R v Matthew William Clark, Jason Troy Greatbatch:, Brenton Charles White and Robert Graeme White Nos. SCCRM 96/158, SCCRM 96/178, SCCRM 96/179, SCCRM 96/180 Judgment No. 5852 Number of Pages 39 Criminal Law

[1996] SASC 5852

COURT IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA COX, PERRY AND LANDER J

CWDS
Criminal law - appeal and new trial and inquiry after conviction - particular grounds - conduct of legal practitioners - appeals by four accused who were tried jointly for aggravated assaults on three hotel customers - whether evidence of photographic identifications and dock identifications should have been admitted - sufficiency of identification warning - common purpose direction - whether verdicts were unsafe or unsatisfactory - whether trial of two appellants was mismanaged by their solicitor or counsel, and whether one appellant was entitled to rely upon a conflict of interest or at least an apparent conflict of interest involving the solicitor who acted for him and another appellant.

Criminal law - appeal - practice: after criminal appeal legislation - miscellaneous matters - South Australia - powers of appellate court - claim by appellant that his defence was mismanaged by his solicitor and his counsel, and that there was a conflict of interest involving his solicitor who was acting for another accused as well - allegations of mismanagement put before CCA in affidavits from appellant and others - no affidavit obtained from solicitor or counsel - whether Criminal Law Consolidation Acts359 entitles CCA of its own motion to request reports from the two lawyers and to require them to give evidence - status of any unsworn report, in conflict with appellants' affidavits, considered. Criminal Law Consolidation Act (SA) 1935 s359; Criminal Appeal Rules (SA) ; Criminal Appeal Act 1907 (UK) s9(1); Criminal Appeal Act 1968 (UK) s23, referred to. Alexander v The Queen (1981) 145 CLR 395; The Queen v Deering (1986) 43 SASR 252; Domican v The Queen (1992) 173 CLR 555; R v Oliverio (1993) 61 SASR
354; R v Scott (1996) 185 LSJS 436; Birks v R (1990) 19 NSWLR 677; Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989) 167 CLR 259; Mills v The Queen (1995) 1 WLR 511, applied. R v Gilfoyle (1996) 3 All ER 88; The Queen v Armstrong (1983) 35 SASR 356; The Queen v Miletic (9 August 1996, unreported Supreme Court of Victoria) , discussed. R v Britten (1988) 51 SASR 567; Ahern v The Queen (1988) 165 CLR 87; Tripodi v The Queen (1961) 104 CLR 1, considered.

HRNG ADELAIDE, 19-20, 23-25, 27 September 1996 #DATE 22:11:1996

Counsel for appellant Clark:            Mr P J Rice

Solicitors for appellant Clark:         Elston Gilchrist

Counsel for appellant Greatbatch:     Ms B J Powell QC with Mr D J
   Wardle

Solicitors for appellant Greatbatch:    Douglas Wardle

Counsel for appellant B White:         Mr M L Abbott QC with Mr D
   Agresta

Solicitors for appellant B White:     Condello And Co.

Counsel for appellant R White:         Mrs M E Shaw And Mr D
   Petraccaro

Solicitors for appellant R White:     Caldicott And Co.

Counsel for respondent R:             Mr P R Brebner

Solicitors for respondent R:            DPP (SA)

ORDER

JUDGE1 COX J
1. The appellants were tried jointly in this Court with having severely beaten three customers at a hotel at Brompton on 21 April 1995. The issue was the adequacy of the identification evidence. They were all found guilty. They now appeal on a variety of grounds - that evidence of photographic identifications should not have been admitted into evidence, that the learned trial Judge should not have allowed the appellants to be identified in the dock, that his HonourÕs identification warning was inadequate, that the common purpose direction was erroneous and that the verdicts were for a number of reasons unsafe or unsatisfactory. The appellants Clark and Robert White also say that their trial was mismanaged so that evidence that should have been given in their defence was not presented to the jury, and in addition Robert White says that he is entitled to rely upon a conflict of interest or at least an apparent conflict of interest involving the solicitor who acted both for him and for the appellant Brenton White. We heard evidence on the latter grounds and argument on them all and the appeal ran for six days.

The nature of the Crown case 2. The victims of the assaults - for it was not really disputed that they were assaulted by someone - were three young men named Peter Sarvanidis, his brother Anastasios (also known as Tom) Sarvanidis and their cousin Stratis Nikolakakos. I shall follow the trial JudgeÕs practice of referring to them by their first names. They went to the Brompton Park Hotel on the afternoon of Friday 21 April 1995 to speak to a man named Damianos, to see the strip tease shows and to have a few drinks. They watched the strip shows from a position at the back of the lounge bar. They were in the bar from about 2 to 4.30. There were up to one hundred and fifty people in the hotel, Peter thought, most of them standing, but he did notice a group of four men seated at a table a couple of metres in front of them. Peter did not know them but he did know by sight two brothers, Souli and George Takianos, who joined the men after a time, and there was a seventh man who joined the group not long before the trouble occurred. Peter noticed that between shows one of the men at the table was turning around and looking at his group quite aggressively and at one stage this man came over to him and said, "What are you smiling at?" Peter said something like, "Look mate, you know, IÕm not smiling at anything. WeÕre just about to go now." The other man said, "Go, then." Peter and his friends headed immediately for the door. However, before they got to the door Peter looked back and the men, other than the Takianos brothers, who had been at the table were all coming towards him. He and his companions were pushed and hustled in the doorway and ended up outside in the street, but by the time they got outside Stratis had been king hit in the head and the other two had been assaulted as well. They were punched and kicked in a brutal fashion. Peter was badly bruised from punches and kicks all over his body. Tom was hit hard on the head and his nose was broken. The latter injury required eighteen stitches. The beating that Tom Sarvanidis received rendered him unconscious for a time and put him into the Queen Elizabeth Hospital for fifteen days. His injuries included fractures to the jaw and the right eye orbit and the right wrist.

3. The general tenor of PeterÕs evidence about what happened was confirmed by the other two victims. There were differences in details.

4. On the vital issue of identification there were two main questions - whether the men who attacked the victims at the doorway were the men, other than the Takianos brothers, who had been sitting at the table in front of the victims during the strip shows and, secondly, whether those men at the table could be identified. Unless the first question was answered in the affirmative the second hardly arose as a practical issue because, while there were sightings by the victims of the assailants near the doorway or during the assaults, they were hardly in a position to make a reliable identification of an assailant if they were seeing him at that stage for the first time.

5. It was the evidence of Peter Sarvanidis that he saw the assailants as he got to the door and also outside the hotel, and he said they were the men who were at the table with the exception of the Takianos brothers. So on his evidence there were five of them who pursued the victims. Tom Sarvanidis said that when they were near the door he "sensed" behind him the person who had stared at them earlier. The next thing he remembered was being beaten up on the footpath. Stratis Nikolakakos said that after PeterÕs exchange with the starer inside the hotel they made their way towards the front door and as they did so they got muscled along a short corridor to the door. They were followed immediately by some people. When he turned around to see who was doing the bustling he was hit in the face by a person he had seen sitting in front of him in the lounge bar. So the identification of the men at the doorway with the starer and others sitting at the table depended largely but not wholly on the evidence of Peter.

6. The evidence that was led to answer the second question was the much disputed photographic identification. Peter reported the incident to the police on 23 April 1995 and Detective Jenkins thereupon began his investigation. His enquiries of the victims gave him descriptions but no names. (He said on the voir dire that there was reason to think that some or all of the assailants were members of the Finks Motor Cycle Club, but his enquiries of club members did not produce any suspects who could be invited to take part in a line-up. There was also evidence on the voir dire that nine club members including Clark and Brenton White were asked to go into a line-up and refused. But none of that, so far as I can see, was given in evidence before the jury. But, as I say, Jenkins did not suspect any particular person or persons at this stage.) He therefore prepared a series of folders containing photographs of some known Finks members along with photographs of other persons. There were twenty-one folders each containing twelve photographs - about two hundred and fifty photographs in all. On 28 May 1995 the three victims were taken to the Adelaide Police Station to view the folders of photographs. The evidence was that the witnesses were properly segregated during the exercise. Peter claimed to identify Brenton White as the starer who spoke to him inside the hotel and as a man he saw kicking his brother outside the hotel. He identified Clark as a man he saw both inside and outside the hotel but he did not see him hitting anyone. He identified Robert White as a man with puffed-up hands whom he saw inside and also at the door and, probably, as the person who king hit his cousin on the head, and he identified Greatbatch as the tall man who arrived at the table towards the end of the proceedings and whom he saw later when he tripped over the witness during the fight outside. Tom Sarvanidis identified Brenton White as the starer and Clark as another man at the table. Stratis Nikolakakos also identified Brenton White as the starer, and said in chief that Robert White was the man who hit him near the doorway and whom he had seen from behind in the hotel. Clark, he said, was at the table with the others, and the witness had spoken to him briefly when they were both walking away from the lavatory during the afternoon. (Of course, to say that these witnesses "identified" one or more of the accused at the police station is inaccurate - they claimed to recognize them by their photographs - but I cannot keep saying "claimed" or "purportedly" of all this identification evidence.)

7. The prosecution called the man Damianos who said he was doing some building work at the hotel on April 21. He saw three or four motor cyclists arrive about 2 oÕclock and sit in a group in front of Peter, Tom and Stratis. They were wearing jackets and one of them had "Finks" on the sleeve. However, according to a statement Damianos had given to the police, this was on the sleeve of a red and white jumper worn by a red-headed man of large build with rings on his fingers.

8. Mr Russell, the hotel keeper, explained that he was very busy that afternoon with the strip shows but he did notice a couple of people with Finks insignia on their clothing. They were sitting at a table in the position described by the victims. He did not know their names. He knew nothing about the fracas until it was over.

9. The police arrested the four appellants in June 1995. They charged them with causing grievous bodily harm to Tom Sarvanidis with intent to do him grievous bodily harm, with an alternative count of assault occasioning actual bodily harm, and in separate counts they charged them with assaulting Peter Sarvanidis and Stratis Nikolakakos respectively and thereby occasioning them actual bodily harm. The prosecution relied on the evidence to which I have referred. None of the appellants gave or called evidence in his defence. As I have indicated, they were convicted on the first, third and fourth counts.

10. Most grounds of appeal are common to all appellants, but Clark and Robert White also seek to have their convictions overturned on the ground that the verdicts may have been different had there been put before the jury certain evidence that was put before the Court of Criminal Appeal and that should have been but was not called at the trial. Robert White also relies on a real or apparent conflict of interest on the part of his solicitor who was also acting at the time for Brenton White and indeed, at one point, for Greatbatch as well.

The common grounds of appeal - identification 11. I begin with the grounds of appeal that do not relate to the evidence led on the appeal. Not all grounds were argued by all counsel - for instance, Mr Rice, for Clark, made no submission about the trial JudgeÕs identification ruling - but it will not usually be necessary to identify the party or parties who supported a particular ground.

12. It was submitted that the learned trial Judge exercised his discretion wrongly when he admitted the photographic evidence. The possible exclusion of this evidence was the subject of a lengthy pre-trial application. His Honour heard evidence on the matter. The issues included the supposed need in the circumstances to resort to a photographic identification of any of the accused, the procedures that were used by the police in this particular case, and the failure to offer the appellants a physical identification parade afterwards. In a careful ruling that was published after the trial the Judge noted the relevant exclusionary discretions. He summarized the well established disadvantages of a photographic identification when compared with a physical line-up. He found on the voir dire evidence that Detective JenkinsÕ enquiries had not produced any suspect, so that the investigation was well within the detection phase at the time the photographic line-up was conducted. He rejected as quite artificial the argument that, as soon as one of the victims had identified someone in one of the folders, the person identified should have been treated as a suspect and the other victims then invited to pick him out in a line-up. He considered that there was no unfairness in not offering physical line-ups to the appellants after the photographic identifications. The preparation of the folders and the other aspects of the identification procedure were acceptable. Jenkins agreed that he told Peter Sarvanidis after he had made his identifications that he had "done good" and had picked out members of the Finks Club but the Judge held that his comments, whether appropriate or not, could not have occasioned any unfairness to the appellants. His Honour was satisfied that the probative value of the identification evidence was not outweighed by its prejudicial effect, and he did not regard the admission of the evidence as being in any sense unfair to any of the appellants.

13. It is clearly established that evidence of a photographic identification of an accused person is relevant and admissible evidence. Mr Abbott QC, for Brenton White, submitted that such evidence cannot support a conviction unless it is corroborated by other evidence, but that is not the law. Davies and Cody v The King (1937) 57 CLR 170, on which Mr Abbott relied, dealt with the case of a witness being shown the accused alone as a suspect and identifying him then for the first time, which is not this case. However, photographic evidence may be excluded in the exercise of the trial judgeÕs discretion if its admission would be unfair to the accused or where public policy considerations call for the exercise of the discretion in the accusedÕs favour. It will often be an indicator of unfairness, enlivening the exercise of the discretion, that the police already regarded the accused as a definite suspect, because where that is the situation they should proceed, if practicable, by way of a physical line-up. See generally Alexander v The Queen (1981) 145 CLR 395 and The Queen v Deering (1986) 43 SASR
252. In the latter case King CJ said, at 253 -
    "Where there is a clear and definite suspect or where an arrest has
    been made the proper procedure to be followed is for the police to
    arrange an identification parade if the suspect or arrested person
    is prepared to participate in such a parade. If that procedure is
    not followed it gives rise to a discretion in the trial judge to
    exclude the evidence of identification by other means and that
    discretion will be exercised having regard to all relevant factors
    including, of course, the public interest in ensuring that persons
    who have committed crimes are convicted and punished for those
    crimes. It may be necessary to present photographs to an alleged
    victim of a crime at a stage of the investigation at which no
    person has been arrested and at which there is no definite suspect,
    in order to provide an opportunity for the victim to pick out the
    offender. The distinction between what Mr. Tilmouth in his
    submission has described as the pre-detection stage of an
    investigation and the post-detection stage of an investigation is
referred to in AlexanderÕs case (1981) 145 C.L.R. 395 Such a
    procedure involves no impropriety."

14. On the learned JudgeÕs Rule 9 findings that was the situation here. There was no definite suspect. The various line-up proposals that were put forward in argument, such as in some way holding multiple parades in which those members of the Finks Motor Cycle Club who were willing to do so would participate, were in my opinion impracticable. JenkinsÕs words of commendation to Peter Sarvanidis would have been better left unsaid, but there is no reason to think that they compromised the evidence of an identification that had already taken place or had my significant effect on what the witness said in court. It was put to us on behalf of the appellant Brenton White that he was not asked to take part in a physical line-up, and he gave evidence on the voir dire to that effect, but the Judge found against him on that issue. There was nothing unfair to the appellant about the circumstances surrounding his refusal or in taking him at his word. In my opinion the identification evidence of the victims was admissible and it has not been shown that the refusal to reject it on discretionary grounds was erroneous.

15. At the trial the learned Judge, over a defence objection, permitted the victims to identify in the dock those appellants whom they had already identified in the photographs. Such a procedure is often followed in this State; indeed, in R v Britten (1988) 51 SASR 567 King CJ said (at 572) that a witness who has identified an accused person out of court should always be asked at the trial whether he or she can identify the accused in court. It gives an honest witness an opportunity of reconsidering the matter and it may also stop the jury from inferring wrongly from the absence of a dock identification that the witness is unable to make one. Of course, these are negative aspects of such evidence. Probably the second identification will add very little, if anything, to the first. (It may, conceivably - the witness may perceive in court some significant feature of the accused that was not observable in the photograph.) There was also, as the learned trial Judge observed, some value in a dock identification for the jury, in a case involving multiple accused, in understanding which accused was alleged to have done what. Any risk that the juryÕs common sense does not guarantee that a dock identification does not generally prejudice the accused will be removed by the usual direction in the summing up. If there are cases in which it would be wrong to permit a supplementary dock identification, the present case was not one of them. It did not produce any unfairness. I would reject this ground of appeal.

16. Next, it was submitted that the learned JudgeÕs directions and warnings about the identification evidence were inadequate, and reliance was placed on the High CourtÕs judgments in Alexander and Domican v The Queen (1992) 173 CLR 555, including the following well known passage from the joint judgment in Domican about the way to counter the seductive effect of identification evidence in criminal trials -
    "Whatever the defence and however the case is conducted, where
    evidence as to identification represents any significant part of
    the proof of guilt of an offence, the judge must warn the jury as
    to the dangers of convicting on such evidence where its reliability
    is disputed. The terms of the warning need not follow any
    particular formula. But it must be cogent and effective. It must
    be appropriate to the circumstances of the case. Consequently, the
    jury must be instructed "as to the factors which may affect the
    consideration of (the identification) evidence in the circumstances
    of the particular case". A warning in general terms is
    insufficient. The attention of the jury "should be drawn to any
    weaknesses in the identification evidence". Reference to counselÕs
    arguments is insufficient. The jury must have the benefit of a
    direction which has the authority of the judgeÕs office behind it.
    It follows that the trial judge should isolate and identify for the
    benefit of the jury any matter of significance which may reasonably
    be regarded as undermining the reliability of the identification
    evidence." (at 561-2; case citations omitted)

17. This was a classic identification case, with the added potential weaknesses inherent in a photographic line-up, and it was most important that the summing up should direct the juryÕs attention to any inconsistencies or contradictions or inadequacies in the identification evidence as well as explain to them the danger of relying on this kind of evidence.

18. I have read the summing up with counselÕs submissions in mind. It is not practicable to set out verbatim all the passages that were the subject of criticism. His Honour gave the jury a general warning in conventional terms and told them that they should be especially cautious before accepting the identification evidence as correct. He pointed out that the same difficulties may have affected all of the witnesses. He added to his general warning about personal identification a warning about photographic identification in particular, and he explained why that sort of identification is less satisfactory than a personal line-up. He told them to consider the case against each accused separately. Then, obviously mindful of Domican, he drew the juryÕs attention to the sort of things - distance, lighting, personal features and so on - that will bear upon a witnessÕ reliability in this respect. He told them that the dock identifications were of almost no use in this case. Descriptions of assailants given after an identification had been made were of far less significance than descriptions given beforehand, and the Judge drew attention to the victimsÕ original descriptions of their alleged attackers that were in evidence. Then his Honour examined the evidence in the trial including the viewing conditions and other circumstances that could affect the soundness of the purported identifications. The treatment of some of the topics was allusive or unexhaustive, doubtless in the realization that counsel had just been addressing the jury on the same topics at considerable length, but there was nothing wrong with that provided that, as happened, the juryÕs attention was drawn to the relevant weaknesses and no significant matter was overlooked. The Judge told the jury that it was not enough to be satisfied that an accused person was in the hotel - they had to be satisfied as to the identity of the attackers outside. He reminded them of the cross-examination of Peter Sarvanidis on his previous statements to the police and he read out some of that cross-examination. In a few instances his Honour referred to counselÕs submissions on a particular aspect of the evidence but these occasions were exceptional and, in my view, did not detract from the overall impact of the directions which the jury would have understood very clearly to have the authority of the Judge behind them. There was no inaccuracy or deficiency in the JudgeÕs treatment of the interrelation of the identification evidence from the three victims - that the same difficulties may have affected all witnesses but that they were entitled to consider whether the evidence of one witness was supported or contradicted by another. This was not a case like Pitkin v The Queen (1995) 69 ALJR 612 which involved the linguistic ambiguity of terms such as "similar". I reject the submission that the Judge was obliged to give the jury a corroboration warning, or to say that the evidence of one identification witness could not be used in this particular case to support the identification of another, or to say more than he did about the evidence of the identification witnesses. It will always be possible in an appeal of this kind to say that the trial judge could have said more to the jury about this or that aspect of the evidence - Clark complains that the Judge did not say enough about the weaknesses in the prosecution claim that he was outside the hotel as well as inside, and Greatbatch says that the discussion of the evidence identifying him was deficient - but that is not the test. In my opinion, the attack on the identification directions must fail.

The common purpose evidence 19. The prosecution case was that all of the men who followed the victims to the door were acting with a common purpose so that all were guilty of the assaults that one or more of them physically perpetrated. All of the appellants criticize the common purpose directions, including what was said about the elements of intention with respect to the different kinds of assault charged in the information and the learned JudgeÕs error (so it was said) in treating the staring incident as evidence of a common purpose on the part of the starer and his companions.

20. The doctrine of common purpose was at the forefront of the prosecution case. They had an alternative position - that three of the appellants were proved to have been individually and directly involved in at least one assault - but there could be no question of all of the accused being convicted unless the jury accepted the CrownÕs common purpose argument. It was therefore necessary that the jury should understand clearly what the doctrine meant and what evidence there was to support its application against the individual appellants in this case. The subject occupied a substantial part of the summing up.

21. The jury was given some early guidance on common purpose, not just in prosecuting counselÕs opening address but in a response that the learned trial Judge made during the trial when the jury asked the Judge whether they were to determine the guilt or otherwise of each of the accused individually, or collectively as a group. In the summing up the Judge said,
    "The prosecution case is that these four accused decided, whether
    on the spur of the moment or not, to move out of the hotel as the
    three alleged victims were moving out and to give them a severe
    beating. The law is that if two or more persons act together in
    pursuance of a common, unlawful purpose, every act done in
    furtherance of that purpose by one of them is in law done by all of
    them. They are all guilty of the resulting crime as long as that
    crime was in the contemplation of them all."

22. His Honour then used the familiar illustration of the bank robbery to explain what he meant by common purpose. He gave them directions about the ingredients of the two different offences charged on the information, dealing as he did so with the possibilities of common purpose or direct participation with respect to both actions and intentions. He told them that it was a matter of looking at the circumstantial evidence.
    "The Crown is saying you look at all these events, you look at the
    alleged glares, the statement alleged to be made by Brenton White
    and so on and the movement out straight away. You combine those
    and you ask yourself whether at the end of the matter you are
    satisfied beyond reasonable doubt that these people were working as
    part of a common purpose to commit offences which took place
    outside."

23. He gave the jury a circumstantial evidence direction on this aspect of the matter and then took them to the basic features of the Crown case - the juxtaposition of the two groups in the bar, the aggressive staring on the part of one of those at the table followed by his speaking to Peter Sarvanidis and asking him what he was laughing at, the decision on the part of the victims to leave quickly and their being followed immediately by all four accused and being assaulted in the doorway and just outside the hotel. His Honour said -
    "Ladies and gentlemen, on the Crown argument if you look at all of
    this evidence, it is said to support the proposition that each of
    these men was party to an understanding that the three victims
    would be assaulted, an understanding that was reached at least as
    the three victims headed for the exit.

According to the Crown case it was no coincidence, in effect, that
    these four men arose immediately and followed the three, if you
    accept the evidence that I have just mentionedÉ"

24. Then his Honour dealt at length with the photographic identification evidence. He returned to the events inside the hotel including the glaring incidents.
    "If you accept that the glaring took place, along with the remarks
    to Peter, then you will consider the prosecution argument that
    there is an obvious connection between these incidents and what
    took place outside the hotel and just before the victims went
    outside. Does it strain coincidence to say that the incidents
    outside arose for reasons quite unconnected with this exchange
    which is alleged to have taken place not long before inside the
    hotel?"

25. His Honour then went into the evidence again and in the course of doing so said -
    "I have told you, ladies and gentlemen, that mere presence at an
    incident does not make a person part of a common purpose or
    implicate him in any way in the offence. But you do have to
    consider, if you do find that a particular accused was present
    outside, whether on all the evidence this was more than mere
    presence on the part of the accused and whether the prosecution has
    established a common purpose by reason of not just the question of
    presence outside but also the events which took place beforehand."

26. Mr Abbott submitted that the learned trial Judge erred in admitting the evidence of the alleged staring in the hotel as evidence against all of the accused for the purpose of proving their participation in the alleged common purpose, when it could not even have been used for that purpose against the alleged starer. The Judge, however, compounded his error by directing the jury to use the evidence of the staring as the starting point for finding that all of the accused participated in the common purpose. We were taken to the standard authorities on the doctrine of common purpose, Tripodi v The Queen (1961) 104 CLR
1 and Ahern v The Queen (1988) 165 CLR 87, to support the argument that there was no reasonable basis upon which the evidence of the staring or of any words spoken by the person who approached the victims could be treated as common purpose evidence that implicated the other persons seated at the table. There was simply no evidence of any common purpose being pursued prior to the men at the table getting to their feet and following the victims to the door.In my opinion, the argument is misconceived. The Crown case was that, when the victims went to leave the hotel, the actions of the five men at the table, in rising immediately as one man and pursuing the victims to the door where they were savagely beaten, was evidence of a common purpose on their part to assault them that must have been formed not later than the time when they got to their feet. No doubt it could have been formed, at least conditionally, before that but there was no evidence that any joint decision (if that is what it was) was made earlier than the simultaneous physical movement. The CrownÕs case for a sinister interpretation of what the men did together, including the agreement it was said to evidence, would have been weaker had it not been possible to point to a motive or reason for such extreme behaviour. The explanation, it said, was to be found, however inadequate it might appear to most people, in the hostility to the victims evinced during the afternoon, and in particular just before their departure, by Brenton White and to a lesser extent by the tall man the Crown says was Greatbatch. That made the starerÕs hostile behaviour - his actions and words - relevant and important evidence against the appellants as affording an intelligible explanation for the assaults alleged against them. That, as I understand it, is all that the learned Judge was saying to the jury in the passages to which exception has been taken. That did not mean that any such common purpose must have been formed prior to the victimsÕ movement towards the door. It may have been but, as I say, the evidence does not permit a conclusion to be drawn about that, just as it does not disclose what on this hypothesis actually triggered the menÕs movement - a nod or a word from one of them, or a prior discussion, or an established routine or understanding for this sort of situation or something else. Nor does the reception of the staring evidence imply that the other men necessarily knew about it at the time; still less that they were, without more, in some way bound or prejudiced by the actions or words of one of their number. What made the evidence relevant to this trial was the subsequent behaviour of the group. It gave meaning to the common purpose evidence although it did not itself form part of that evidence. The evidence of the starerÕs actions and words was thus relevant and admissible against all of the appellants. The learned JudgeÕs directions on the subject were consistent with the limited purpose that I have explained, and I see no reason to think that the jury would have understood the directions in any other way.I think the staring evidence was also admissible, as Mr Brebner for the Crown submitted, as explanatory of the victimsÕ evidence that they noticed the features of this man in the hotel and so making more plausible their identification of him and their placing him at the doorway as well. There was no objection to this evidence at the trial.

27. Mrs Shaw submitted that the summing up did not identify to the jury the evidence upon which the jury could find that Robert White was a party to the alleged common purpose. The trial Judge did not distinguish in this respect the two kinds of assault alleged in the information. Nor, it was said, did he direct the jury as to the use that could or could not be made of any evidence as to Robert WhiteÕs presence inside the hotel. However, when the learned Judge explained to the jury the elements of the two offences charged in the information, including the respective states of mind to be proved, he related his direction to the alternative possibilities of an accused, if implicated, being the actual perpetrator or being involved by way of common purpose. His HonourÕs summary of what he called "the basic features of the Crown case" explained adequately the common purpose case presented against all of the appellants, including Robert White. The sufficiency of the evidence that put Robert White at the table and then in the hostile movement towards the door and, indeed, probably implicated him directly in the blow to Stratis NikolakakosÕs head were all dealt with explicitly by the Judge in his jury charge. The case for the common purpose alleged against all of the appellants was in truth a simple one - that in all the circumstances their getting to their feet in unison and their pursuing the victims to the doorway as a group and the assaults that followed were only explicable on the footing of a common purpose to carry out those assaults. There is no reason to think that the jury did not understand that, as well as the critical need to prove, even on that hypothesis, that Robert White had been in the hotel and was one of those who pursued the victims to the door. The grounds of appeal that are based on the common purpose directions cannot succeed.

Unsafe or unsatisfactory? 28. Finally, in the common grounds of appeal, it is said that the verdicts were unsafe and unsatisfactory and should not be allowed to stand. Counsel for the most part relied upon the nature and quality of the identification evidence, taken together with the matters complained of in the other grounds of appeal. It was also put on behalf of Clark that he was not shown to have had any interaction with the victims inside the hotel and that no-one claimed to have seen him hit anyone outside, and for Greatbatch that he was identified by only one of the victims.

29. I have read the evidence and made my own assessment of it with the test in M v The Queen (1994) 181 CLR 487 in mind.

30. I shall consider first the verdicts entered against Clark and Brenton White and Robert White. It is convenient to summarize the identification evidence again. Peter Sarvanidis, relying on the photographs, said that he saw these three appellants inside the hotel, that they were among the five men who followed him and his companions to the door, that he saw Robert White king hit Stratis (although perhaps he modified that in cross-examination by saying that it "seemed to be" Robert WhiteÕs arm), that he saw Clark outside and that Brenton White (whom he identified as the starer) kicked the witness and also kicked his brother. Tom Sarvanidis identified Brenton White as the starer and said that Clark was also inside. Stratis Nikolakakos said that Brenton White was the starer and that he saw Robert White and Clark inside, the latter being the person to whom he spoke as they were leaving the lavatory together. Stratis also said that he was hit on the head by Robert White, although he described what happened as a blur and conceded that he was possibly mistaken. Notwithstanding the inherent weaknesses of photographic identifications and the problems disclosed in these particular identifications, including a comparison with the descriptions the victims gave to the police and the possibility that multiple identifications may be the product of the photographic limitations, and allowing for the brevity of the doorway episode, I think it significant in this case that all three victims picked out ClarkÕs and Brenton WhiteÕs photographs and that two of them picked out Robert WhiteÕs and that it turned out that all three were members of the Finks Motor Cycle Club (although I bear in mind that the trial evidence did not show how many of the two hundred and fifty photographs were of Finks members). There was no evidence that any of the victims had seen the appellants before this day. Peter said to Detective Jenkins two days after the event, of the man he later identified as Robert White -"His whole body looked pumped up as if he had been using weights too muchÉhis hands were permanently open and looked like he couldnÕt close them because of the weights."Jenkins said at the trial that, when he arrested Robert White on June 14, it was obvious to him that White was a weight-lifter or a person who spent a lot of time in the gym, that he could not make a fist, and that it looked impossible for him to close his hands right up into a fist because of his weight-lifting build. That was important evidence. There was plainly a case for three appellants to answer and the jury was entitled in the circumstances to take into account the fact that they did not make an answer, so that the evidence of the victims implicating the accused was uncontradicted. The circumstances of the attack and its nature and savagery justified the conclusion that all those who went after the victims joined by way of common purpose in the aggravated assault alleged in the first count as well as in the two lesser offences. In my opinion, it was open to the jury to be satisfied beyond reasonable doubt that Clark, Brenton White and Robert White were guilty of the offences charged against them.

31. GreatbatchÕs situation is different. Only Peter Savranidis claimed to have identified him. He said that Greatbatch was the tall man who joined the table not long before the trouble broke out. There was therefore less opportunity for the victims to observe this man although Peter said that the man was standing directly behind Brenton White when White spoke to the witness aggressively and he also said that he saw this person at very close quarters during the struggle aside. There are marked discrepancies between GreatbatchÕs actual appearance and the description of the latecomer that Peter gave Jenkins on 23 April 1995. He is reported to have said that this man was "really tall, about six foot five inchesÉI think he was clean shaven but I am not sure. He looked like a Greek but with a white complexion. His skin had no hair on itÉHe was wearing a white tank top and black tight jeans." In fact Greatbatch is about six feet in height and was wearing a small goatee beard at the time. Peter had an explanation for the discrepancies. Perhaps he was misunderstood or misreported, as he claimed, and in any event some allowance may be made for the continuing effects on April 23 of the severe beating he had suffered two days earlier. However, the discrepancies are important in a case where he is the only one who has identified Greatbatch. More important, perhaps, is his evidence that the tall man had no tattoos, because the tall man was wearing a tank top and it is tolerably clear on the evidence that GreatbatchÕs chest and shoulders and arms are prominently tattooed and that this would be apparent when he is wearing a tank top. In his evidence Peter said of the tall man that "his eyebrows looked like they connected on top", but that does not seem to accord with GreatbatchÕs appearance as shown in the photograph P12. There is an inclination in this kind of situation for a court to assume too readily, I think, where there is a discrepancy between a description of someone and the actual features of a person later purportedly recognized in a photograph or face to face, that the description is the more reliable indicator of the suspectÕs appearance so that the accuracy of the identification is necessarily undermined. Obviously that will sometimes be the case, but it also accords with human experience that a witness can take part in a visual or photographic line-up and say, "Of course, thatÕs the man. I was wrong when I said he had black hair etc." and be shown by other evidence to be making a correct identification. However, when every allowance is made for that possibility here - and this must have been the way the jury saw the matter - I am left with the conviction that the divergences between description and actuality in GreatbatchÕs case, coupled with the circumstance that the other two victims could not identify his photograph although their opportunity to note the tall manÕs features on the day may not have been much inferior to PeterÕs, make this verdict unsafe. I would therefore allow GreatbatchÕs appeal and set aside his conviction.

32. I should say that in reaching that conclusion I have not had regard to the evidence that Mr Scott gave in support of Robert WhiteÕs appeal. ScottÕs evidence put Greatbatch inside the hotel that afternoon. Scott also said that he saw Greatbatch outside the hotel at one stage pulling people off one another. There is also evidence in the appeal that Greatbatch is no longer a member of the Finks Motor Cycle Club and it may be that he is no longer on friendly terms with his former colleagues. Mr Brebner did not suggest that we could take ScottÕs evidence into account in determining whether GreatbatchÕs conviction was unsafe or unsatisfactory - as to that, cf R v Gilfoyle (1996) 3 All ER 883 at 898 ff. - and at any rate, whatever the legal position may be, I have not sufficient confidence in ScottÕs evidence to give it any weight in my consideration of GreatbatchÕs appeal.

Alleged mismanagement of defence - Robert White 33. I turn now to the uncalled evidence ground put forward by Robert White and in effect adopted by Clark in his supplementary ground of appeal. Robert WhiteÕs additional ground of appeal reads -
    "The fair trial of the appellant Robert White miscarried as a
    result of:-

(1) the appellantÕs solicitor acted for both the appellant Robert
    White and for the appellant Brenton White in circumstances where
    there was a conflict of interest between his two clients;

(2) the appellant Robert White did not receive informed and/or
    independent advice in relation to the conduct of his case, the
    giving of evidence and the calling of witnesses on his behalf;

(3) the appellantÕs counsel failed to adequately put the appellant
    Robert WhiteÕs defence to the Crown witnesses at the trial;(4) the
    appellantÕs solicitor and/or counsel failed to make proper
    enquiries as to the availability of witnesses who could be called
    on behalf of the appellant Robert White and/or alternatively to
    call available witnesses."

34. There were filed in support of that ground affidavits from Glen Louie Scott, Christopher William Corbett and the appellant himself. Clark picked this up in his supplementary ground of appeal (described by his counsel as "opportunistic") as follows -
    "The verdict is unsafe and unsatisfactory and represents a
    substantial miscarriage of justice having regard to the fresh
    evidence contained in the affidavit of Glen Louie Scott and the
    appellant Matthew William Clark."

35. Mr CorbettÕs affidavit gave Robert White an alibi. He said that he was with the appellant at the clubhouse of the Finks Motor Cycle Club at Thebarton for the whole of the afternoon of 21 April 1995. He had expected to be called as a witness at the trial but was not. Mr Scott said in his affidavit that he was at the Brompton Park Hotel that afternoon. He arrived between 1.00 and 1.30. He saw Greatbatch and Clark and Brenton White there but he did not see Robert White. He sat with Brenton White and Greatbatch and others. Scott said he went outside to work on his motorbike. While he was there he had a verbal exchange and then a fight with someone who walked into his motorbike. He was fighting with this person and others who were with him and he received injuries which dazed him and later required butterfly stitches. He recalled being on the ground with a number of people hitting him on the head and the body. Brenton White helped him to his feet. He saw Greatbatch across the road pulling people off one another. He went home and had his injuries attended to. He did not see Clark during the fight. He did not see him at the hotel after about 3 to 3.30. Scott said that his nickname was "Ox" and he was a nominee of the Finks Motor Cycle Club. He had been asked by Robert White to attend court on the last day of the trial and he went there but he was not called into the courtroom.

36. Robert WhiteÕs affidavit described his attending the office of his solicitor, Mr Patsouris, with Corbett. He told Patsouris that Corbett had been with him on the day of the offence. Patsouris did not take a statement from Corbett or give the appellant an alibi notice or say anything about the alibi notice procedure. Before the committal was finalized the appellant saw Patsouris, together with Brenton White and Greatbatch, and the three of them saw Patsouris again after the committal. He reiterated to Patsouris that he was with Corbett on the Friday and not at the hotel. About this time he learned about Scott and he told Patsouris that Scott could give him an alibi, and later he said this to his counsel, Mr Moffa, as well. He told Moffa about Corbett. Moffa informed him that no other accused would be giving evidence and that it was not in his best interests to give evidence as he would stand out, so he decided not to give evidence. Moffa told him that if they did not win they would run a retrial. Notwithstanding this advice the appellant arranged for Scott to be present on the last day of the trial. The appellant saw Moffa and Patsouris at court that day and told them that Scott was coming to give evidence. After the verdict he instructed new solicitors.

37. In a second affidavit Robert White reiterated that his instructions to both Patsouris and Moffa were that he wanted Corbett called as a witness. However, Moffa advised him not to call Corbett because no-one else was giving evidence and CorbettÕs evidence would look fabricated. The appellant accepted MoffaÕs advice. He did not at first instruct either Patsouris or Moffa to call Scott as a witness, but during the course of the trial he was identified by Peter Sarvanidis as a person involved in the incident and he thereupon told both Patsouris and Moffa that he wanted Scott called. They demurred but he insisted and he made arrangements for Scott to be there. Although the appellant did not himself give evidence he believed that this did not preclude him from calling other witnesses. Furthermore, he took his memberÕs jacket, showing his club colours, to court so that Moffa could put it to the Crown witnesses to show that the colours were significantly different from the colours worn by nominees, but Moffa failed to put his colours to Crown witnesses. His affidavit described the physical similarities between himself and Scott at the relevant time.

38. There were also affidavits from Mr Caldicott, the solicitor who was instructed by Robert White to handle his appeal. They exhibited correspondence between Caldicott and Patsouris in an attempt to get PatsourisÕ response to the affidavit material that I have described. Patsouris replied with a letter setting out his version of the matter and enclosing two pages of handwritten instructions taken from Robert White shortly before the trial and referring Caldicott to Moffa whom he had instructed shortly before the trial to act as counsel for the appellant. Evidently Caldicott sent Patsouris a draft form of affidavit for use in the appeal, for in a subsequent letter Patsouris said that he did not propose to make an affidavit in the form of the draft "since my recollection of some of the important issues raised by your client is different to that stated in the affidavit." Caldicott also sent copies of the documents to Moffa but there was a problem because Moffa was overseas at the time and did not return until a few days before the appeal was due to be heard. When the appeal was called on there was no indication of when, if at all, any response from Moffa might be made.

39. The matter of evidence was discussed at the outset of the appeal. It seemed to the Court that it would be most unsatisfactory if it had to make decisions about the issues raised by the additional grounds of appeal without having before it the considered and comprehensive responses of the solicitor and barrister whose management of Robert WhiteÕs defence was being called in question. As none of the parties had any proposal to make about the obtaining of further information or evidence from those men, the Court took the initiative of asking them directly for reports on the issues raised in the affidavits. This course was supported by Mrs Shaw, for Robert White, who informed us that her client made the necessary waiver of professional privilege. No waiver was made by Greatbatch or Brenton White, the other appellants for whom Patsouris acted at one stage or another.

40. Written reports were thereupon provided to the Court by both Patsouris and Moffa. They disclosed disagreements in important respects with the version of events given in the affidavits which Robert White had tendered on the appeal and which the Court had received de bene esse. By this time the Court, following an application by the Crown, was taking oral evidence from Robert White and the other deponents, and this simply confirmed the critical differences between the material upon which the appellant was relying to have his conviction set aside and the reports made by the two practitioners. It appeared to the Court that there was no alternative to our requiring the practitioners to give oral evidence. Arrangements were therefore made to that end.

41. I should say that Mr Brebner supported our taking that last course but Mrs Shaw was strongly opposed to it. Any differences between the appellantÕs sworn evidence and the reports had to be resolved, she submitted, in favour of the appellant. It was not appropriate to attempt to supplement the reports with sworn evidence. We did not accept that submission.

42. The following morning Mr Clayton QC (with Mr Edwardson) and Mr Cameron appeared to make submissions on behalf of Patsouris and Moffa respectively. Moffa had no objection to giving oral evidence but Mr Clayton, while indicating his clientÕs willingness to cooperate as shown by his making the report that the Court had requested, submitted that the request itself was an irregularity and that cross-examination on it should not be required. His argument was that a criminal appeal is an adversarial procedure and that the Court should not take any initiative when it comes to obtaining evidence. Section 359 of the Criminal LawConsolidation Act, it was said, does not alter this fundamental position. Faced with the circumstance that by this time the Court, rightly or wrongly, had a report from Patsouris, it was submitted that that should be the end of the matter. Any question of the reportÕs accuracy should be treated as unexaminable, rather as a trial judgeÕs report has generally been regarded under s358 of the Act. The procedure that was being followed or threatened in this appeal created an alarming prospect for the profession and appeared to be without precedent. We were referred to the decision of the Federal Court in Williams v Official Trustee in Bankruptcy (1994) 122 ALR 585 which dealt with a fresh evidence application to set aside a trial judgeÕs decision in a proof of debt issue in a bankruptcy. Mr Brebner, for the Crown, put an opposing argument about the scope of s359.

43. In my opinion Mr ClaytonÕs general argument is untenable. It is understandable that a solicitor should find it uncongenial to have to explain and perhaps defend his conduct and advice in handling his clientÕs defence to a criminal prosecution, but if that becomes an important issue on an appeal then his involvement in the appeal, at least as a report maker and possibly as a witness, may be practically unavoidable. There is nothing new about that. See R v Perry and Harvey (1909) 2 Cr.App.R.89, 91. I take three recent examples from different jurisdictions. In The Queen v Armstrong (1983) 35 SASR 356 an appeal to this Court by a man convicted of murder was based upon the alleged mismanagement of his case by trial counsel. There was a question whether his counsel had stopped him from going into the witness box. The applicant gave evidence on the appeal and the Crown called his trial counsel and a number of solicitors who had been involved in the matter. The Court in its judgment made findings about counselÕs credibility. In the recent Victorian case of The Queen v Miletic (9 August 1996, unreported) the applicant contended that his trial had miscarried by reason of certain decisions that his counsel had made during its course. The Court of Appeal adjourned the hearing and directed that the material upon which the applicant relied be brought to the attention of trial counsel so that he might have the opportunity to place such material before the Court as he thought fit. Trial counsel later swore an affidavit that dealt with the "forensic failures" that he was alleged to have committed. The applicant then abandoned two of his complaints and it appears that there was no substantial conflict of fact with respect to the others. Thirdly, there is the recent English case of R v Gilfoyle, supra. That was a fresh evidence appeal in which the appellant said that the explanation for the failure to call important evidence at the trial was a gross misjudgment by the appellantÕs trial counsel, Mr Turner QC. The reasons for judgment of the Court of Appeal record that, "in accordance with usual practice, a statement had been obtained from Mr Turner asking for his comments on the criticisms of his conduct of the defence" (at 895). It is not entirely clear whether the report was obtained at the instigation of the applicant or of the Court itself. The witnesses called on the appeal did not include Mr Turner. His report appears to have dealt with matters of judgment rather than issues of fact. That was also the position in Reg v Ensor (1989) 1 WLR 497.

44. I had no doubt, then, that the Court was acting within its powers when it asked Patsouris and Moffa to provide reports about their conduct of the appellantÕs defence. I thought at the time that the request, and any possibility of the practitioner being required to give oral evidence, could be supported by the inherent power of the Court to require the assistance in a matter such as this of one of its officers. I have not found it necessary to pursue that question to a considered conclusion because, now that we have heard the matter argued, I am of the opinion that it falls within the scope of s359 of the Criminal LawConsolidation Act. The relevant part of the section reads -
    "For the purposes of this Act, the Full Court may, if it thinks
    necessary or expedient in the interests of justice -
    (a) É
    (b) order any witnesses who would have been compellable witnesses
    at the trial to attend and be examined before the Court, whether
    they were or were not called at the trial É;
    (c) receive the evidence, if tendered, of any witness (including
    the appellant) who is a competent but not compellable witness, and,
    if the appellant consents, of the husband or wife of the appellant
    in cases where the evidence of the husband or wife could not have
    been given at the trial except with such consent;É"

45. Statutory powers of this sort should be interpreted liberally in the interests of justice. Notwithstanding Mr ClaytonÕs submission to the contrary, I think that the reference to "compellable witnesses at the trial" in par(b) is probably intended to exclude only close relatives and co-defendants. Patsouris and Moffa would have been compellable witnesses, technically speaking, at the trial although it is unlikely that any questions relevant to the issues in the trial could properly have been put to them. There was some discussion about s359 in R v Van Beelen (No. 2) (1973) 7 SASR 117, at 180-192. In Gilfoyle the Court of Appeal had to consider subs(1) of s23 of the Criminal Appeal Act 1968 (U.K.) which substantially reproduces s9(1) of the Criminal Appeal Act 1907 (U.K.) and is therefore substantially the same as our s359. The question in Gilfoyle was whether under s23(1) of the 1968 Act the Court hearing a criminal appeal had power to receive relevant and admissible evidence of its own initiative and the Court, contrary to the submission of the appellant in that case, answered that question in the affirmative. See pages 897ff of the judgment. The procedure in a criminal trial is adversarial, not inquisitorial, and the procedure on an appeal is generally the same. However, it is not so rigid, in my view, as to prevent the Court from exercising its powers under s359 on its own motion if it thinks it necessary to do so in order to do justice in the case before it. As the reported cases show, one or other of the parties to the appeal will often have obtained an affidavit from the solicitor or counsel concerned and, where there is no resistance from the practitioner, one of the parties will call the practitioner to give evidence and the Court will receive the evidence under par(c) of s359. Presumably that is what happened in Armstrong. In the present case the attempt by Mr Caldicott to get affidavits failed and neither side tendered evidence from Patsouris or Moffa under par(c). In the circumstances the Court would have been justified, in my opinion, in taking the exceptional course, if necessary, of ordering the practitioners to attend and be examined before the Court under par(b), and that, for practical purposes, is what happened. In fact no actual order was necessary. The practitioners already knew what claims the appellant was making - they had the transcript of evidence taken on the appeal as well as the material that Caldicott had sent them - and nothing would have been gained in this case by following the usual procedure under Rule 8 of the Criminal Appeal Rules. (The Court has power under Rule 21 to dispense with compliance with the Rules in a proper case.) The Court was anxious to avoid any interruption in the hearing that may have followed the making of formal orders. Mr Clayton made it clear that his client wished to cooperate with the Court, and I took that to mean that if the Court should be generally against his submission and if his client could expect that any questions would generally be confined to the matters of which he had already been made aware, then he would not object that the s359 procedures had not been followed to the letter in his case. We indicated that we were satisfied that the Court had power to require the attendance of any relevant witness, including Patsouris and Moffa, and the practitioners thereupon gave sworn evidence. They testified to the accuracy of their respective reports. Mr Brebner asked them some supplementary questions and Mrs Shaw cross-examined them. We refused applications by Mr Clayton and Mr Cameron to appear for the practitioners while they were giving their evidence. There seemed to be no good reason for treating them in this respect any differently from other witnesses.

46. I should add that, in my opinion, Mr Caldicott followed the correct procedure here, and ordinarily one would expect that a practitioner, once professional privilege has been waived, will make an appropriate report or affidavit when requested by an appellant to do so. It should not usually be necessary for the Court to use its coercive powers under s359.

47. It goes without saying that the contents of any report or affidavit, as with a practitionerÕs oral evidence, will be subject to such constraints as relevance and legal professional privilege. Usually the latter will have been waived, so far as he or she is concerned, by the appellant.

48. I turn to what may be described compendiously as the mismanagement evidence. The following persons gave oral evidence, in most cases by way of cross- examination on their affidavits or reports - the appellant Robert White, Scott, Corbett, the appellant Clark, Patsouris, Moffa, Caldicott and Jenkins. The evidence ran to about 350 pages, in addition to the affidavits, so it is not practicable to give more than a brief summary of it.

49. Robert WhiteÕs oral evidence amplified his affidavit. He told Patsouris at the outset that he was not at the hotel and that Corbett could give him an alibi. Later he told him about Scott as well. He told Moffa about Corbett but Moffa advised against calling him. After the appellant had been identified in the trial he said he wanted Scott called. He showed Moffa his memberÕs jacket because it was significantly different from a nomineeÕs jacket. All four accused decided at the trial that, because of the advice they had had, they would not give evidence, but Robert White thought that was bad advice. Moffa said that if they had brought Scott in he would only get charged too, but he told Moffa not to worry about that. He arranged for Scott to be at the courthouse. He did not try to get Corbett along because he thought one witness would do. He gave signed instructions to his counsel that he did not want to give evidence but he thought that meant "me not making a statement, like now". He was pretty sure that he told Moffa on the last day that Scott was at the courthouse and that he pointed him out on that occasion to Patsouris and said he wanted him called.

50. The appellant was recalled after the practitionersÕ reports had been received. He said he never told Moffa not to call Scott and did not tell him that Scott was not prepared to give evidence. He did not say that he did not want his jacket to go into evidence. He stood next to Scott outside the courtroom so that jurors entering the courtroom could see the two men together and make a comparison. Moffa did not say that if he gave evidence he should call Corbett as well but that if he did not give evidence he should not call Corbett. He did sign a statement that he elected not to give evidence but he thought that meant he was electing not to make a statement from the dock as he had done at a trial in Sydney. His going into the witness box was never discussed with counsel. He did discuss the subject with his co-accused and the decision was to go with the advice of Ms Vanstone QC (counsel for Brenton White), namely, that none of them would go into the witness box, and it was also agreed reluctantly that none of them would make a statement from the dock. However, he thought that his counsel could still call witnesses and would make use of his jacket and make comparisons with tattoos and the like.

51. Scott in evidence described the incident outside the hotel in which four people attacked him on April 21. That was before he saw his companions come out of the hotel. While he was still inside the hotel he had seen the appellant Clark leaving. He attended the courthouse on the last day of the trial in order to give evidence and he spoke to Robert White. He waited around for half an hour or so and then went home. There was no discussion at the clubhouse about the hotel incident.

52. Corbett said that Robert White was at the clubrooms with him on the Friday afternoon. He had been in his company all day. He has been a member of the Finks club for three years. He was not aware of any discussion at the clubhouse on the Friday night of anything happening at the Brompton Park Hotel. The first time he knew about that was at the Magistrates Court. He went to PatsourisÕs office to make an alibi statement but Patsouris did not speak to him. He did not go to the trial court or speak to Moffa.

53. The appellant Clark gave evidence. He said he was at the hotel on the Friday afternoon but was not always with the Finks group. He left with a man named James and went to the Finks clubrooms. That was about 3.30. He saw Robert White there. Nothing untoward happened at the hotel while he was there. He heard that night that there had been a bit of trouble at the hotel. He told Caldicott about James and arranged for him to be at court but his counsel, Mr Ibbotson, said that if he (Clark) did not give evidence James could not give evidence. He did not hear any talk around the clubrooms about Scott being beaten up at the hotel that afternoon.

54. Patsouris in evidence said that he was consulted by Robert White about his bail and later he took instructions from him about the police allegations. The appellant said that he was not at the hotel. The appellant never mentioned Scott or Corbett to him. He did not mention any alibi witness. He did say that he had been mistaken for someone else but he did not identify the other person. Patsouris advised him to give evidence on oath at his trial. He briefed Mr Sampson to appear for the appellant but Sampson became ill and Patsouris briefed Moffa about 21 March 1996. The trial began the following week. He was not involved in any conferences between Moffa and the appellant. In cross-examination Patsouris agreed that his notes were not as extensive as they might be. Had the appellant told him at his office that Scott was outside and could provide him with an alibi, he would have noted that, and he made no such note. He acted for a number of Finks clients and with them it was always a matter of, "DonÕt ask too many questions." He agreed that he did not understand properly the Criminal LawConsolidation Act provision (s285c) about alibi notices. He thought that the notice was not required where the accused was the only alibi witness. He expected Moffa to take the running of the case. In his experience it was not uncommon for counsel to take instructions direct from the lay client. He expected that Moffa would do what he thought necessary to supplement his instructions including referring back to him if necessary. Moffa did not ask him to do anything during the trial. As for the appellant not telling him who could support his alibi defence, "They tell you what they want you to know - you can only ask so many times."

55. Moffa said in evidence that he was retained on a Thursday for a trial starting the following Monday. It was a slim brief. He read the papers he had and saw Robert White on the Saturday morning. His instructions from the appellant were that he was not at the hotel and that he had alibi witnesses. No alibi notice had been filed so he told the appellant that this made him liable to an adverse comment in the Crown address. The appellant said that he had been mistaken for a nominee member of the Finks called Scott, but he also said that Scott was not prepared to give evidence and that he was not to be called. His instructions were to conduct the trial on the basis that Robert White was not there, so that the Crown witnesses were mistaken, but not to suggest that the appellant had been mistaken specifically for Scott. In essence he was to submit that the case against his client could not be proved beyond reasonable doubt. He was never told by the appellant that Scott would be attending court and he was never introduced to Scott or made aware of his being at the courthouse. He was told about Corbett. His advice was that if the appellant gave evidence on oath then Corbett should be called to support his alibi, but that if the appellant decided not to give evidence on oath Corbett should not be called because that would not look too good in the eyes of the jury. He advised his client of his right to give evidence on oath and his right to remain silent, and explained to him that if he gave evidence he would be cross-examined. The appellant was firm in his decision not to give evidence. He made that clear on the Saturday morning and he confirmed it on the Monday when he said that he had spoken to the other accused and they were not proposing to give evidence. The appellant brought his jacket to MoffaÕs chambers on the Monday. He wanted the differences between a memberÕs and a nomineeÕs dress brought out in evidence, but on being told that this might result in the jacket being tendered as an exhibit he made it clear that he did not want to lose possession of the jacket, so Moffa did not show it to any of the Crown witnesses. Moffa approached Detective Jenkins during the trial and said that the police had charged the wrong man and he described JenkinsÕ response. Moffa said that he was not introduced to Scott at the courthouse; nor was Scott pointed out to him. It was the same with Corbett. In cross-examination he said that the appellant told him about ScottÕs appearance and that they could be mistaken for one another. Because of his instructions he was uneasy about using ScottÕs name in court. It did not occur to him to call evidence to show that Scott looked like the appellant. As for the appellant giving evidence, he explained the options to the appellant but did not give him advice - in accordance with his general practice - he did not want to sway his client. The appellant did not say, after Peter Sarvanidis had identified him in evidence, that they would have to call Scott. As for a magazine that the appellant showed him with photographs of the appellant wearing his club colours, he would have given his client the unmistakable impression that it should not be used in evidence, because of the general tone of the magazine including the nude photographs it contained, and the appellant appeared to accept that advice. He did not get Scott in to see him because that would have been contrary to his instructions.

56. Detective Jenkins said that he had discussions with Moffa about Scott. Moffa was saying that the police had got the wrong man.

57. This, then, in outline - I have not included every detail - is the material upon which, together with the trial evidence, the appellant Robert White says that his convictions should be set aside because his case was mismanaged by Patsouris and Moffa.

58. While the appellant called evidence on the appeal this was not really a fresh evidence case. The evidence was known to Robert White at the time of the trial and the witnesses were available. The evidence could therefore, with reasonable diligence, have been produced. What was submitted to us was that the evidence was not put before the jury because of the neglect or misjudgment of the lawyers.

59. The Court will allow an appeal against conviction if it satisfied that the appellantÕs defence was so mismanaged as to result in a miscarriage of justice. The principles upon which the Court acts were discussed in the recent cases of R v Oliverio (1993) 61 SASR 354 and R v Scott (1996) 185 LSJS 436. In each case the Court adopted the following passage from the judgment of Gleeson CJ in Birks v R
(1990) 19 NSWLR 677, at 685-
    "(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 error 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 Ôflagrant
    incompetenceÕ 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."

60. In Scott the position was summarized by Doyle CJ as follows -
    "It appears now to be settled that, when it is sought to set aside
    a conviction on the ground that counsel at trial acted
    incompetently or contrary to instructions, the crucial question to
    be argued is not the incompetence of counsel but whether a
    miscarriage of justice resulted at trial. The issue of miscarriage
    of justice has to be considered in the light of the role of
    counsel, the fact that ordinarily the client is bound by the
    decisions of counsel and in the light of the wide discretion which
counsel has as to the conduct of the trial." (185 LSJS at 451)

61. It is necessary to deal first with the evidence. My opinion of the witnesses and my conclusion about the disputed facts are as follows.

62. I accept the evidence of Moffa as truthful and reliable. Patsouris, I thought, was truthful and generally reliable, but he appears to have made few notes or records and his recollection of some matters was hazy. His preparation of Robert WhiteÕs case was quite inadequate. He did not take his client through the witness declarations and his two handwritten pages of instructions, with their paucity of detail, do not inspire complete confidence in his claim that, as the notes are silent on the matter of alibi witnesses, it must be concluded that he asked the appellant whether anyone was with him on the Friday afternoon and the appellant said No. I accept Patsouris as reliable about what happened from the time he briefed Moffa.

63. Both Scott and the appellant Robert White were unimpressive witnesses and I would not accept their evidence where it conflicts with that of Moffa or, with a possible reservation about the early interviews, with Patsouris. What really mattered about CorbettÕs evidence covered a very small compass - the issue is not whether the two men went looking for doors that day but whether they were in the clubrooms from mid-afternoon - and, looking at his evidence in isolation, it is not easy to form a judgment about it. I can say, in anticipation of my conclusion in this matter, that CorbettÕs evidence does not lead me to think that there may have been a miscarriage of justice in this case.

64. I have referred to the question of how much, if anything, Robert White told Patsouris about any possible alibi witnesses. Given that I have not much confidence in PatsourisÕ unaided recollection on this subject and that Robert White did not impress me as a witness of truth, I look to see whether there are any circumstantial evidence indicators and they seem to be conflicting. One would think that any solicitor could hardly fail to ask his client about possible alibi witnesses in this situation and to make a note of the answer, whatever it might be, so that the handwritten instructions in this case should not have been completely silent on the topic. If the appellant was ready to tell Moffa about Corbett and Scott, would he not already have told his solicitor about them? The answer to that might depend on how assiduously Patsouris attempted to prepare the case for trial after the time he took his first instructions and when the appellant decided that he might want to call a witness or witnesses to support his alibi. I accept Patsouris when he says that he has no recollection of having been told about Scott or Corbett before the verdicts were returned, and I am inclined to think also that he was not in fact told about them but I cannot be sure about that. I do not think it necessary to make a firm finding on the subject. I say that because, if Patsouris was neglectful in failing to take full instructions about any alibi evidence, or to record what he was told, it made no difference to the way the defence was run at the trial. PatsourisÕ leaving everything to counsel was quite unsatisfactory and, indeed, put his client at risk but, as it happened, Moffa went through the declarations with the appellant on the Saturday morning before the trial and evidently got full instructions from him and the only error or omission that was irretrievable was the failure to give an alibi notice at the proper time. That did not stop the appellant giving or calling alibi evidence. Besides, the Crown could still have been formally notified then and some of the sting of the expected comment drawn, especially as it could always be said that this was not the sort of alibi evidence that any police investigation, early or late, was likely to impair. At any rate, the evidence we heard does not indicate that the failure to give an alibi notice at the proper time played any part in the way the defence was presented at the trial. It appears that during the trial the appellant was considering calling Scott and Corbett as witnesses but that - possibly because he considered that the jury would not believe them - he decided against it. I am satisfied that he told Moffa not to call Scott and that he did not change those instructions during the course of the trial. The appellant did not tell Moffa that Scott would be attending court, and, if Scott did attend court, Moffa was not made aware of it. Moffa told the appellant of his right to give evidence on oath and his right to remain silent and he explained the consequences in each case. The appellant accepted his counselÕs advice that, if he did not give evidence, it would be unwise to call Corbett because the contrast of his calling a witness but not giving evidence himself was not likely to impress the jury. I think it very unlikely that the appellant believed, at least at the time he was called upon to present his defence, that making an unsworn statement was an option in this State (if that is what he was saying in the witness box). He decided that he would not give evidence and one must conclude that he accepted the advice about Corbett. He said that he did not want to lose his jacket.

65. It is not enough to perceive with the benefit of hindsight that Moffa could have done certain things differently. Perhaps he could have persuaded the appellant to risk letting his jacket become an exhibit. It may have been possible to get in some evidence about ScottÕs appearance even if Scott was not to be called, but the opportunities for doing this in a relevant and admissible way would appear to have been limited. Simply proving that Scott was a nominee of the Finks without any evidence that he was at the hotel that afternoon would not have helped much, and it is, I think, optimistic to suppose that any of the victims would have acknowledged the possibility that they may have made a mistake. There is room for more than one view about MoffaÕs general policy of not advising his clients one way or the other as to whether they should give evidence. It is notoriously a subject in which the clientÕs satisfaction with any advice that he gets is likely to be determined by the verdict. Mrs Shaw referred us to the English case of Reg v Clinton (1993) 1 WLR 1181 in which a conviction was set aside largely because the appellantÕs counsel had failed to advise him in the strongest possible terms to give evidence in his defence. I do not think it possible to extract a general principle or rule of practice about this from other decisions on other facts. If MoffaÕs practice had been to advise or not advise, depending on the circumstances, there is nothing to indicate that he would, or indeed should, have advised this particular client to give evidence. It was a tenable view that the appellant was unlikely to impress the jury and that, even though the Judge might give a Weissensteiner direction, the appellantÕs best chance of acquittal was to stay in the dock and hope that the jury would have a reasonable doubt. It was the appellantÕs deliberate decision that Scott and Corbett should not be called. He is of mature age, worldly wise, and capable of understanding what decisions he had to make during the trial and of appreciating the consequences of them. It appears that this was not the first time he had been on trial. He did not need to be saved from his counsel and I see no reason to think that he needed to be saved from himself. In my opinion, his trial was not unfair and his case for having his convictions set aside on the ground of an apprehended miscarriage of justice has not been made out.

66. While that is enough to dispose of this ground of appeal, I add a few words about the quality of the additional evidence, from Scott and Corbett and the appellant himself, that the appellant says should have been called at the trial. Could it have made any difference to the result? I think not. The appellant was identified by two of the victims. Certainly the jacket insignia point was worth pursuing, although one may suppose that it is unlikely to have troubled Peter or Stratis. What weight the jury might have given it can only be conjectured. They may well have thought that it was of less importance than PeterÕs evidence, which accorded with his statement of April 23, that the man at the table looked like a weight lifter and could not close his hands properly, a description which, according to Jenkins, tallied with the appellantÕs appearance when he was arrested. This important piece of circumstantial evidence was not contradicted at the trial or on the appeal. I do not think that Scott would have presented any obstacle to the prosecution case. His demeanour and his cross-examination would have combined to discredit him. It is noteworthy that, before the jury could accept confusion between the appellant and Scott as a reasonable possibility, it would have been necessary for them to reject SarvanidisÕ evidence that all of the men at the table, apart from the Takianos brothers, followed them to the doorway. I say that because the likely implication of ScottÕs evidence is that the struggle in the doorway must have taken place when he was outside the hotel checking his motorcycle. Of course, one can never say with certainty what a jury will think about any witness, but in my opinion it is quite unlikely that the calling of the appellant and Scott and Corbett or any combination of them could have made any difference to the verdicts. I have little doubt that the appellant decided that giving or calling evidence would actually worsen his chances with the jury, and that that is why he instructed Moffa as he did.

ClarkÕs fresh evidence ground 67. That brings me to ClarkÕs miscarriage submission. He says that his conviction is unsafe and unsatisfactory having regard to the evidence contained in the ScottÕs affidavit. Clark himself gave oral evidence on the appeal and I have already summarized it. He said that he was in the hotel until three or three thirty pm when he left with a man named James. That was before any trouble occurred. He went to the clubrooms and saw Robert White there. The Crown did not concede that any of this was fresh evidence, properly so called, but in the circumstances I do not think it matters whether it was or not. Clark makes no complaint about the way his defence was handled and he does not seek to resile from his decision not to give evidence himself. Furthermore his counsel, Mr Rice, told us that he based no argument on the absence of James from the witness box. (Mr CaldicottÕs evidence indicates that James was available.) It is a question, then, whether there is a significant possibility that the jury, acting reasonably, would have acquitted Clark if they had had before it ScottÕs evidence called on behalf of Robert White. Gallagher v The Queen (1986) 160 CLR 392, at 399; and see Mickelberg v The Queen (1989) 167 CLR 259. The jury may have wondered on this postulated procedure why the appellant was relying on such an unimpressive witness and not giving evidence himself. In my opinion the new evidence upon which the appellant relies fails the modest test that is supported by the majority of the High Court in Gallagher. If the test is one of likelihood (cf. Ratten v The Queen
(1974) 131 CLR 510 and Lawless v The Queen (1979) 142 CLR 659; cf. Mickelberg at 275) it fails by a greater margin.

The conflict of interest argument 68. Finally there is the appellant Robert WhiteÕs conflict of interest argument. The submission is that he did not have a fair trial because his solicitor, Patsouris, was acting as well for Brenton White in circumstances in which there was a conflict of interest between the two clients.

69. I accept PatsourisÕ version of the facts relevant to this ground. He had a number of clients who were members of the Finks Motor Cycle Club and he was already acting for Greatbatch and Brenton White when the appellant approached him in May or June 1995 about this matter. The appellant knew that the police were looking for him and he was concerned about getting bail. Patsoursis saw him about his bail prospects and later saw him again and took the brief instructions about the charges to which I have already referred. He was acting for all three men when they were committed for trial, and there were occasions when he saw them together even after he ceased to act for Greatbatch in this matter about Christmas 1995. He did not take instructions from Robert White in the other appellantsÕ presence. He continued to act for Greatbatch, and for Brenton White as well, in another matter that did not involve Robert White. He always intended briefing counsel and the preparatory work he did for Robert White was perfunctory. What he did for Greatbatch and Brenton White was not disclosed. Some time before the trial Patsouris briefed Ms Vanstone QC to appear for Brenton White and Mr Sampson to appear for Robert White, and subsequently Mr Sampson was replaced by Mr Moffa. Patsouris briefed separate counsel because he did not think the same counsel could adequately or properly act for both men. As for the occasions when he spoke to all three appellants together, he said that he could recall them sitting in his office and the discussion would have been about general club matters or general chit chat. He saw Greatbatch on 7 March 1996 but there is no evidence about the purpose of that meeting. He never asked Robert White whether Greatbatch or Brenton White had said they were at the hotel on April 21. He said that his instructions from Robert White did not conflict with the defences of Greatbatch or Brenton White. The only conflict was between the latter two appellants. As for possible witnesses, he did not hear about Scott or Corbett until after the verdicts.

70. Solicitors frequently act in civil matters for co-plaintiffs or co-defendants and sometimes on the criminal side a solicitor will act for more than one accused. He must in those circumstances be quick to perceive any conflict of interest between his clients, and when that does happen he will have to send one of them away and possibly both. Indeed, he should always be on the look-out for the possibility of a conflict so that he can act before it happens. Many would say that the best way of avoiding any possible embarrassment in the criminal field, where instructions can change substantially even during the trial, is simply not to act for multiple defendants. However, that is very different from saying that a solicitor may never act for multiple defendants and that the trial will be vitiated if he does. Mrs Shaw put to us that for a solicitor to act for two defendants in a criminal case would be contrary to the Professional Conduct Rules of the Law Society, but that proposition is plainly untenable.

71. In Mills v The Queen (1995) 1 WLR 511 four defendants, jointly tried in Jamaica for a murder, were represented by the same counsel. Three of them put forward alibi defences and the fourth pleaded self-defence or provocation. They were convicted. It was argued on the appeal that there was a clear and substantial conflict between the fourth defendant and his co-defendants with the result that the fourth defendant did not have a fair trial.The judgment of the Privy Council includes the following passage -
    "It is axiomatic that counsel engaged on behalf of more than one
    defendant in a criminal case must consider whether there is a
    conflict of interest between them which might inhibit his proper
    and effective defence of one of them. Counsel must consider the
    matter in the light of the prosecution case and the instructions he
    receives from the defendants. If there is, or might be, a conflict
    of interest, he must promptly advise separate representation. Any
    doubt must be resolved in favour of separate representation. Those
    duties of counsel arise as soon as he is engaged. It is, however,
    a continuous duty. If at any time before the trial a conflict
    arises, counsel must advise separate representation of the
    defendants. If contrary to all expectations such a position arises
    at trial, counsel may be obliged to seek a discharge of the jury in
    order to enable separate representation at a new trial. These
    propositions flow from the right of a defendant to have his defence
    properly and effectively placed before the jury. It is an integral
    part of his constitutional right to a fair trial. But their
    Lordships add one qualification. The province of the law is
    practical affairs. The question is whether there is, or might be,
    a real risk of a conflict of interest inhibiting counsel in the
    discharge of his duties on behalf of one of more defendants. In a
    practical world wholly theoretical or fanciful risks can be
    disregarded." (at 523)

72. All this was said of the barrister in a criminal trial in Jamaica but the policy and practical considerations will apply to a solicitor in South Australia as well. He may act for multiple defendants in a case such as the present but he takes a risk in doing so. The degree of risk will depend on the circumstances. He will have to be constantly alert to it and be ready to act promptly and appropriately in the event of any conflict arising.

73. In my opinion the evidence does not show that Patsouris was ever in a position of conflict here. Robert WhiteÕs defence throughout was that he was not at the hotel. Brenton White and Greatbatch did not give evidence at the trial and did not waive legal professional privilege on the appeal - there could be more than one reason for that - so the nature of the defences they were putting forward and the factual instructions upon which they were based can only be inferred from what their respective counsel said and did at the trial. Obviously they were both saying that the Crown had not proved its case against them. However, it appears that Brenton White, at least, was not disputing that he was at the hotel that day - see, for instance, Ms VanstoneÕs cross-examination at p463a of the transcript and her address at p614 - but was saying simply that he was not the person who stared and was not involved in any mass movement to the door. GreatbatchÕs counsel does not appear to have conceded anything. He concentrated on the inadequacy of the identification evidence. Patsouris did not at any relevant time know what Corbett or Scott might say but, had he done so, it would not have disclosed any conflict with the instructions he had from Robert White. Corbett would have said that he saw both Robert White and Brenton White at the clubrooms that afternoon and that evidence, if believed, would have assisted both appellants. Given the way that Brenton WhiteÕs defence appears to have been run, ScottÕs evidence would also have helped him. He said that Brenton White was at the hotel but left before any fighting broke out. ScottÕs evidence would not have assisted Greatbatch, whom he claimed to have seen at the hotel, but there is no reason to think that any act or omission on PatsourisÕ part was motivated by a wish to shield Greatbatch by any indirect effects of Robert WhiteÕs defence. Patsouris may have been dilatory in his case preparation but he was not being devious. He was leaving almost everything to counsel and he stopped acting for Greatbatch well before he briefed anyone. He retained separate counsel for Brenton White and Robert White and thereafter he played no active part in the case. It is not a realistic possibility that Robert WhiteÕs defence would have been conducted any differently had Patsouris been acting throughout as solicitor for Robert White only. Mrs Shaw referred us to the Canadian cases of Reg v Bullis
(1990) 57 C.C.C.(3d) 438 and Reg v Silvini (1991) 68 C.C.C. (3d) 251, but they were concerned with trial counsel acting for multiple defendants. I do not think that we should assume a conflict of interest between PatsourisÕ clients simply because the professional privilege claim denies us any actual knowledge of the instructions he was given by Brenton White and Greatbatch. I would not conclude, therefore, that Patsouris had any reason, on the information actually in his possession, to apprehend a conflict of interest between his clients Robert White and Brenton White. Had he known what Scott and Corbett were willing to say, the position would not have been any different. In my opinion the claim that Robert WhiteÕs trial was unfair by reason of a conflict of interest involving his solicitor must be rejected.

74. Mrs Shaw put forward an alternative submission - indeed, it was at the forefront of her argument - that, even if there was not a conflict of interest, there was the appearance of one and that is enough. A fair-minded observer would have concluded that Patsouris was unable to pursue the interests of his client Robert White with undivided loyalty and to the exclusion of the interests of any other client. He was therefore compromised in his representation of Robert White and the trial for this reason miscarried.

75. The argument was amplified in this way. The Crown case on the photoboard evidence was that the men responsible for these assaults were members of the Finks Motor Cycle Club. Robert WhiteÕs defence was that he had been mistakenly identified for someone else. Such a defence (it was said) would necessarily implicate another member of the club. If a solicitor were to act for both Robert White and another member of the club there would always be the potential for that other member to be the person for whom Robert White was mistakenly identified. It was also in Robert WhiteÕs interests to show at the trial which members of the club were at the hotel, as a relevant step in proving that he was not there, and that also would compromise his co-accused. Patsouris appeared for Robert White and Brenton White and Greatbatch at the committal when a Rule 20 application was lodged and argument took place as to whether or not prosecution witnesses should be called on the issue of identification. Although Patsouris ceased to act for Greatbatch after Christmas 1995 he continued to have joint conferences with Greatbatch and Brenton White and indeed with the three men until shortly before the trial. Justice, it was submitted, could not be seen to be done to Robert White in those circumstances.

76. Mrs Shaw placed much reliance on the Western Australian case of Mallesons Stephen Jacques v KPMG Peat Marwick (1991) 4 WAR 357. The question there was whether a firm of solicitors should be restrained by injunction from acting against a defendant in a criminal prosecution when, through one of its members, it had formally advised the defendant on several of the very issues which formed the subject matter of the prosecution. The injunction was granted notwithstanding the willingness of the solicitors and the prosecution authority to give undertakings that the confidentiality of the firmÕs previous dealings with the defendant need not and would not be undermined. Ipp J in the course of his reasons observed that the appearance of justice was most important and that it would not survive any general impression that a firm of solicitors could readily change sides to assist in a criminal prosecution. Mrs Shaw also drew on the rules for determining whether a judge is disqualified for a reasonable apprehension of bias. In my opinion, neither of those situations provides a test that is appropriate to the present case. What has to be decided is whether the appellantÕs trial miscarried by reason of a relevant conflict of interest. I have already held that it did not. There may conceivably be cases in which a convicted personÕs sense of grievance about his solicitor acting for another party as well, or some other exceptional situation, could lead an appeal court to set aside his conviction, notwithstanding his failure to prove any actual conflict of interest, but the appellant has not demonstrated any such ground for interference with the verdicts here. He and Brenton White were represented by different counsel and, from the time Moffa was briefed, Patsouris played no part in the case. There is no reason to suppose that Robert White left the Court thinking that he had not had a fair trial because his solicitor, unlike his counsel, was acting for Brenton White as well as for him. In my opinion this ground fails.Orders I would allow the appeal by the appellant Greatbatch, set aside his convictions and enter a judgment and verdict of acquittal on each count. The other appeals should be dismissed.

JUDGE2 PERRY J
77. I have had the advantage of perusing in draft the reasons for judgment of Cox J, with which I am in substantial agreement. I am indebted to him for his elucidation of the issues canvassed on the hearing of the appeals. I agree that the appeal by the appellant Greatbatch should be allowed, and that a verdict of acquittal should be substituted with respect to him. I further agree that the other appeals should be dismissed.

78. I add some comments of my own as to the questions of fresh evidence, and the conduct by Mr Patsouris and Mr Moffa of the defence of the appellant Robert White.

79. The appellant Robert White relies on the so-called "fresh evidence" of the witnesses who were ultimately called before the Full Court, namely, Glen Scott ("Ox") and Christopher Corbett ("Country"). The appellant Clark relies on the evidence of Scott but not of Corbett, whose evidence was not relevant to ClarkÕs defence.

80. Applications under s359 of the Criminal Law Consolidation Act 1935 "are never lightly granted". It has been said by this Court:
    "In order to justify the reception of fresh evidence three
    conditions must be fulfilled: first, it must be shown that the
    evidence could not have been obtained with reasonable diligence for
    use at the trial; second, the evidence must be such that if given,
    it would probably have an important influence on the result of the
    case, although it need not be decisive; third, the evidence must be
    apparently credible, but the Full Court will not necessarily decide
    whether the witness from whom the new evidence is sought is telling
    the truth É."

But:
    "É the rules relating to fresh evidence, like all rules of law,
    should be applied so as to serve and not to frustrate the interests
    of justice É appellate courts will always receive such evidence if
    it can be clearly shown that failure to receive such evidence might
    have the result that an unjust conviction or an unjust sentence is
    permitted to stand."

81. As was observed in Gallagher v R: "É the fundamental question is whether a miscarriage of justice has occurred."

82. The application of the rules as to the receipt of fresh evidence are subordinate to that overriding principle.

83. In this case, it is clear that the so-called fresh evidence could, with reasonable diligence, have been produced at the trial. Furthermore, it is equally clear from the evidence given before the Full Court that the absence from the witness box of the appellant Robert White and of the two witnesses to whom I have referred at the trial was a consequence of the deliberate decision made by all four appellants that none of them would give evidence or call witnesses in aid of an alibi defence. It is said that this stemmed from advice given by Ms Vanstone QC, who represented the appellant Brenton White. (Ms Vanstone was not called to give evidence before this Court).

84. The tactical decision which was made, being a decision shared by all four appellants and their advisers, was to defend the prosecution by challenging the reliability of the identification evidence rather than by raising, in the case of any of the appellants, a positive alibi defence.

85. Whatever may be the circumstances in which the court may permit the calling of fresh evidence on appeal, notwithstanding the fact that it could with reasonable diligence have been produced at the trial, they do not extend to a situation where a deliberate tactical decision has been made not to call the evidence in question. The appellants, more particularly the appellants Robert White and Clark, cannot have a second bite at the cherry. The tactical manoeuvre which underscored the conduct of their defences at the trial having failed, they cannot expect this Court to permit them to run a different defence before another jury.

86. Although the Court exercised its power to permit the so-called fresh evidence to be called, having heard it and the evidence of Mr Patsouris and Mr Moffa, I would accordingly disregard the evidence of Robert White, Scott and Corbett for the purposes of the appeals insofar as they are pursued on the "fresh evidence" ground.

87. The evidence is, however, relevant to the question which I next deal with, namely, as to the conduct of Robert WhiteÕs solicitor and counsel.

88. With respect to the separate plea by the appellant Robert White that his solicitor and counsel mismanaged his defence, again the fundamental question is whether a miscarriage of justice has occurred.

89. To the authorities referred to by Cox J I would add a reference to the following passage in the judgment of Hunt CJ at CL (with whom Finlay and Levine J agreed) in Ignjatic:
    "As a general rule, an accused person is bound by the way in which
    the trial is conducted on his behalf, regardless of whether his
    instructions were carried out, and a conviction will not be set
    aside because decisions by his legal representatives as to the
    conduct of the trial were made without or contrary to instructions
    or because those decisions involved errors of judgment or even
    negligence. Counsel have a wide discretion as to the manner in
    which proceedings are conducted. Decisions as to which witnesses
    should or should not be called, what questions should or should not
    be asked, which lines of argument should be pursued, which points
    should be abandoned and which of two or more inconsistent defences
    should be raised are all matters within the discretion of counsel,
    and they frequently involve difficult problems of judgment,
    including judgment as to the best tactics to be adopted. Neither
    disobedience of instructions nor even incompetence is sufficient of
    itself to attract appellate intervention. It is only when the
    error made was of such a nature in the circumstances of the case as
    to have led to a miscarriage of justice that this Court will
    interfere."

90. The findings suggested by Cox J with respect to the nature of the instruction given to Mr Patsouris and Mr Moffa, being findings with which I agree, are sufficient to destroy any suggestion that the appellant Robert WhiteÕs case was in any way mishandled.

91. Both Mr Patsouris and Mr Moffa were given minimum instructions. The evidence heard by this Court strongly suggests that there was an undercurrent of control over the conduct of the defences by the Finks motor cycle gang of which the appellants were members. The obligation of both Mr Patsouris and Mr Moffa was to act in accordance with the instructions which they were given.

92. It was not their obligation to join issue with those instructions. It was suggested that the English authority of Reg v Clinton is authority for the proposition that there may be circumstances in which counsel may be expected to advise the client in the "strongest possible terms". While such a course is open to counsel, I am, with respect, unable to agree that counsel is ever under an obligation to go so far as that. All relevant decisions as to the presentation of a defence in the criminal court must be made by the client. It is not the role of counsel when obtaining instructions and giving advice to brow beat the client.

93. Relevant options must be identified, but it is the client who must make the decision. Paragraph 7.2(f) of the Uniform Code of Conduct of the Australian Bar Association reads in part:
    "A barrister appearing for the accused is under a duty to advise
    that person of his or her rights, for example, the right to
    challenge juries, the right to give evidence, the right to call
    evidence to name but three. A barrister may properly advise a
    client as to the exercise of these rights but it is the client who
    must make the decision É"

94. In my opinion, the circumstances surrounding the conduct of the defence of the appellant Robert White by Mr Patsouris and Mr Moffa did not give rise to a miscarriage of justice.

95. I agree with the orders proposed by Cox J.

JUDGE3 LANDER J
96. I have had the advantage of reading in draft the reasons of Cox and Perry J.

97. With one exception, which relates only to the procedure adopted by this Court, in the hearing of this appeal I agree in all respects with their HonourÕs reasons.

98. I disagree with Cox J that the power for the calling of the legal practitioners falls within the scope of Section 359 of the Criminal LawConsolidation Act 1935. Whilst that section clearly enough gives the Court the power to order the attendance of witnesses who could have been called at the trial or receive evidence of any competent but not compellable witness I do not see that section as operating to give this Court jurisdiction to call upon legal practitioners, who could give no relevant evidence, at the trial and indeed in some respects could have refused to give relevant evidence if the giving of relevant evidence was in conflict with their obligation to claim their own clientÕs legal professional privilege, to provide a report to the Court or to be required to give evidence. In my opinion the jurisdiction for the procedure which the Court adopted arises from the inherent jurisdiction of the court in the exercise of the jurisdiction in respect of its own officers and in particular in the discipline of legal practitioners.

99. Any legal practitioner admitted to practice by the Supreme Court of South Australia becomes by reason of his or her admission an officer of the Supreme Court of South Australia Myers v Elman (1940) AC 282 per Lord Wright at 317. That is so notwithstanding that the Legal PractitionerÕs Act 1981 does not so provide.

100. As an officer of the Court, and by reason of the legal practitioners entitlement to practise, the legal practitioner becomes subject to the jurisdiction of the Court in relation to that legal practitionerÕs professional conduct. This Court has jurisdiction by reason of the Legal Practitioners Act1981 to discipline legal practitioners. (Division 5 of Part 6 of the LegalPractitioners Act 1981). That jurisdiction however is in addition and does not derogate from the Courts inherent jurisdiction in relation to the supervision and discipline of legal practitioners (s89(3) Legal Practitioners Act).

101. The inherent jurisdiction to regulate the conduct of legal practitioners and to suspend or prohibit legal practitioners from practice is incidental to the power to admit those persons to practise in the Court. Attorney General of The Gambia v NÕjie (1961) AC 617. It is the Court which accredits a person with the right to hold himself or herself out as a legal practitioner and it is therefore necessary that the Court ensures that those that it accredits are competent and in all respects fit and proper persons to practise. The CourtÕs jurisdiction in that respect is protective of the public. It also has been said that the jurisdiction exists for the benefit of the legal practitioner. Lord Esher M.R. said in Sittingbourne and Sheerness Railway Company v Lawson (1886) 2 T.L.R. 605 that the summary jurisdiction of the courts over solicitors exists for the maintenance of their character for their honour and integrity.

102. However, there is a more particular reason for the existence of the jurisdiction and that is so that the Courts can ensure that justice is done in each and every suit before the Court. That being so, the jurisdiction allows the Court to exercise a summary jurisdiction by the use, if necessary, of a summary procedure to ensure that a legal practitioner does not so conduct himself or herself to interfere with the attainment of justice. The conduct which involves the jurisdiction need not be criminal conduct but it must be conduct which invokes non performance of that legal practitioners duty or gross negligence. Mistake, error of judgment or mere negligence is insufficient for the inherent jurisdiction to be exercised. Maroux v Sociedade Commercial Abel Pereira Da Fonseca SARL
(1972) 1WLR 962. Lord Wright described the reasons for and the jurisdiction in Myers v Elman thus:
    "The underlying principle is that the Court has a right and a duty
    to supervise the conduct of its solicitors, and visit with
    penalties any conduct of a solicitor which is of such a nature as
    to tend to defeat justice in the very cause in which he is engaged
    professionally, as was said by Abinger C.B. in Stephens v Hill.
    The matter complained of need not be criminal. It need not involve
    peculation or dishonesty. A mere mistake or error of judgment is
    not generally sufficient, but a gross neglect or inaccuracy in a
    matter which it is a solicitorÕs duty to ascertain with accuracy
    may suffice. Thus, a solicitor may be held bound in certain events
    to satisfy himself that he has a retainer to act, or as to the
    accuracy of an affidavit which his client swears. It is impossible
    to enumerate the various contingencies which may call into
    operation the exercise of this jurisdiction. It need not involve
    personal obliquity. The term professional misconduct has often
    been used to describe the ground on which the Court acts. It would
    perhaps be more accurate to describe it as conduct which involves a
    failure on the part of a solicitor to fulfil his duty to the Court
    and to realize his duty to aid in promoting in his own sphere the
    cause of justice. This summary procedure may often be invoked to
    save the expense of an action."

103. See also Broughton v Broughton (1955) SASR 241 at 248 and Capini and Son v Skopalj (1985) 42 SASR 100 at 103. The Court can exercise its powers in its inherent jurisdiction of its own motion. Brown v Burdett (1887) 37 Ch D 207; R and T Thew Ltd v Reeves (No.2) (1982) QB 1283.

104. A legal practitioner is subject to a summary jurisdiction on the part of the court to determine whether the legal practitioner has been guilty of any misconduct in the course of any proceeding before the court and in particular and in the course of the proceeding actually pending before the court. Myers v Elman (supra) Brendon v Spiro 1938 1 KB 176.

105. There are two aspects of the inherent jurisdiction. There is the punitive aspect when a penalty is visited upon a legal practitioner in relation to that practitionerÕs conduct and there is that aspect which is exercised for the purpose of compensating a victim of the conduct, for example the exercise of the jurisdiction to require a solicitor to comply with an undertaking or the exercise of the jurisdiction to visit costs upon a solicitor in default. The compensatory jurisdiction is more easily invoked in a particular cause because it can be used to summarily right an injustice or compensate for an injustice. The first aspect is less often invoked summarily and usually gives way to disciplinary inquiries and procedures.

106. Moreover a legal practitioner has an obligation by reason of the legal practitioner being an officer of the court to co-operate in any inquiry to determine whether a miscarriage of justice has been occasioned to any party because the legal practitioner like the court is concerned, at all times, to ensure that no party before the courts is the subject of a miscarriage of justice.

107. The appeal before the Court and the applications made on the appeal involve a consideration of all of the matters in section 353 of the Criminal LawConsolidation Act and require the court to determine whether the verdict of the jury ought to be set aside on the ground, inter alia, that there was a miscarriage of justice at the trial. A miscarriage of justice can arise in any number of circumstances but it is clear enough that a miscarriage of justice can occur if the legal practitioner or legal practitioners representing an accused person have been guilty of gross incompetence; R v Birks (1990) 19 NSWLR 677; R v Oliverio
(1993) 61 SASR 354; or if the legal practitioner has failed to carry out instructions given that legal practitioner; R v Scott (1996) 185 LSJS 436.

108. Grossly incompetent representation or a failure on the part of legal practitioners to accept or carry through their instructions may lead to a miscarriage of justice because the accused person has thereby lost a chance which was fairly open to him of being acquitted Mraz v The Queen (1958) 93 CLR 493 per Fullagar J at 514; Wilde v The Queen (1988) 164 CLR 365. In those circumstances the jurisdiction to set aside the verdict pursuant to Section 353 of the CriminalLaw Consolidation Act is invoked. It is the exercise of that jurisdiction in my opinion which entitles the court to call upon its officers to provide a report, when it is alleged that a miscarriage of justice has been occasioned either due to the incompetence or by reason of a failure to accept or carry out instructions by the legal practitioners who represented the appellant.

109. In those circumstances the court has by reason of its inherent jurisdiction a right and indeed a duty in exercising the jurisdiction under Section 353 of the Criminal Law Consolidation Act to call upon a legal practitioner to provide a report. A legal practitioner has a concomitant duty as an officer of the court to provide such a report to the court because that practitioner is as concerned as the court is, in its inquiry to ensure that if a miscarriage of justice has occurred it is corrected.

110. So also if there is a dispute between the accounts of the parties and their legal advisers in relation to matters that have transpired which needs to be resolved in order to determine whether a miscarriage of justice has occurred then the court is entitled in the exercise of its jurisdiction over its officers to call upon those officers to give evidence in relation to those matters and the officers again have a concomitant duty to give evidence in relation to those matters so as to allow the court to determine whether or not a miscarriage of justice has occurred.

111. For those reasons I joined in in the procedure adopted by the court in seeking from the legal practitioners the report which each of them provided. So also I joined in the procedure which called upon the legal practitioners to give evidence.

112. In my opinion, as Cox J has said, Mr Caldicott adopted the correct procedure in the circumstances of this case. In the case of Mr Moffa, his absence from the state prevented him from providing a report prior to the commencement of the appeal but he correctly, in my opinion, as an officer of the court provided a report and correctly understood his obligations to give evidence when called upon so to do by the court.

113. I think the submission made by Mr Clayton QC who appeared for Mr Patsouris that his client ought not to be called upon to give evidence was, with respect, misconceived. The submission incorrectly overlooked the legal practitioners obligations as an officer of the Court to co-operate and assist in any inquiry into the possibility that a person had suffered a miscarriage of justice. In the end nothing turned upon the submission because both of the legal practitioners gave their evidence without further objection.

114. It is right as Cox J has said that a legal practitioner will find allegations of this kind unpalatable and potentially professionally embarrassing. In those circumstances those who act for appellants, who would wish to charge their previous legal practitioners with either incompetence or misconduct, have a very high professional responsibility to ensure that such charge is only made where there is a proper basis for the making of the charge. Claims of this kind are easily made and may not be so easily defended.

115. In all other respects I agree with the reasons of Cox J and Perry J and concur in the orders that they propose.