R v Kennedy

Case [2017] SASCFC 170

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…

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R v Kennedy [2017] SASCFC 170
Case
[2017] SASCFC 170
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CaseChat Overview and Summary

In R v Kennedy, the Court of Appeal of South Australia considered an appeal against convictions for sexual offences. The appellant, Kennedy, argued that a miscarriage of justice had occurred due to his trial counsel's failure to advise him of his right to choose whether or not to give evidence.

The central legal issue before the Court was whether the appellant's belief that he was obliged to give evidence, stemming from his lawyer's failure to inform him of his choice, constituted a miscarriage of justice. The Court was required to determine if this error, concerning a fundamental aspect of the trial process, warranted setting aside the convictions.

The Court found that it could not reject the appellant's evidence that his lawyer had not advised him of his right to remain silent, that he believed he was compelled to testify, and that he would have chosen not to give evidence had he been aware of this option. Applying principles from New Zealand authorities, the Court emphasised the unique importance of the decision to give evidence. It held that counsel's error, whether by giving erroneous advice or failing to advise, directly impacted this central choice and led to the appellant making a decision contrary to his wishes. Consequently, the Court concluded that a miscarriage of justice had occurred.

Given the finding of a miscarriage of justice, the Court determined that the proviso, which allows an appeal to be dismissed if no substantial miscarriage of justice has occurred, could not be applied. The Court noted that the appellant was disadvantaged during cross-examination due to his lack of proper advice regarding his right to remain silent. The convictions were therefore set aside, and a new trial was ordered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.