R v MacNamara

[1998] QCA 155

IN THE COURT OF APPEAL	[1998] QCA 155
SUPREME COURT OF QUEENSLAND

C.A. No. 19 of 1998.

Brisbane

[R v. MacNamara]

T H E Q U E E N

v.

SEAN PATRICK MACNAMARA

Appellant

___________________________________________________________________________

Pincus J.A.
McPherson J.A.

Muir J.

___________________________________________________________________________

Judgment delivered 19 June 1998

Separate reasons for judgment of each member of the Court, each concurring as to the order
made.

___________________________________________________________________________

APPEAL AGAINST CONVICTION DISMISSED
___________________________________________________________________________

CATCHWORDS: CRIMINAL LAW - appeal against conviction - appellant a company director - concealing a debt due by the company - inducing a person to give credit to a company by false pretences - complaint that prosecutor did not call all relevant witnesses - whether appellant’s counsel at trial should have called evidence - whether a miscarriage of justice occurred.

Corporations Law ss. 590(1)(c)(ii) and 596(a)

Richardson (1974) 131 C.L.R. 116
Apostilides (1984) 154 C.L.R. 563
Birks (1990) 19 N.S.W.L.R. 677
Nazif Al (1990) 49 A.Crim.R. 258

Green [1997] 1 Qd.R. 584

Counsel:	Appellant appeared on his own behalf. Mr B Callaghan for the respondent.
Solicitors:	Appellant appeared on his own behalf. Commonwealth Director of Public Prosecutions for the respondent.
Hearing date:	21 April 1998
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 19 June 1998

I have read the reasons of Muir J. in which the issues are explained and am in general

agreement with them.

Although this was not very clear from the documents which the appellant sent to the Court before the hearing of the appeal, it seemed from the appellant’s oral argument that his substantial complaint was that his counsel should have called evidence on his behalf. He told us that this question was the subject of dispute between himself and his counsel and that he ultimately, "under duress", agreed to the course advised, which was that no evidence should be called.

In the course of discussion of the point before us, the appellant referred to a number of documents which, he said, should have been tendered and could have helped his case. An example is a letter from accountants dated 28 November 1994, the relevance of which was, according to the appellant, that the accountants "already had the appropriate adjustments at their hands and they had not put those adjustments into the figures". Because of the date of the letter, which was after the alleged offences were committed, it is not easy to see how it could have assisted the appellant’s case. More importantly, the letter does not suggest that the adjustments to which the appellant referred had been made. After discussion of this matter before us, it became clear that the letter of whose absence the appellant complained could not have assisted and that the appellant’s real complaint was that other evidence (not the letter) was not called, relevant to this subject of adjustments to the figures. More generally, it did not seem that the additional documents which the appellant discussed before us would have been likely to affect the outcome of the case.

The appellant also complained about inaccuracies in Exhibit 10, a document which purports to set out amounts owing to creditors as at 30 June 1994. We have been shown copies of invoices which suggest that some of the amounts listed did not become due until after 30 June 1994; however, these are matters of detail which could not have made a difference to the verdicts. Our attention was also drawn to the fact that financial statements which were, it appears, the basis of four of the counts were marked "draft for discussion purposes only". Again, it is not easy to see how this circumstance, which is very apparent on the face of the documents, could vitiate the verdicts.

To return to what I take to be the appellant’s principal point, that through the fault of his counsel no evidence was called on his behalf, there is some authority suggesting that errors in conduct of the defence case must be extreme in order to make the trial a miscarriage of justice. Discussion of complaints about counsel’s conduct is to be found in Green [1997] 1 Qd.R. 584. In the principal judgment the view is expressed that:

". . . a new trial will generally not be appropriate unless incompetent or improper conduct by counsel deprived the person convicted of a significant possibility of acquittal, such as for example when the accused is deprived of the opportunity to present his defence . . ." (587).

Then it is said that that test will not be satisfied other than in "wholly exceptional circumstances", by reference to decisions made "which might have involved both advantages and disadvantages for an accused person . . .". Unless it clearly appears that a mistake has been made by counsel and that it is one of importance this Court has not been inclined to give effect to complaints of this kind. Here, one could hardly be satisfied on the material presented to us that the view counsel took - that the trial was one in which the advantage of being able to address after rather than before the prosecutor was likely to outweigh the benefit of any evidence which might be called - was erroneous, although no doubt the outcome of the case inclines the appellant to think that it was.

I agree that the appeal should be dismissed.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 19 June 1998

I agree with the reasons of Muir J. for dismissing this appeal.
I would add only that, at a more general level, the appellant, in what he said to this Court,

accepted that he made the relevant decisions on the matters at the trial about which he now complains, including the election not to give evidence himself. He claimed, however, that those decisions were made under “duress”. What he meant by that, he said, was that his counsel had advised him that, if he did follow the course he would have preferred, the outcome might be the worse for him. The advice was to the effect that his sentence might well be more severe and much closer to the maximum of two years imprisonment, with a fine of up to $10,000, rather than at a substantially lower level possibly with a recommendation for early parole.

That is the kind of dilemma which commonly if not invariably confronts an accused person in circumstances like these. The efforts of the accused to exculpate himself from the offence charged may achieve nothing but exposure of the full seriousness of his conduct, and so ensure not only that a verdict of guilty is returned but that it attracts a heavier sentence for the offence than might otherwise have been imposed. If that amounts to “duress”, then it is a state of affairs that is not of counsel’s making. As it happens, the advice that was given by counsel in this instance was borne out by the result in the case. The appellant received a sentence of imprisonment for 12 months with a recommendation for parole after serving only four months of it. An accurate assessment, whether before or even after verdict, of the likely impact of the additional evidence of the kind that the appellant now insists should have been adduced at his trial is in most cases virtually impossible even with the benefit of hindsight. The reasons of Muir J. sufficiently demonstrate that in the present instance it would only have contributed to the likelihood of a conviction without any countervailing advantage, but with probability of even greater harm being done to the appellant’s interests both before and after conviction.

The case is therefore plainly not one in which some glaringly obvious and rationally inexplicable error was committed that calls for the intervention of this Court to remedy an apparent miscarriage of justice. The alternatives were explained to the appellant, who made his choice on the basis of the advice tendered to him. The pressure which he felt himself to be under at the time is no different from that experienced by any other accused person faced by a comparable choice in similar circumstances.

The appeal against conviction should be dismissed. Needless to say, there has been no attempt to appeal against the sentence.

REASONS FOR JUDGMENT - MUIR J

Judgment delivered 19 June 1998

The appellant was convicted in the District Court on 27 November 1997 of:

• 6 counts of contravening s.590(1)(c)(ii) of the Corporations Law in that between 1 August 1994 and 30 September 1994, being an officer of Texglade Pty Ltd “Texglade”) trading as International Style Homes, he concealed a debt due by Texglade Pty Ltd to a specified person;

• 3 counts of contravening s.596(a) of the Corporations Law in that on or about 16 September 1994, being an officer of Texglade trading as International Style Homes he, by means of a false pretence, induced a specified person to give credit to Texglade; and

• a count that on or about 24 November 1994 he contravened s.596(a) of the Corporations Law in that being an officer of Texglade trading as International Style Homes he, by means of a false pretence, induced Corinthian Industries (Queensland) Pty Ltd to give credit to Texglade Pty Ltd.

The grounds of appeal specified in the notice of appeal were as follows:

“The prosecution failed or neglected to put before the court evidence in its
possession exculpatory of the appellant.”

In an outline of argument forwarded to the court on 17 April 1998, the appellant put forward the following additional grounds of appeal:

1.          The investigation processes in administration and subsequent ASC investigation were not properly or fully undertaken or executed.

2.          I was precluded from my best efforts to attain the best legal representation.

3.          I was presumed guilty before the hearing and trial.

4.          No witness or evidence was put forward on my behalf.

5.          Much of the evidence in counts 1-4 and 6 is incorrect if not misleading.

6.          Relevant evidence has not been introduced that contradicts evidence put forward.

7.          Some of the trial witnesses have perjured themselves.

8.          My legal representation and counsel via Legal Aid precluded me from testimony in my own defence.

The evidence in relation to the ground specified in the notice of appeal

The appellant identified 4 persons as ones who ought to have been called as prosecution witnesses. Those persons are alleged to have been capable of giving the evidence described below.

Julie Irene Tyrrell

A draft statement was produced by Ms Tyrrell stating in substance that -

• she commenced employment on a consultancy basis with Texglade on 9
September 1994;

• the administrative support staff of Texglade performed their duties
inadequately;

• the appellant was “responsible for the administration of the office and
financing and financial matters”.

• Kelvin Smith, another Director of Texglade, was responsible for “construction, costing/estimating, purchasing, approval of invoices and cost analysis”.

• a meeting took place between officers of Texglade and creditors on 16 September 1994. She attended that meeting in its latter stages “when only the major trade creditors were left”. Present at the meeting were the appellant, Smith “Mike and Dianne Mathers, Wayne Haase and Mal Coleman”. In the course of the meeting Dianne Mathers asked “.... to see company figures, (the appellant) went downstairs and returned with paperwork”. He mentioned that the figures were draft figures. She said at one stage “I am not an accountant but I have just completed an analysis of moneys due and moneys owed and it looks in good shape”.

• She was the appellant's de facto wife at the time of her employment by
Texglade.

• She was not interviewed by the Australian Securities Commission but was the subject of an oral examination conducted by a representative of administrators appointed to Texglade.

In a Form XXXII (“appellant’s application for further witness”) lodged by the appellant, it was said that Ms Tyrrell could give evidence -

“about invoicing system's invoice costings and the where about (sic) of invoices prior to 16 September 1994 approximately. Where the invoices where (sic) and why and whose job it was to do the costings up until 16 September 1994 approximately. Also my conversations with him regarding the whole of the 1994 draft accounts.”

Patrick Joseph MacNamara

Mr MacNamara is the appellant's father. A Form XXXII lodged by the appellant stated that this potential witness was not examined for the reason that he “could not be called because he was not advised that he could not give evidence once he had entered the court”. The appellant asserted that he wished to examine him on “the perjury of Mr Smith and the number of requests to Mr Kelvin Smith to hand over all invoices and costings in his possession prior to 16 Sep 1994 approx for the office to complete these tasks. In response to the instruction “state shortly the evidence you think he can give ...” he recorded that “Mr Smith had all the invoices in his possession prior to 16 Sep 1994 and would not hand them over as requested”.

Sean Patrick MacNamara

The appellant asserted that he did not give evidence because he was advised by counsel not to be a witness “as it would prejudice his summing up last”. He asserted in a form XXXII that he could have given evidence on:

“1.	Number of request for Mr Smith to forward invoices and costings prior to 16 Sep 1994.
2.	Where abouts of invoices prior to 16 Sep 1994.
3.	Perjury by Mr Smith in this matter. That Mr Smith kept in his possession all invoices even though he was requested on several occasions to forward them to the office. Further his lack of application to the costing systems and my discussions with him on the draft 1994 accounts.”

Derrick William Bailey

It was asserted that Mr Bailey was not called as a witness because he was not “requested by prosecution”. The evidence which he could have given was said to be:

“The previous dealings of Kelvin Smith not being advised to the other Directors
of Texglade Pty Ltd.

That it was only disclosed at the oral examination that Kelvin Smith had twice previously been bankrupted for building venture's failing.”

Principles of law applicable to the ground specified in the notice of appeal

In Richardson v The Queen (1974) 131 CLR 116, the Court concluded:

The prosecutor in a criminal case has a discretion as to whether or not a person should be called as a witness for the prosecution;

There is no rule of law requiring the prosecutor to call particular witnesses;

“... the decision of the prosecutor not to call a particular witness can only constitute a ground for setting aside a conviction and granting a new trial if it constitutes misconduct, which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice.”

It was said earlier in the judgment that the prosecutor:
“ ... has the responsibility of ensuring that the Crown case is properly presented
and in the course of discharging that responsibility it is for him to decide what
evidence, in particular what oral testimony, will be adduced. ...

In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown...”.

The point was made that the prosecutor's decision does not have the same character as the exercise of a judicial discretion or the exercise of discretionary power so as to make his decision reviewable in the same manner as those discretions are reviewable.

In The Queen v Apostilides (1984) 154 CLR 563, the Court quoted from the Judgment of the Court in Richardson v The Queen (supra) at some length and, relevantly, summarised propositions of law applicable to the conduct of criminal trials as follows:

“1. The Crown prosecutor alone bears the responsibility of deciding whether a

person will be called as a witness for the Crown.

...

6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.”

At 577-578 it was observed:

“The absence, for whatever reason, of any evidence from the complainant was the basic reason, in the light of such evidence as was called, for the Court's conclusion (in Whitehorn (1983) 152 CLR 657) that the verdict was unsafe and unsatisfactory. So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory.”

Application of the above principles to the facts

Obviously, the prosecution was not obliged or even able to call the appellant to give evidence against himself.

The evidence which Bailey is alleged to have been able to give is, (assuming its relevance) at best, peripheral. There is evidence that he left Texglade in June 1994, well before the events the subject of the offences under consideration.

There is no material before the court which suggests that the prosecutor ought to have regarded the appellant's father as a witness who should have been called in accordance with the principles expressed in the above cases. The matters on which it is said he could have given evidence were the subject of evidence by Smith and others. Smith's evidence about Texglade's procedures for handling invoices and his own involvement with the paperwork was subjected to little challenge in cross-examination. It was suggested to Smith in the course of cross- examination that subcontractors, despite being told to send their invoices to Texglade's office continued to give them to him. He responded that 95% of subcontractors would send them in to the office and that he, Smith, would accept them only if he was “going into the office right then”. This exchange then occurred-

“Sure. But by - say by June 1994 would you say 95 percent of them were giving you - sorry - would you say only five percent were giving you their invoices then? -- Yeah, yeah.”

Earlier in cross-examination the appellant's counsel had suggested to Smith that he received invoices. Smith responded to that suggestion as follows-

“Some were given to me, but then as we went on, they weren't to be handed to

me, they had to be in at the office.”

The cross-examination continued-

“Sure. Was that - can you put a time about, can you give us some sort of indication, as between January 1993, and September of 1994, when it was that it was - it became country (sic) policy, if you like, that invoices were not to be collected by you any more, but rather to go to the office? -- I think it sort of come in around - I think it happened virtually within the first full month of us trading, really.”

The time for the policy change was then established, in an exchange between counsel and the witness, as October 1993. There was no challenge to Smith's evidence as to the existence of such a policy. Nor was it suggested to Smith that the appellant had made demands on him for invoices, and that such demands had been met with refusal by Smith.

Smith was also questioned as to what documents had been provided by him to the Australian Securities Commission. It was not suggested to Smith by the appellant's counsel that he handed any invoices to the Commission.

George Ronald Harris, a partner of KPMG Peat Marwick, chartered accountants, (“KPMG”), gave evidence that his firm was instructed to prepare financial statements for Texglade in July 1994. He said that he spoke to the appellant who brought him the company's financial materials. He said that he had discussions with the appellant about Texglade's financial statements in about September 1994. No suggestion was made to Mr Harris in cross-examination along the lines of the appellant's having informed Mr Harris that Texglade's financial information was incomplete as a result of invoices being held by Smith or anyone else.

Another employee of KPMG, Dianne Chetham, was called by the prosecution. She gave evidence that she worked under Mr Harris in dealing with the affairs of Texglade and in that capacity had dealings with the appellant. Mrs Chetham was cross-examined at some length by the appellant's counsel. She was asked- “Did you ever speak to Mr Smith at all about any accounts he might have?” She replied “No” and said she had never spoken to Smith. She was asked if she had discussions with the appellant about the fact “he was finding it difficult to get things together because there'd been a break in at the office” but it was not suggested to her that any such difficulty arose out of Smith's retaining documents.

The overwhelming thrust of the evidence was that the appellant was responsible for and had access to relevant invoices at all relevant times.

The appellant's father was thus a far from obvious choice as a witness for the prosecution. In relation to Ms Tyrrell, there is no material before the court which suggests that the prosecutor was aware or ought to have been aware that she was in a position to give evidence of importance. Her role was not referred to in any relevant way by any witness. Counsel for the appellant did not request that she be called to give evidence. She was not a person named in the indictment or a person “... whose evidence is essential to the unfolding of the case for the Crown”.

An accused’s representation and the way in which a trial has been conducted is relevant to a consideration of whether or not there has been a miscarriage of justice connected with the failure to call evidence. In R v Birks (1990) 19 NSWLR 677 at 685 Gleeson CJ said -

“(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 recognized 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.”

The principles so expressed were approved by the Court of Criminal Appeal in R v Oliverio (1993) 61 SASR at 354 and again in R v Scott (1996) 137 ALR 347.

Here, the appellant was represented at the trial and no suggestion was made by his counsel that there were witnesses not called by the prosecution who should have been called. That is a matter of considerable significance. It is also not without relevance that no material before the court suggests that failure to call the witnesses which the appellant asserts should have been called was not part of an informed or deliberate decision on the part of the appellant's counsel.

At best for the appellant, the witnesses whom he alleges should have been called by the prosecution may have been able to give some admissible evidence which conflicted with Smith's evidence about the extent to which he retained invoices. That evidence though was unlikely to shed any light on why, if it was the fact that Smith was retaining a material amount of invoices, KPMG were not so informed. In my view, the prosecution's failure to call these further witnesses cannot be said to have resulted in a miscarriage of justice.

The remaining grounds of appeal and the facts and submissions relevant to them

Grounds 1 and 3 of the further grounds of appeal appear to complain of conduct on behalf of the investigating authority. These complaints are of no relevance to the appellant's prospects of success on appeal and were not relied on by him in the course of oral submissions.

Further ground 2 is in a somewhat similar category and no evidence was adduced in

support of it.

Further grounds 5 and 7 amount to no more than an attempt to take issue with evidence given in the trial in circumstances in which a decision was taken not to adduce evidence which may have cast doubt on the evidence led by the prosecution.

There remain the complaints that evidence was not led on behalf of the appellant that could have been led and that that appellant was precluded from giving evidence in his own defence by “my legal representation and counsel via legal aid”.

The main thrust of the relevant assertions of the appellant as to the additional evidence which could have been lead are set out above. The focus of his complaints is the allegation that Smith held a substantial number of invoices which he failed or refused to pass on to the appellant. The appellant adduced no sworn evidence in support of his contentions. In the course of oral submissions he gave the following account of the way in which the trial was conducted. He said that he attempted to persuade his counsel to “present documents” and to call him to give evidence. His counsel advised that he should not give evidence or adduce evidence on his behalf as, by so doing, he would be deprived of the advantage of a final address. He said that there was an altercation between himself and counsel as a result of which he “sacked” his legal advisers. After discussion he re-appointed them. A motivation for so doing was, according to him, an assertion by his legal advisers that it would be in his best interests for submissions in relation to sentence be made by counsel in the event that he was convicted. He said that after he reinstated his legal advisers he signed a document in which he agreed not to give evidence. There was no suggestion in this oral account that he had complained to his counsel that he was inadequately or erroneously dealing in the course of cross-examination with the question of Smith's role in keeping and/or withholding company records.

In the course of his oral submissions he was invited to identify documents which he would have put before the court had he given evidence. He referred to three documents.

The first was a letter dated 9 September 1994 from KPMG to the directors of Texglade. The part of the letter on which the appellant sought to rely was one which referred to an assertion by the accountants that detailed job costing records were “absolutely vital information to enable accurate costings to be made and for accurate profit recognition”. It continued “We understand that such records have been implemented in the last few months”. That may be thought to be evidence which may have proved more disadvantageous than advantageous to the appellant.

The second document was a letter from KPMG to the appellant's solicitors (or to
Texglade's solicitors) dated 28 November 1994. I can see nothing in the part of that letter
identified by the appellant as relevant which was likely to have materially advanced his case.
The third document was a receipt from a driver of the truck dispatched from the

administrator's office to pick up the company records from the appellant's house. The appellant

said that listed in the receipt were the documents picked up by the driver and that-

“We noted on the form that he picked up the invoices from September, late September 1994 onward in relation to the new job costing systems, because we never had invoices from 16 September or from September 94 back to the beginning of our term on the premises, because they were at Mr Smith's place where he was doing the job costing or supposed to be.”

A copy of this document was not produced on the appeal. Mr Van der Waude, a chartered accountant employed by Hall Chadwick, who was the manager in charge of the day to day administration of the winding up of Texglade, was called by the Crown to give evidence. He swore to having picked up documents relating to the affairs of Texglade from the appellant. He further gave evidence that he had received all the records of Texglade and had subsequently handed them on to the Australian Securities Commission. It was put to him that the records of the company which he received from the appellant “were in a bit of a mess”. He agreed. It was not suggested to this witness that the appellant had informed him that invoices or other documents remained in the possession of Smith. Nor was there any mention in his evidence of the receipt provided by the truck driver delivering documents to Hall Chadwick.

Application of relevant principles of law to the facts

The principles expressed by Gleeson CJ in R v Birks, which is set out above, are relevant to the grounds now under discussion. In Nazif Al (1990) 49 A Crim R 258 Crockett J, with whom the other members of the court agreed, in discussing a ground of appeal based on failure on the part of the defence counsel to have his client give evidence said at 262:

“The decision as to what course the defence should take was one peculiarly for counsel, and such a decision when made, presumably after weighing the advantages and the disadvantages attaching to either possible course, is one which this Court would not lightly treat as affording ground for its intervention.

The relevant law is to be found summarised in a decision of this Court in Re Knowles [1984] VR 751 at 767 where the Court in a joint judgment, after referring to what was said by Smith J in Re Ratten [1974] VR 201 at 214, said:

‘In Sarek [1982] VR 971 at 982-983: ... McInerney J, in a judgment in which Kaye J agreed, said: “It is obviously dangerous to embark on a course of determining whether a new trial should be mounted on a basis of the inexperience or remissness or defect of judgment or neglect of duty on the part of the legal practitioner appearing at the trial.

Such factors will not in themselves induce a Court of Criminal Appeal to quash a conviction and order a new trial unless the Court is satisfied that in the result a miscarriage of justice has occurred: see McCall (1920) 20 SR (NSW) 467 at 472, per Cullen CJ.

Where an accused person has at his trial been defended by a legal practitioner, a Court of Criminal Appeal will attach great significance to the deliberate decision of that practitioner as to the conduct of the trial and the defences taken at the trial and it will be very reluctant to substitute its judgment for that of the practitioner who appeared for the accused at the trial ... In most cases the appellant tribunal will not seek to go behind a deliberate decision taken at the trial by a solicitor or counsel for the accused or even by the accused himself. Nevertheless the fundamental question must always be whether the conviction involves or has brought about a miscarriage of justice: see Maric (1978) 52 ALJR 631 at 634-635, per Gibbs J.

The position is that, provided the case is seen to be an appropriate one, this Court may ‘interfere to protect an accused man from his own counsel (Young and Robinson [1978] Crim LR 163 at 164) and from the result of bad management or misconduct of his case at the trial ...”.

No material placed before the court by the appellant demonstrated that any of the matters complained of were not the result of a deliberate decision by the appellant's counsel.

The appellant's counsel in the trial was conversant, in a way which this Court cannot hope to duplicate, with the course of the trial and the likely impact of the evidence. He had cross- examined the Crown witnesses and was in a position to form a judgment as to the likely effect of his cross-examination. He was in a position to form a judgment, and no doubt formed a judgment, as to the strengths and weaknesses of the Crown case against his client. We are not told whether he had had the opportunity of interviewing the suggested additional witnesses or whether he had been acquainted with the nature of the evidence which they might be able to give. But even if he had been informed of the matters placed before this Court and discussed above, it can hardly be said that he would not have been entitled to form the view that the appellant's best interests would be served by not calling the additional evidence but by, instead, reserving the right of last address to the jury. Some of the same considerations apply to the question of whether the appellant himself should have been called to give evidence. In the case of whether the appellant should be called to give evidence, his counsel was required to make other assessments such as the risks involved in exposing the appellant to cross-examination.

On the material placed before this Court, I am unable to be satisfied that any decision taken by the appellant's counsel which led to the failure to call evidence complained of by the appellant should be categorized as inappropriate or negligent. I am not satisfied that the course chosen by the appellant's counsel at the trial was such as to cause the appellant's conviction or to make it highly probable or even more likely than it would have been had the course now urged by the appellant been followed.

For the reasons advanced above it is impossible to conclude that there was any miscarriage of justice and I would dismiss the appeal.