoid subsequent costly and distressing investigations such as those undertaken here.
[8] (2012) 224 A Crim R 160 [34] (Fraser JA, with whom White JJA and Daubney J agreed). See also R v Pugh (2005) 158 A Crim R 302. See also, for example, the Legal Services Commission of South Australia’s Duty Solicitor Handbook chapter entitled “Guilty Pleas”; “Criminal Law: Solicitor’s Manual”, Legal Aid New South Wales, 2006.
[9] (2003) 138 A Crim R 378, [2].
In Colley v R, Martin CJ stated:[10]
As Mr Dobson now accepts, appropriate standards of professional conduct required him to take a clear record of Mr Colley’s instructions as to the facts, and it would have been highly desirable for him to have secured written instructions from Mr Colley to the effect that Mr Colley elected not to give evidence.
[10] [2015] WASCA 79, [14] (McLure P and Mazza JA substantially agreed).
And McLure P (with whom Mazza JA agreed) stated:[11]
In particular, at the hearing Mr Dobson identified documents comprising the entire written record relating to his preparation for and conduct of the appellant’s trial (ts 72 - 73). They are a few sheets of handwritten notes. There was no signed proof of evidence of the appellant, no contemporaneous notes relating to the matters in issue in the appeal and no written instructions from the appellant concerning his election not to give evidence at trial. Such omissions are to be deplored. However, this is not a professional conduct hearing. (Emphasis added)
[11] Ibid, [66].
Further, we are also troubled by the lack of specificity with which Mr Cole could recount his advice to the appellant. As just one example, if what was said by Mr Cole in the emboldened passage above at paragraph [36] was either of the two alternatives separated by the disjunctive (‘Are you going to give evidence and, if you are, what are you going to say?’, or ‘You don’t have to give evidence, but how are we going to run this trial?’), it could equally have been in the form of a third or fourth alternative, as far as Mr Cole could say.
We accept that Mr Cole honestly gave his evidence and that he believes that somewhere, at some stage, he did address the giving of evidence choice. However, we cannot on Mr Cole’s evidence make a finding as to the particular words he used. In light of the vagueness of Mr Cole’s evidence, we are unable to reject the appellant’s evidence in this Court. We are satisfied that the appellant did not receive legal advice which effectively corrected his erroneous belief that he was obliged to give evidence at a trial. We are satisfied that he did not receive advice on which he could make an informed choice on whether or not to give evidence.
Consideration of the evidence given by the appellant at trial
Both in its closing address at trial, and on this appeal, the prosecution made much of the cross-examination of the appellant at trial. For example, as to the events at the complainant’s home, the prosecution outline of argument states:
9. … The appellant remembers they kissed in the hallway of the house, he touched her breast and “he slid his hand down and rubbed her downstairs”. He remembers going down on the victim when she was on the bed. After that he cannot remember what occurred. In cross-examination the appellant conceded that the victim’s version of events as to being raped was “a possibility” but he “wouldn’t have thought that he would do something like that”.
10. In many ways, the victim’s version of events once she and the appellant were in the bedroom, was therefore uncontracted as the appellant expressed no recollection of what occurred after the initial kissing, movement of his hand to the front of the victim’s pants and “going down on her” (on his version of events). [Emphasis in original]
In his cross-examination at trial, the appellant’s position was that, since he could not remember, Ms K’s version of events was “a possibility”, to which he added that he “wouldn’t have thought he would do something like that”. However, as the cross-examination went on, he did not repeat that observation but simply conceded that the various damaging propositions put by the prosecution were possibilities, with the final question and answer in cross-examination being:
Q You just don’t know whether you raped her or not?
A No, I don’t recall.
Of course, this was not in law an admission, and the burden remained on the prosecution to prove the elements of rape. However, the effect of such unadorned answers on the jury was likely to have been considerable.
Since the appellant took the consistent stance that he could not “fill in” the gaps in his memory, a serious disadvantageous consequence of his giving evidence was that it enabled the prosecutor to make a series of mini jury addresses during cross-examination by either putting specific assertions to which the appellant inevitably replied that he could not remember, or by putting general “motherhood” style propositions with which everyone feels constrained to agree. The following passage provides an example:
Q Well, you were angry with your own girlfriend, weren’t you?
A Yes.
Q Were you in a mood that evening where you were hating women generally?
A No, not that I recall.
Q Did you take your anger out on Tamara?
A No, not that I recall.
QWhat about her allegation that almost all of your hand went into her vagina; what do you say about that?
A I don’t recall.
Q Does that sound like anger to you, that sort of sexual act?
A Yes.
Q Does it sound like disrespect?
A Yes.
Q It doesn’t sound like a loving, fun thing to do with someone, does it?
A No.
QIt doesn’t sound like something that would be sexually exciting for a woman, does it?
A No.
Q And you’ve heard the evidence that there was an abrasion and a cut in her vagina?
A Yes.
Q That was there because you forced yourself on Tamara, wasn’t it?
A It could have been, I don’t recall.
QDo you think the dog might have been agitated because Tamara was yelling out at you to ‘Stop it’, and ‘No’?
A Yeah; it would have, yes.
Q So that’s one reason why the dog could have been agitated?
A Do you mean when it barked when the police came?
QNo, when you were inside the bedroom with Tamara, if she was yelling out ‘Stop it’ or ‘No’ that would have caused the dog to carry on wouldn’t it?
A Yes.
Q Is the dog protective of women?
A Yes.
QThat’s what was happening, the dog was trying to scratch its way into the bedroom because it could hear Tamara yelling out ‘Stop it’ and ‘No’?
NOT ANSWERED
Q You need to answer.
A It could have been, yes. It could have been from just general sex sounds.
Another passage of similar cross-examination is the following:
Q But from your point of view you can only remember performing oral sex can’t you?
A Yes.
QSo, from your point of view, anything could have happened in that bedroom and you just don’t remember it?
A Yes.
Q So you don’t know if you forced part of your hand into her vagina, do you?
A No.
Q You don’t know if you forced your penis into her mouth?
A No.
Q And you don’t know if you forced your penis into her vagina?
A No.
Q But you say she just can’t be right?
A She has no possibility to be right.
Q Well, the injuries show more than a possibility don’t they, Mr Kennedy?
A The doctor even said that those bruises can be from anything.
QThey could be but what about the bruises inside of her legs. How do you think they got there?
A I don’t know.
Q It was from you pushing her legs open so that you could rape her wasn’t it?
A It could be, I don’t know.
Q So is it your evidence that you could have raped her but you don’t know?
A It’s a possibility, yes, but I wouldn’t have thought I would do something like that.
There are various other examples of the disadvantages attendant upon the giving of evidence by the appellant. Two examples will suffice. The first is the following passage:
QThen you started forcing yourself on [Ms K] by kissing her and touching her breasts, didn’t you?
A Yes.
Q She told you she didn’t want that?
A She said ‘I don’t think we should do this. Think of your mum’.
The problem with each of these two questions is that there is more than one topic for the defendant to address. In the first question, the first topic is a general assertion of “forcing” himself on Ms K and the second topic is kissing her and touching her breasts; in answering “yes”, the appellant may well have been only addressing the second topic of kissing her and touching her breasts.
Within the second question there are again two topics. The first topic relates back to the suggestion of “forcing yourself” on Ms K and the second topic is kissing her and touching her breasts. Again, the two topics are jumbled up and in saying “yes”, the appellant may well have been only addressing the second topic of kissing her and touching her breasts rather than “forcing himself” on her.
Another similar example occurs a few questions later as follows:
Q You dragged her into that room, didn’t you?
A I don’t recall that.
Q You dragged her in there so you could rape her, didn’t you?
A I don’t recall. I wish I could remember more.
Here the first question initially focussed the attention of the defendant on a specific suggestion of dragging Ms K into a room and the appellant answers that he has no memory of doing so. The second question then puts a composite assertion of “dragging her in there so you could rape her” and the appellant’s answer to this second question of being unable to remember may well generate a reaction by the jury to the effect that an innocent person would deny rape in an unqualified manner. But the juxtaposition of the two questions, coupled with the inherently duplicitous nature of the second question, produces the situation that the answer to the second question may be nothing more than a reiteration of the denial to the first question.
And so the cross-examination proceeded until the final question and answer reproduced above:
Q You just don’t know whether you raped her or not?
A No, I don’t recall.
Is a miscarriage of justice within s 353(1) Criminal Law Consolidation Act 1935 established?
The central question on this appeal is whether a miscarriage of justice within s 353(1) Criminal Law Consolidation Act 1935 is established.
In a passage in R v Birks,[12] which is as helpful now as it was in 1990, Gleeson CJ recognised and discussed the tension that exists between two principles. The first is the general rule that a party is bound by the conduct of their counsel who have a wide discretion as to the manner in which proceedings are conducted. The second is the great breadth of the jurisdiction of an Australian Court of Criminal Appeal to set aside a conviction on the basis of “miscarriage of justice”. Thus his Honour (with whom McInerney J concurred) stated:[13]
In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information.
As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case. …
There is an evident tension between those principles, on the one hand, and on the other hand, the power and duty of a Court of Criminal Appeal to correct a miscarriage of justice. It would be wrong, however, simply to regard these as two competing considerations which must from time to time yield to some compromise. The principles as to the role of counsel, and the capacity of counsel to bind the client, are fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice.
It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious. …
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. (Emphasis added)
[12] (1990) 19 NSWLR 677 (Gleeson CJ, McInerney J and Lusher AJ).
[13] (1990) 19 NSWLR 677, 683-685.
The special status of the giving of evidence choice
We consider that there is an important distinction between two classes of cases to which the above principles in Birks may be applied. The first, and much more common, class is that of a defendant complaining about inadequate legal representation in court or inadequate legal advice, such as how to make a choice between available options. As to this first type of case, matters concerning forensic choices by lawyers and forensic advantages and disadvantages will be of importance in this area. There are many authoritative discussions of how such complaints on appeal are to be resolved.[14]
[14] High Court and South Australian decisions, in chronological order, include: R v Birks (1990) 19 NSWLR 677; R v Oliverio (1993) 61 SASR 354; R v Scott (1996) 131 FLR 137; R v Kyriacou [2000] SASC 312; TKWJ v The Queen (2002) 212 CLR 124; Ali v The Queen (2005) 214 ALR 1; Nudd v The Queen (2006) 80 ALJR 614.
However, the second, and much less common, class of case, is that of a defendant complaining about not having received any advice from his lawyer informing him of the very existence of a choice between options (or of positively erroneous advice in that regard). This second type of case generally has the potential to give rise to a much greater risk of miscarriage of justice in that the lack of an informed choice by a defendant concerning an important matter may well not be excused by reference to forensic choices by legal representatives.
It is within this second class that one encounters the present case – that of a failure to advise a defendant concerning the existence of a choice between giving evidence and not giving evidence. It is to be emphasised that this is very often the most central and important choice to be made in a criminal trial. We consider that there is an important distinction between errors in a forensic decision(s) made by counsel concerning a host of trial matters, on the one hand, and failing to advise (or wrongly advising) as to the very existence of such an important central matter as the giving of evidence choice, on the other hand.
There is now considerable authority to the effect that, in the latter context, it may be held that such conduct of counsel deprives the accused of a fair trial according to law such as to give rise to a miscarriage of justice without regard to whether counsel’s conduct might have affected the outcome of the trial. Thus in McMahon v The State of Western Australia, McLure P (with whom Buss and Maza JJA agreed) observed:[15]
In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel’s conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] – [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen (2005) 224 CLR 300 [46]; Wilde v The Queen (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17]. (Emphasis added)
[15] [2010] WASCA 143, [25]. In similar vein, Thomas JA (with whom De Jersey CJ and Davies JA agreed) observed in R v Szabo [2001] 2 Qd R 214, 219: “The election to give or call evidence is an important matter in any criminal trial. It is recognised as a decision on which a client is entitled to make the final decision: Sankar v Trinidad [1995] 1 WLR 194; McLoughlin [1985] 1 NZLR 106, 107. This is in contrast to many other matters involved in a trial including decisions which may generally be described as tactical decisions where counsel has the authority to act without the need for consultation with the client.”
With respect, we agree with that analysis. We will briefly refer, in chronological order, to three of the cases there mentioned: Wilde v The Queen;[16] TKWJ v The Queen[17] and Nudd v The Queen.[18]
[16] (1988) 164 CLR 365.
[17] (2002) 212 CLR 124.
[18] (2006) 80 ALJR 614.
Wilde v The Queen did not involve the matter of poor legal advice; it was concerned with the broad question of whether there are some types of error to which the common form proviso will not apply, despite an assessment that a conviction on a proper trial would have been inevitable. Thus, Brennan, Dawson and Toohey JJ considered that:[19]
It is one thing to apply the proviso to prevent the administration of the criminal law from being “plunged into outworn technicality” (the phrase of Barwick C.l. in Driscoll v The Queen); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg v Hildebrandt; Reg v Henderson; Reg v Couper.
There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo. They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial… [Footnotes omitted]
[19] (1988) 164 CLR 365, 373. (Deane J substantially agreed).
Since the case of Wilde, as Gummow and Hayne JJ observed in 2010 in Evans v The Queen,[20] the High Court “has not since authoritatively decided what kind of departures from essential requirements may be said to go to “the root of the proceedings”.” Their Honours held that it was unnecessary to do so in Evans.
[20] (2007) 235 CLR 521, 533.
The second of the three cases referred to by McLure P in McMahon was that of TKWJ v The Queen.[21] TKWJ did involve a question of poor legal representation, but it was a case that was disposed of by the application of conventional principles. However, McHugh J speaking more broadly, considered the case of Simic v The Queen[22] and concluded:[23]
Thus, Simic holds that, in most cases of misdirection on facts, the appellant has the onus of establishing a misdirection, that it might have affected the verdict and that, if it had not been made, the jury might have acquitted the appellant. In some undefined categories of cases, however, the irregularity may be so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict.
(Emphasis added)
[21] (2002) 212 CLR 124.
[22] (1980) 144 CLR 319, 332.
[23] Ibid, 147.
In this context, his Honour turned to the topic of “miscarriage of justice by reason of counsel’s conduct” and stated:[24]
But how does a court of criminal appeal determine whether counsel’s conduct of the trial has led to a miscarriage of justice? By what standards is counsel’s conduct judged? And, if counsel has failed to present the case properly, must the appellant show that the conduct possibly affected the verdict? The unattractive answer to the latter question must be that it depends on what counsel did or did not do.
In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel’s conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.[25]
[24] Ibid, 148.
[25] McHugh J here cites Wilde v the Queen (1988) 164 CLR 365.
The third of the cases referred to by McLure P is Nudd v The Queen (and particularly the judgment of Gleeson CJ). In Nudd, the appellant’s counsel had acted incompetently concerning matters not involving the central giving of evidence choice. In the circumstances, the court held that there was no miscarriage of justice because the appellant had not been deprived of the chance of an acquittal. However, Gleeson CJ, speaking beyond the facts in Nudd, referred to the judgment of Barwick CJ in Ratten v The Queen[26] and later stated:[27]
[6] … The concluding sentence in the passage from the judgment of Barwick CJ in Ratten adopted a formula sometimes used to explain the practical effect of the proviso. What is significant for present purposes is the qualified manner in which Barwick CJ expressed himself. Some irregularities “may” involve no miscarriage of justice if the appellate court forms a certain opinion about the strength of the case against the appellant. The corollary of that proposition is that a defect in process may be of such a nature that its effect cannot be overcome by pointing to the strength of the prosecution case. It is impossible to state exhaustively, or to define categorically, the circumstances in which such a defect will occur. … If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed.
[7] The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial.
[8] Where it is claimed that a miscarriage of justice of the second kind referred to in Davies and Cody and Ratten has occurred, the appellate court is primarily concerned with what happened at, or in relation to, the trial of the appellant; an investigation of why it happened is ordinarily irrelevant, and often impractical. It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions. Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred. (Emphasis added)
[26] (1974) 131 CLR 510, 516.
[27] (2006) 80 ALJR 614, 617-618.
After considering at length the tension between these principles and the “cardinal principle” by which parties are bound by the wide discretion exercised by counsel, Gleeson CJ observed:
[15] Because of the impossibility of predicting every form of misfortune or error that may result in a miscarriage of justice; because there are cases where an understanding of why something happened, or did not happen, may be material to a conclusion as to whether there was unfairness; and because such an understanding may reveal that there is no explanation for what occurred other than counsel’s ineptitude or inexperience, courts of criminal appeal do not overlook the possibility that the conduct of counsel may result in such a failure of process that there is a miscarriage.
…
[17] There will be some cases in which it is not possible to decide whether injustice has occurred without knowing why a particular course was taken at trial. To take an extreme example, if an accused person failed to give evidence because counsel wrongly advised that an accused is not entitled to give evidence, it is difficult to imagine that a court of criminal appeal would not intervene. The example shows that, although, as a general rule, the test of whether a forensic decision has resulted in an unfair trial is objective, one cannot eliminate the possibility of exceptional cases in which it is relevant to know why a certain course was or was not taken.
(Emphasis added)
With respect, the example here chosen by Gleeson CJ is apt because, as noted above, the giving of evidence choice is in many, if not most, cases the most important choice to be made in a criminal trial.
We do not intend to refer to other authorities concerning this matter, except to make two further brief comments. First, in Sankar v Trinidad,[28] an oft cited decision of the Privy Council, the appellant while in the dock in court had been told by his counsel, just before the close of the prosecution case, that he would not be giving evidence in circumstances where he had wished to do so. The Privy Council allowed the appeal, finding that the defendant:[29]
was placed in a position as a result of which he did not give evidence or make a statement from the dock without his having received advice and without his being given any explanation as to what were the alternative courses which were open to him. … The defendant had been denied in reality of deciding whether or not he should give evidence or at least make a statement from the dock.
[28] [1995] 1 WLR 194, 199.
[29] [1995] 1 WLR 194, 199. The Privy Council approved the New Zealand decision of R vMcLoughlin [1985] 1 NZLR 106 referred to below.
Second, there are a number of New Zealand authorities[30] which have emphasised the unique importance of the giving of evidence choice. Thus in the relatively recent decision in Nightingale v The Queen, the Court of Appeal observed:[31]
Where counsel acts so as to deprive an accused of the choice of whether to give evidence an appellate Court is highly likely to find that there has been a miscarriage of justice.
[30] See: R vMcLoughlin [1985] 1 NZLR 106; R v Le [2000] NZCA 199; R v K [2008] NZCA 3; and Nightingale v The Queen [2010] NZCA 473.
[31] [2010] NZCA 473, [12].
Consideration
There can be little doubt that Gleeson CJ in Nudd[32] expresses the view that, whenever and however the precise parameters of the Wilde v The Queen principle may eventually be defined, an extreme example of the type postulated by his Honour in Nudd will fall within such parameters.
[32] (2006) 80 ALJR 614, 620-621 [17] (Gleeson CJ).
In the present case, this Court is faced with an extreme factual situation rather than just an illustrative example. The present situation differs from the example given by Gleeson CJ only in that counsel’s error here was in failing to give advice relating to the giving of evidence choice rather than giving positively erroneous advice. We consider those two situations to be indistinguishable in the present context. Counsel’s error in both situations goes directly to the central giving of evidence choice and brings about a trial wherein the accused takes a course which he did not wish to take and which, if correctly advised, he would not have taken.
But even more importantly, the authorities reviewed above emphasise that such a matter is not to be resolved by reference to the degree to which legal advice is negligent or erroneous; rather, the focus is on what actually occurred at trial. Thus in Nudd, the point of Gleeson’s example is not that the defendant did not give evidence but rather that the defendant made a “choice” contrary to his wishes because of an outside influence; reference to the solicitor’s erroneous advice is only made so as to explain how and why the “choice” contrary to his wishes came about. So in the present case, the focus must be on what actually occurred at trial. Here, the defendant made a “choice” to give evidence contrary to his wishes because of an outside influence; again, reference to counsel’s erroneous failure to advise is only made to explain how and why the “choice” contrary to his wishes came about.
We conclude that the appellant has established a miscarriage of justice.
The proviso cannot apply
We consider that the proviso cannot apply for two reasons.
First, an analysis of the cross-examination of the appellant at trial confirms the appellant’s view that “due to the fact that I know I am not a good speaker and I get confused with legal words and phrases” the appellant was disadvantaged by not having been properly advised concerning the giving of evidence choice and being able to opt for the choice he preferred. This was not a hypothetical matter; there were clear disadvantages arising from the appellant being cross-examined as referred to above. Given that the central giving of evidence choice is here involved, and for the reasons given above, we consider that it is not necessary to go further and make an assessment as to the likelihood of an acquittal if the appellant had not given evidence.
Second, the prosecution is in any event precluded from receiving the benefit of an application of the proviso here because prosecution counsel never suggested that the proviso should be applied and the appellant has not made any submission on the matter. In the respondent’s written outline of argument, the contention is clearly and simply that the appellant has not established “a miscarriage of justice” (directed to s 353(1) Criminal Law Consolidation Act 1935); there is no contention that if a miscarriage of justice is established by the appellant, the appeal should nevertheless be dismissed because it is established by the prosecution that there is no substantial miscarriage of justice and that “the proviso” should be applied. That position was confirmed in oral argument thus:
MR PETRACACCARO: I accept that an accused has a right to silence and the point I am trying to make is what's being said here is if one accepts he wasn’t given that advice, then that comes down to an issue of incompetent counsel.
KOURAKIS CJ: I’m not sure it does. … What if, at the end of the prosecution case, the accused gets up and says ‘I would like to tell my side of the story, I would like to give evidence’, and the judge allows the accused to go into the witness box without informing the accused of the right not to give evidence? That has nothing to do with incompetence of counsel, but if a judge allows an accused to give evidence without informing the accused of his or her right not to give evidence, what’s the position there, assuming something unhelpful is said by the accused in evidence?
MR PETRACCARO: The cases of Birks, Nudd, Kyriacou, also you have to look at the circumstances of the case. In a case like that where you have an unrepresented accused, then an appeal court would probably quite readily say there has been a miscarriage of justice.
KOURAKIS CJ: Why? What would be the reason for that, other than the reason I put earlier: simply it is a miscarriage if an accused has a common law trial ignorant of his or her right not to give evidence?
MR PETRACCARO: The distinguishing feature is when someone is represented, one has to look at the conduct of counsel and then looks at the case in the context of conduct of counsel.
PEEK J: I think the Chief Justice is putting to you that might be right in relation to some problems with the trial, but when you go to something that goes to the very root of the concept about trial, such as the discussion in Wilde v The Queen, when you go to something really fundamental, then the breach of something so fundamental is, ipso facto, a miscarriage of justice because he hasn’t had a trial according to law.
MR PETRACCARO: I understand.
PEEK J: You keep coming back to the incompetence of counsel, but the Chief Justice is really saying it doesn’t really matter when you get to such a fundamental situation.
MR PETRACCARO: The only answer I can give is that one still has to look at the trial, one has to look at the evidence and, in my submission, in this case, the giving of the evidence put the appellant arguably in a better case because those three aspects of his defence were before the jury which would not have got before the jury. I understand what is being put to me and I am just simply trying to reply to it in that there may be cases where counsel genuinely overlooks something like that, like giving their client a talk about what they should do at the end of the Crown case. All I can point to is the cases on incompetence of counsel because one of the issues is it is arguably incompetent to not do that, and then the authorities indicate one still has to look at the case and look at what occurred in the case. Now, if this court takes the view that, regardless of how it happened, advice that you don’t have to give evidence is not given is ipso facto, to use Peek J’s term, a miscarriage of justice, then obviously that is the end of the matter from the respondent’s point of view if your Honours make the finding the advice wasn’t given.(Emphasis added)
We have above found that the appellant was not advised that he did not have to give evidence in circumstances where he did not wish to give evidence, and only did so because he erroneously thought that he was obliged to do so. The giving of evidence choice is so fundamental to the modern common law concept of trial by jury that we consider that a miscarriage of justice has been established in the present circumstances and a re-trial is necessary.
Disposition and orders
We order that:
1An extension of time within which to appeal is granted.
2Permission to appeal is granted.
3The appeal is allowed.
4The convictions are set aside.
5A re-trial be held on the Information.
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