R v Oake

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v OAKE
[2019] SASCFC 30
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Lovell)
2 April 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY
Appeal against conviction. The appellant and her daughter (the co-accused) were charged with aggravated causing harm with intent to cause harm. The complainant was the appellant’s granddaughter. The appellant and co-accused (the complainant’s mother) were both tried before a jury in the District Court and found guilty.
The principal ground of appeal was that a miscarriage of justice had occurred due to the failure of the appellant’s trial counsel to advise her of important matters, including election between trial by judge alone and trial by jury; whether the appellant could give evidence; and good character evidence. The appellant alternatively submitted to the effect that even if none of the three complaints on their own justified a finding of miscarriage of justice, the three in aggregate would do so.
Oral evidence was received on appeal from the appellant and others on her behalf and from the legal practitioners involved in the preparation for and conduct of the trial.
Held per Nicholson J (Peek and Lovell JJ agreeing) dismissing the appeal:
1. The appellant was adequately advised with respect to the three matters complained of and she made a free and informed decision with respect to each such matter. None of the three complaints has given rise to a miscarriage of justice.
2. The three complaints in aggregate also do not justify a finding of miscarriage of justice.
Criminal Law Consolidation Act 1935 (SA) s 24; Juries Act 1927 (SA) s 7; District Court Criminal Rules (SA) r 42, referred to.
Craig v The Queen [2018] HCA 13, discussed.

R v OAKE
[2019] SASCFC 30
Court of Criminal Appeal: Peek, Nicholson and Lovell JJ
PEEK J.

I would dismiss the appeal. I agree with the reasons of Nicholson J.
NICHOLSON J.
Introduction
On 6 April 2016, the appellant was convicted following a trial by jury of aggravated causing harm with intent to cause harm.[1] The complainant was the appellant’s granddaughter. On 22 July 2016, the appellant was sentenced to imprisonment for a term of 18 months with a non-parole period of 10 months which was suspended upon the appellant entering into a bond to be of good behaviour for two years. In the ordinary course, that bond will have expired on or about 21 July 2018. The appellant filed an application for permission to appeal against her conviction some 17 months after that conviction and therefore very substantially out of time. An extension of the time within which to make the application was granted by a single Judge of this Court who also granted permission to appeal on two of the three grounds of appeal relied upon.
[1] Contrary to subsection 24(1) of the Criminal Law Consolidation Act 1935 (SA).
The grounds of appeal initially relied upon were in these terms.
1)The trial counsel did not adequately put the appellant’s instructions.
2)The Appellant was not advised by her Counsel about important matters including:
·        Election of by [sic] Trial by Judge Alone and Trial by Jury
·        Whether or not to give evidence
·        The right to challenge Jurors
·        Good character evidence
3)The conviction was against the evidence and the weight of the evidence.[2]
Permission to appeal with respect to ground 3 was refused by the single Judge and this ground has not been further pursued before the Court of Criminal Appeal. During argument on the appeal, ground 1 was abandoned, as was the third complaint under ground 2 – an asserted failure by counsel to advise with respect to the right to challenge jurors.
[2]    This ground was particularised in quite some detail.
The appellant’s trial was conducted jointly with that of her co-accused daughter, Emma Oake who is the mother of the complainant. Emma Oake was also convicted of aggravated causing harm with intent to cause harm and was sentenced to a term of imprisonment to be served. Emma Oake has discontinued an appeal against her conviction.
During the hearing of the appeal, the appellant adduced oral evidence from herself, from Emma Oake and from the appellant’s former husband, the father of Emma Oake, Rory McDonald. The prosecution adduced oral evidence from the appellant’s counsel at trial, Todd Grant, from Emma Oake’s counsel at trial, John Dillon, and from the solicitor who acted for both the appellant and Emma Oake during committal proceedings and up until the time of their arraignment in the District Court in August 2014, Jonathan Stevens.
For the reasons that follow, I am satisfied that the appellant was adequately advised with respect to the three matters she now complains about and that on the basis of that advice she made a free and informed decision with respect to each such matter. There has been no miscarriage of justice. I would dismiss the appeal.
Background and overview of the prosecution and defence cases at trial
The prosecution, in its written submissions on appeal, has provided a detailed summary of its case at trial sufficient for present purposes.
At the time of the offence the complainant, TO, was 15 years of age, estranged from her mother, Emma Oake, and living at a friend’s house. Her mother and her grandmother, the appellant, were said to have formed a plan to lure the complainant from the friend’s house in order to confront the complainant and cause her harm. The motive for the attack was that the appellant and her co-accused blamed the complainant for an alleged break in and theft at Emma Oake’s house.
On the afternoon of 9 February 2014 Rory McDonald, the appellant’s estranged husband, the complainant’s sister and another woman attended at the house at which the complainant was staying. McDonald alleged that the complainant had been involved in breaking into Emma Oake’s house. Emma Oake had sent the complainant a text message on 6 February 2014 stating “[T] u had better bring my stuff back now”. McDonald requested that police attend as he was concerned about the complainant’s welfare and suspected that she had been using drugs. He also wanted police to investigate whether items stolen during the alleged break in were in the house. Police attended at the residence and searched the house but located no items matching the description of the items stolen. Police formed the view that the complainant was not affected by any substances. An ambulance also attended at the premises. Police confirmed that the ambulance officers were satisfied that she did not require treatment. McDonald was not satisfied with “the outcome”.
On the same day Michael Brown, the complainant’s ex-partner, arranged to meet with the complainant at around 10pm outside a local primary school. Whether he had spoken with the complainant prior to being contacted by Emma Oake was unclear. In any event, telephone records confirmed that Emma Oake sent a text message to the complainant at 7:39pm stating “'Mickeys first on the list u have ten minutes to decid…”, then a text to Michael Brown at 7:53pm stating “Did you know that [T] robbed by [sic] house on Thursd”. Emma Oake then called Brown numerous times between 7.54pm and 9.22pm. The appellant picked up Brown and drove him with Emma Oake to the meeting place. Brown left the car and walked towards the complainant. Emma Oake was a short distance behind.
The complainant gave evidence that earlier in the day Brown had promised to give her some money and to bring her some cannabis. Brown had told the complainant that he was going to get a ride to Aldinga with his cousin. The complainant was not made aware that her mother and grandmother would be present.
The complainant attended at the primary school and waited for Brown to arrive. She stated she saw Brown walking towards her and then almost immediately noticed another person walking towards her and realised it was her mother, Emma Oake. The complainant took off her shoes (which were later found by police at that location) and began to run down the street. Brown chased her and caught her.
Once Michael Brown took hold of the complainant the car being driven by the appellant pulled up next to them. Emma Oake opened the rear door and it appeared to the complainant as if Michael was trying to get her closer to the car and trying to push her into the car while Emma also tried to grab her. At that point Emma Oake entered the vehicle and, pulling her hair, pulled the complainant into the vehicle backwards. At that time Brown was no longer holding her. Whilst in the car Emma Oake punched the complainant in the face, bit her nose and said “how dare you steal from me and think you can get away with it”.
At this time the door of the vehicle was open and, while being assaulted and with her legs partly out of the vehicle, the vehicle was driven away by the appellant. As a result of her feet being dragged along the road it was alleged she suffered a broken ankle. Whilst in the back of the car the complainant alleged Emma Oake cut off her hair. Police located at the scene various clumps of hair consistent with this allegation. Later in the night when police located the appellant and her daughter at a local hospital, police also located in the back of the car clumps of hair which belonged to the complainant. A pair of scissors were also located in the back of the car.
In the course of being assaulted the complainant was screaming to try and attract attention. She stated that the appellant told Emma Oake “shut her up”. At that point some material was put over her face. A piece of clothing was also found in the back of the car which could have been used for this purpose.
The car was driven for at least two-hundred metres and then it was stopped. Whilst the vehicle was stopped the complainant recalled the applicant [sic: appellant] pushing her weight against her, trying to get the complainant back into the car. Shortly afterwards, the complainant was able to leave the car and make her way to a nearby house. The residents of that house called an ambulance. The injuries to the complainant were photographed.
As the appellant and Emma Oake drove away from the scene, leaving Brown behind, Emma Oake contacted police and alleged that she had been assaulted by her daughter. She stated she was driving to the Noarlunga hospital.
Police attended the hospital and spoke to the appellant who stated to police: “tonight Emma wanted to talk to [T] at the Aldinga address near the school on the street outside the school. [T] started going crazy. Emma me and her friend Mikey, I was driving the black Outlander, my car. I was in the car, Emma was on the back seat, the door was open, struggling with each other - “she stabbed me, drive”. I drove, couldn’t see what was going on, the door was still open, Emma was screaming on the back seat, [T] half in the car, door open, screaming.”
[footnotes omitted]
The prosecution case against the appellant, apparently accepted by the jury, was that the appellant engaged in a joint criminal enterprise with Emma Oake to intentionally cause harm to the complainant. The defence case, in essence, was that at no time did the appellant intend to harm and she was not party to any such joint enterprise. The appellant only intended to stage what her counsel on appeal characterised as an “intervention”; to get hold of the complainant so as to talk to her in order to peaceably resolve the issues between her and her mother, Emma Oake. The “intervention” got out of hand. The defence called no evidence and submitted that the prosecution evidence was insufficient to prove the elements of any joint criminal enterprise beyond reasonable doubt.
The course of the trial
The appellant and Emma Oake were arraigned for the first time in the District Court on 4 August 2014 and both pleaded not guilty. At this time, Mr Jonathan Stevens was acting for both accused. At a subsequent directions hearing on 9 September 2014, the matter was listed for trial to be heard on 9 June 2015. The trial did not proceed on that day and at a directions hearing on 23 June 2015 a further trial date of 21 March 2016 was allocated. At a directions hearing on 17 March 2016 Todd Grant appeared for the appellant for the first time and on 23 March 2016 the trial commenced with Mr Grant as her counsel. Mr Dillon acted as counsel for Emma Oake. The prosecution closed its case on 4 April 2016 and both the appellant and Emma Oake closed their cases that same day without calling any evidence. The jury returned its verdicts on 6 April 2016.
Accordingly, a final decision concerning whether or not the appellant would give evidence and whether or not any other witnesses, including character evidence witnesses, would be called in her case had to be made as at 4 April 2016 upon the closing of the prosecution case.
As far as any election for trial by Judge alone was concerned, the time constraints had been those prescribed by the rules of Court. Subsection 7(1) of the Juries Act 1927 (SA) provides as follows.
(1)Subject to this section, where, in a criminal trial before the Supreme Court or the District Court—
(a) the accused elects, in accordance with the rules of court, to be tried by the judge alone; and
(b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner,
the trial will proceed without a jury.
According to subrule 42(1) of the District Court Criminal Rules 2014 (SA) any election for trial by Judge alone had to have been made no later than:
[T]he day of the [appellant’s] first arraignment on the information in respect of which the trial is intended to be held or within such time and in such manner as the Judge on the first arraignment directs.
However, subrule 42(5) provides for a late election in prescribed circumstances.
The Court may extend the time prescribed by or under this rule if satisfied that there are special reasons for so doing or that it would be unjust not to do so … .
It is to be remembered that, at the time the appellant was first arraigned in the District Court, Jonathan Stevens was acting for both accused but from a time shortly before and at trial Todd Grant was acting for the appellant.
Also of potential significance was subsection 7(3) of the Juries Act 1927, which is in these terms.
(3)Where two or more persons are jointly charged, no election may be made under subsection (1) unless all of those persons concur in the election.
It followed that, in the event the appellant did wish to elect for a trial by Judge alone,[3] any such election could only have been made in circumstances where it was an election jointly with her daughter as co-accused.
[3] Whether within the time prescribed by subrule 42(1) or following a successful application to extend the time for election pursuant to subrule 42(5).
The oral evidence on appeal
Many topics were canvassed and the examination of the witnesses both in chief and in cross-examination ranged widely. The appellant to a large extent and Rory McDonald, albeit to a lesser extent, were concerned throughout to present the appellant’s case on the facts, including the evidence the appellant would have given as to her intentions and expectations when engaging in the “intervention”, had the appellant been “permitted” to give evidence. However, in this section I will endeavour to confine myself to a summary of the evidence given by each witness relevant to the three topics under consideration and to my findings as to the credibility and reliability of each witness.
Evidence of the appellant
The appellant’s evidence in chief generally and specifically concerning the three topics in issue was unimpressive. It was given some two years or so after the trial and without the benefit of contemporaneous notes other than the contents of her lawyer’s file which, insofar as relevant, tended to support Mr Grant’s version of events. This is not a criticism as such; the appellant would not be expected to have kept detailed notes. Nevertheless, there is an absence of any correspondence by her directed to Mr Grant complaining about or seeking to debate the decision not to call her or to have a Judge alone trial. To the contrary, a letter sent by her to Mr Grant after the trial, in which she conveyed her instruction declining to pursue an appeal, was in terms expressing gratitude with no hint of complaint. Furthermore, the likelihood of reconstruction, following a lengthy period of rumination concerning the trial and adverse verdict, resulting in a self-serving but unreliable recollection of events was manifest throughout the giving of the appellant’s evidence.
The cross-examination of the appellant demonstrated a number of difficulties inherent in accepting her evidence. It contained elements of hearsay, particularly with respect to matters that her co-accused daughter had told her and inconsistencies both internal to the evidence she gave and with respect to out of court statements.
The appellant was extensively cross-examined on her version of the events concerning the incident with her granddaughter the subject of the charge and as to the evidence she would have given. She offered an account of her intentions which was unlikely, particularly when considered in the context of her actions at the time and the inferences naturally to be drawn from other evidence.
Ultimately, it was a jury question as to whether or not the elements of the offence charged against the appellant had been established and it is not a question which falls for consideration on appeal. Nevertheless, the evidence given by the appellant on appeal as to that which she would have told the jury together with her manner of giving that evidence did serve to indicate that the forensic decision for her not to give evidence was not at all an unreasonable one. I doubt that, had the appellant given evidence, she would have improved her case before the jury; she may have harmed it.
Understandably, the appellant, having been convicted at trial, now regrets not having given evidence, not having had a trial by Judge alone and not having arranged character witnesses. Throughout her evidence in chief she maintained that the first two decisions were made by her counsel and against her expressed wishes and that the lack of character witnesses resulted from a failure to receive proper advice. However, her evidence in chief on these topics lacked clarity and, at times, was inconsistent. Ultimately, it did not withstand cross-examination. In addition, the appellant made a number of assertions that made little or no intrinsic sense.
One example of this last criticism derives from the appellant’s evidence that, during the trial, Mr Grant advised her to the effect that letters of reference from appropriate people would be sufficient evidence of her good character. The evidence and the court record is clear to the effect that Mr Grant did ask for letters of reference but this was, as would be expected, in the later context of preparing for and making submissions as to sentence. The appellant has conflated this event with the failure to adduce character evidence during trial. The notion that any, even moderately experienced, criminal counsel would seek to present letters of reference as evidence of good character during a trial is intrinsically not credible. The appellant has either forgotten or, as at the time of the appeal, misapprehended the nature of earlier discussions with Mr Grant concerning the obtaining of character witnesses capable of giving oral evidence at trial. She has conflated this notion with a later discussion concerning written references for sentencing submission purposes. The appellant may have been genuine in holding this belief at the time of the appeal. However, the issue serves at best for the appellant to illustrate the potential for reconstruction by her and the unreliability of her evidence.

Another example of evidence given by the appellant that is intrinsically not credible occurred on more than one occasion in the context of her evidence concerning discussions she had with Mr Grant on the topic of whether or not she was to give evidence at the trial. A bolster to her evidence that she was denied the opportunity to give evidence was her repeated assertion that Mr Grant advised to the effect that her evidence was something they would “keep up their sleeve” for any appeal. Mr Grant was not cross-examined to this effect and, again, it is intrinsically not believable that any counsel would approach a criminal trial in this manner.
There are other features of the appellant’s evidence that have caused me significant disquiet. Without being comprehensive, I note four such features.
On the topic of the appellant not giving evidence, she expressed herself in examination in chief and in cross-examination in various and inconsistent ways. Ultimately, she made concessions but only when pressed as to her recollection and the logic of her position during cross-examination.
Second, I formed the impression that the appellant’s evidence was in large part informed by a sense of grievance derived from an expressed assumption for which there is no foundation in the evidence and with respect to which Mr Grant was not cross-examined, that Mr Grant wished to finish this case as quickly as possible in order to move to another matter.
Third, the appellant said that, throughout the trial, she was upset with Mr Grant’s performance. However, she instructed him to obtain the advice of an independent senior junior criminal barrister as to the prospects of an appeal. After receiving that advice, the appellant wrote to Mr Grant declining to appeal and thanking him (twice) for his assistance. Further, it would seem that she would have been content for Mr Grant to conduct the appeal if it were to go ahead. The following exchange occurred during cross-examination.
QIf you'd come to that belief shortly after the end of the trial, that Mr Grant had made decisions to suit himself that were not in your best interests, you must have been pretty upset at that point.
AI didn't think that he did a good job from the start basically.
QSo the answer is yes you were upset at that point.
AYes.
QMr Grant made some inquiries from a barrister about whether there were appeal grounds, didn't he.
AYes.
QHe sent you an email with the advice from -
AJohn Lyons I think it was.
QFrom a barrister; is that correct.
AYes.
QAnd he set out various aspects for you to consider in relation to that appeal; that's correct.
AYes.
QAnd then he asked you to consider your options and advise how you wished to proceed; that's correct.
AYes.
QAnd then on 29 August 2016 you sent a letter to Mr Grant saying 'Dear Todd, thank you for all your help and advice, I am writing to confirm with you that I will not be going ahead with an appeal. Thank you again, regards Jane Oake'.
AYes, something like that.
QFirst of all you referred to thanking him for his help and for his advice; that's correct.
AYes.
QYou make no reference to how upset you were with him when you sent that letter to him.
ANo, I made it short and sweet.
QYou had no issue with Mr Grant making inquiries about an appeal for you.
ANo, he made the inquiries about the appeal but he said it was hard to find a barrister to look at it because of legal aid circumstances.
QBut you didn't have a problem with Mr Grant making those inquiries for you, did you.
AHe said if it went to an appeal he would do it.
QCan you just listen to the question please. Did you have a problem with Mr Grant making those inquiries for you about an appeal.
ANo.
QSo notwithstanding you think he has not acted in your best interests you are happy for him to go and make those inquiries about an appeal. That's correct, that's what you are saying to the court.
AI let him do it, yes.
A fourth matter which caused me disquiet was the evidence given by the appellant (and in part supported by Mr McDonald) concerning an email, purporting to confirm instructions, sent by Mr Grant on Saturday 2 April 2016 at 12.24pm. This was the Saturday before the Monday during which the prosecution closed its case and after the Friday during which, according to Mr Grant, he had taken final instructions in the court precincts concerning the appellant not giving evidence. I set out the substantive terms of the email in full.
Dear Ms Oake
I refer to your criminal trial and write by way of update and to confirm your instructions.
The trial has proceeded, in a fairly laboured and stop-start fashion through no fault of your own, before Judge Beazley and a jury.
You have pleaded not guilty to one count of aggravated intentionally cause harm. The only circumstance of aggravation is that you committed the harm in company with Emma Oake.
The prosecutor, at the commencement of the trial, specifically disavowed any lesser charges other than aggravated recklessly causing harm. On my reading, if joint enterprise is not established, you should both be acquitted.
In my view, the evidence at trial has not quite reached the strength of the case ‘on paper’. I think it is fair to say that in relation to your actions that is particularly the case.
Both [T] and [MB] failed to give evidence of allegations against you that were contained in their statements. Those allegations not mentioned are thus not before the jury.
In my view, the joint enterprise aspect of the case is not strong. However, the jury will see that [T] did suffer significant injuries and may not be happy about no one being punished for that.
The evidence of the Police Officers, especially Penney, was also not as strong as on the ‘papers’. In addition, much of their account of what they say you said is consistent with your actual instructions. It is for that reason that I provided clear advice not to cross-examine them on the differences between your account of what was said and done at the hospital and theirs. In my view, they stated your account quite reasonably. A battle on the differences between you was unlikely to end well for you and might affect your credit.
I was also of the view that it was not, on balance, in your interests to give evidence. The Crown case states – through the police officers – your account quite well. The SMS records also tell a story consistent with innocence. Finally, some of the evidence – such as [T’s] admission to taking cannabis on the day and the toxicology result consistent with meth use – also provided assistance.
On balance, given the way the prosecution have charged you, run the case and the way the evidence has fallen I consider that you made the right decision not to give evidence.
I note that I intended to call Dr Kosmas in relation to your knees and the allegation of pushing on [T]. Her other allegation of reaching around was not made in evidence.
Although I suspect Dr Kosmas would have been a reasonable witness and wrote a good report, on balance I think it was also the correct decision not to call him given the limited residual basis to do so and the risk of prosecution getting something helpful to their case out of him in cross-examination. The Police officers actually gave evidence of you having a limp and walking slowly. It is clear that there [sic] evidence will not harm you on this point and is based not on their notes but on recollection of two (2) years ago.
On Monday the DNA evidence will conclude the prosecution case. There are no defence witnesses. As you are not giving evidence, character evidence is not so important. If you have not organised it now it is fairly late in any event to proof someone. Mr Dillon and I will pursue an application to strike out the intentionally causing harm charge (which I doubt will succeed) which would leave only the reckless count. After that the parties will give closing addresses and the Judge will instruct the jury.
I would expect a verdict on Tuesday.
Yours faithfully,
Todd Grant | Principal
The email provides a concise explanation for the forensic decision made not to adduce evidence from the appellant and the reasons why character evidence was not being pursued.
As far as the former is concerned, Mr Grant, after summarising perceived weaknesses in the prosecution case, used this language.
On balance, given the way the prosecution have charged you, run the case and the way the evidence has fallen I consider that you made the right decision not to give evidence.
[emphasis supplied]
Mr Grant was not cross-examined on this statement in the email. I accept that the letter accurately expressed his understanding of the instructions he received after having conferred with the appellant the previous day. The appellant did not respond to this email. She, of course, was not obliged to. However, if, at the time, she was as upset about not giving evidence and if this had been contrary to her expressed wishes or instructions, as she now claims, there still was time to rectify the situation and here was her opportunity.
However, of particular concern is the change in the evidence given by the appellant and the evidence of Mr McDonald both designed to distance the appellant from the receipt of this email and from her failure to challenge it upon its receipt.
The email was first introduced into evidence relatively early in the cross-examination of the appellant and immediately prior to that cross-examination being adjourned in order for the evidence of Emma Oake to be interposed. The cross-examiner showed the appellant the email and time was taken whilst she read it to herself. The following exchange occurred.
QDo you agree that's an email that Mr Grant sent to you on Saturday, 2 April 2016.
AYes.
QAnd 2 April 2016 was the weekend before the Monday on which the Crown case was concluded -
AYes.
Q- do you agree.
AYes.
QSo this is before the end of the prosecution case and before, obviously, you had to present your case.
AYep.
QDo you see in the bottom paragraph the sentence 'As you are not giving evidence, character evidence is not so important'; do you see that.
AYes, yep, I see it.
QThen it says 'If you have not organised it now, it is fairly late in any event to proof someone'; do you see that.
ACharacter - yes, not so important. Yep.
QYou can read that.
AYep.
QYou agree that Mr Grant did send that email to you.
AYes.
[Emphasis added]
The cross-examination at that point was then directed to the question of whether or not there had been any discussions about character evidence prior to the sending of that email after which the adjournment was taken to enable the interposition of Emma Oake’s evidence. However, for present purposes it is to be noted that the appellant had been asked on two occasions to agree that Mr Grant had sent her the email. Each time she gave an unqualified assent. This was her opportunity to say that whilst it might have been sent, she did not recall having received it. It is to be inferred that, when she read the email in the witness box, she recognised it and had a genuine recollection of having received it or at the least had no reason to think she had not received it.
When the cross-examination resumed, counsel tendered the two page email as exhibit R5 and asked this question.
I just want to be clear, my recollection is that you've already answered, but you do agree that you received that email.
The cross-examiner may have been concerned that previously he had only asked for agreement that the email had been sent to the appellant. On this third enquiry he sought confirmation that she had received the email. Again, the appellant provided an unqualified “yes”. Exhibit R5 was addressed again a little later in the cross-examination. The appellant noted (without being asked) that the email made it sound like she had “agreed to all these things” but said she didn’t. She agreed that she did not write back to Mr Grant to tell him that it was not true or not right. She said this.
No, I just said to him on the day that it wasn’t right.[4]
[4] My understanding on hearing this evidence and in the context of the appellant’s evidence as a whole concerning the conversations she said she had had and had not had with Mr Grant, was that “on the day” was a reference to their discussion on the Friday before the email was written.
To this point there was no suggestion in the appellant’s evidence that she had not read the email prior to the resumption of the trial and the closing of the prosecution and defence cases on Monday 4 April. However, shortly after this exchange the overnight adjournment was taken. When the appellant resumed her cross-examination the next morning her evidence changed.
On the resumption, the topic of receiving and sending emails came up in the context of another issue. The appellant said this.
I didn't do any emails and I didn't receive any emails. Mr McDonald did all the emails. My computer is not working properly through the NBN so that was all his department, not mine - I had nothing to do with receiving or printing out or anything with the emails. And I didn't send that email [referring to another email, not exhibit R5].
Having heard this evidence, the cross-examiner felt obliged to revisit exhibit R5 and the following exchange occurred.
QWhen you said before that you didn't receive any of the emails, on the last occasion we spent some time dealing with one of the emails that Mr Grant sent to you after the conference that you had in the foyer of the building. Do you remember that evidence.
AYes.
QYou agreed that you had received that email, this is R5, which was a two-page email where Mr Grant set out the instructions that you had given him.
AI agreed that I'd seen the email but I didn't receive it. I didn't physically get it off the computer. Rory had got all the emails and responded to all the emails but I know what you are talking about.
QAnd you agree that you had seen that email on the day that it was sent to you.
AI don't know if it was sent on the same day as what I saw it but I recall the email.
QYou at least agree that you had seen it before the end of the trial.
ACan I just have a look at the email again please?
QOf course. Looking at R5.
. . . .
QHave you had a chance to read through that.
AI've seen this email. But I can't say when I actually saw it because it's dated on the Saturday and our internet with NBN it doesn't always work properly so I can't honestly say that I saw it on the 2nd but I have seen the email.
QAnd do you agree that you saw it before the end of the trial.
AI can't 100% say I saw it before the end of the trial because Mr McDonald would have got the email, he would have had to have then printed it out and then give it back to me. So I can't 100% say that I'd seen it before the end of the trial.
QYou gave evidence on the last occasion that you disagree with a number of the things that are said in that email, don't you.
AYes.
QYou say that Mr Grant has in effect misrepresented the conversation that you had, don't you.
AHe didn't put evidence - is that what you -
QOn the last occasion.
AYes.
QYou said that there are things in that email that you disagree with.
AYes.
QAnd when I asked you questions about it on the last occasion I asked you 'Did you write back to Mr Grant to say "Well that's just not true". You said 'To be quite honest I didn't write any of these emails. My husband did it'.
AThat's right.
QI said 'No, I'm asking you did you write that to -' you said 'No', I finished the question ' - Mr Grant and say "That's not right"'. You said 'No, I just said to him on the day that it wasn't right'. Then you go on to say 'He's making up the excuse that he wrote a good report. He hadn't given - been on a trial as a witness before and so he was worried about him being cross-examined' that was in relation to Dr Kosmas.
AOkay. Yep.
QSo at no point when I was asking you questions about this email did you say 'I didn't even get this', did you.
ANo, you didn't ask me. You asked me have I seen it.
[Emphasis added]
A little later on the following exchange occurred.
QDid [Mr McDonald] go to each day of the trial.
AYes, he did.
QSo this was obviously a very big thing in your lives at the moment, wasn't it.
AYes.
QSo you were discussing with Mr McDonald on a daily basis really -
AOf some kind.
Q- what was happening in the trial.
AWell, he was there most of the days in the courtroom but we didn't really discuss things while the trial was going on because I was in the dock and he was in the -
QBut after the end of the trial on each day, you would discuss with Mr McDonald how the trial was progressing.
ATo a certain extent, yes.
QAnd it was obviously something that was very important in your life at the time.
AYes.
QDo you remember Mr McDonald asking you any questions about why Dr Kosmas wasn't going to be called.
AHe would have asked me something but I can't recall the exact words.
QDo you remember the conversation.
AHe would have queried about it. I'm not too sure of the exact words that were mentioned.
QDo you remember the conversation.
AThere would have been a conversation. When and where, I'm really not too sure.
QSo you're not suggesting that you didn't see that email. You just don't now recall exactly when you did.
AThat's right.
This change in the appellant’s evidence needs to be considered in the context of Mr McDonald’s evidence on this topic. The effect of his evidence was that whilst he and the appellant lived apart they shared an email account and he was responsible for checking the emails and advising the appellant of any emails that concerned her. When he wished to print an email he had to do so at the local library. At first he said that he went to the local library on the Saturday morning and attempted to print out the email that became exhibit R5 but was unsuccessful in doing so for some technical reason. However, when confronted with the notion that the email was sent at 12.27pm by which time the library would have closed on the Saturday morning, Mr McDonald effectively retracted that evidence. Nevertheless, the burden of his evidence was that he had been unable to print out a copy of the email in time to show it to the appellant before the trial resumed on the Monday and that to the best of his recollection he had not done so. However, it was not until towards the very end of his evidence that Mr McDonald revealed that he was able to access emails on his mobile telephone and that he would have been in a position, at the least, to show the email to the appellant at the latest on the Monday morning before court resumed.
The appellant’s evidence given on this topic after the overnight adjournment was obfuscating and evasive. I am satisfied that the appellant was made aware of the contents of the email, exhibit R5, sometime after it was sent and prior to the recommencement of the trial on the Monday morning, that is, in time to be able to remonstrate with Mr Grant about the matters in it stated as being in accordance with her instructions prior to the prosecution case being closed.

I say that for these reasons. At no time in her evidence did the appellant clearly and unequivocally deny receiving or at least reading the email. Indeed, her early evidence was clear to the effect that she had received it. At the end of her evidence on this topic she conceded that she did see the email but could not now recall exactly when. Further, the email address provided to Mr Grant by the appellant was the joint email address held by her and Mr McDonald. It was the intended means by which Mr Grant was to communicate with the appellant and she had a system or a process whereby she would be advised of emails of importance to her by Mr McDonald. The email in question was an important one. Mr McDonald attended the trial on each day and the trial and its outcome was of importance to both the appellant and to Mr McDonald. As such, I find it highly unlikely, almost inconceivable, that Mr McDonald having received such an email would not have communicated its contents in some way, if only by allowing the appellant to read it on his telephone as soon as practicable after its receipt and, in any event, first thing on the Monday before the trial resumed.
The attempts by Mr McDonald and the appellant to distance themselves from this email do them no credit. It is a further factor informing my view that the appellant was not always a witness of truth or, at the least, has given evidence born of reconstruction that is so unreliable that little weight generally can be placed upon it.
Having made these general observations in support of my conclusion that I am not prepared to rely upon the appellant’s evidence, in particular, where it departs from that of Mr Grant, it is the case that the appellant, during her cross-examination, did make a number of concessions and departures from her evidence in chief in connection with the three central topics in issue. Before turning to the appellant’s evidence on each of these topics I will briefly summarise the evidence given by Emma Oake and Rory McDonald. In my view, they provided no reliable support for the appellant’s position with respect to any of her complaints.
Evidence of Emma Oake
The effect of Emma Oake’s evidence in chief was that she was informed on several occasions by different lawyers, including Jonathan Stevens, the barrister who had earlier been briefed and John Dillon who took over Emma Oake’s matter from Mr Stevens shortly before the trial was due to commence and acted as counsel at the trial, to the effect that it was simply not possible for her to have a trial by Judge alone.
Emma Oake used quite strong and definitive language in this respect. For example, she said she was told by Mr Stevens that trial by Judge alone “wasn’t an option” and “that was the end of it”. According to Emma Oake, the first barrister told her “there was no option, it was set in stone”. Notwithstanding this apparently definitive advice previously received more than once, she said that she again raised the topic of trial by Judge alone with Mr Dillon on the morning of the trial and was told that it was too late and that the trial would proceed by jury. This evidence is directly contradicted by that of Mr Stevens and is not supported by that of Mr Dillon (see below).
Further, the evidence given by Emma Oake on this topic to the effect of there being no option and that it was “set in stone” does not ring true. The process of electing for a trial by Judge alone prior to arraignment in the District Court, that is, during the period when Mr Stevens was in control of the matter, is a very straightforward one; essentially, it requires only that a form of election signed by the client, and a very brief statement signed by the solicitor that the appropriate advice has been given, be filed with the court. It makes no sense that, if a strong preference had been expressed by Emma Oake for a trial by Judge alone, such would simply have been rejected out of hand and overridden by Mr Stevens. It makes sense that a lawyer might give robust advice to the effect that trial by jury might be strongly preferable (or, depending on the nature of the matter, that a trial by Judge alone might be preferable). However, it is intrinsically unlikely that an experienced criminal lawyer would simply overrule their client’s clearly expressed choice. It is in this context that Emma Oake’s evidence and that of Mr Stevens and Mr Dillon on this topic is to be assessed. As indicated later in these reasons, I accept the evidence on this topic and generally given by those two practitioners. I find that Emma Oake has misstated the nature of the advice she received on this topic.
Emma Oake also in my view overreached in her evidence with respect to the decision whether or not she would give evidence at trial. She said she was told she “couldn’t give evidence” and that this would be “kept for an appeal”. Initially, she said that she was told she “shouldn’t and couldn’t give evidence”. However, she resiled from the word “shouldn’t” and, in effect, maintained that her understanding was that she couldn’t. Again, her evidence in such absolute terms is intrinsically unreliable. The evidence by its terms acknowledges that there was a conversation about whether or not she should give evidence but the notion that any experienced criminal lawyer would advise to the effect that she was not entitled to give evidence is not credible. The reference to keeping her evidence for an appeal raises the same considerations.
Furthermore, the fact that this latter notion was also propounded by the appellant in her evidence such that two lawyers are said to have advised their respective clients in this way, causes me to accept the submission put by the respondent which was in these terms.
It is submitted it is more than a coincidence that a similar fanciful allegation has been made by the appellant. The similarity of their allegations when such allegation is so contrary to what would be expected is only consistent with joint fabrication on their part.
I am not prepared to accept Emma Oake’s evidence. It is overstated and in my view demonstrates reconstruction, probably occurring after discussions with her mother but, in any event, in an effort to assist her mother’s case on appeal.
Evidence of Rory McDonald
Mr McDonald gave inconsistent evidence with respect to what he had heard discussed between the appellant and Mr Grant concerning the question of a trial by Judge alone. Ultimately, he conceded that he had no clear memory of what was said on this topic. Indeed, at the end of his cross-examination the following exchange occurred.
ANo, not at all. I'm trying to recall to the best of my ability, with truthfulness, what I remember occurred. Things go out my mind. This has been going over in my mind for the last three or four years, this court case, because of what's happened and the injustices that have occurred. I'm not trying to embellish or make up anything. I'm trying to be as honest as I can.
QSo over the last couple of years you have given a lot of thought to this.
AAbsolutely.
QIs it possible that you have reconstructed some events in your mind after this period of time.
AAll the time.
QAnd it is not clear to you now which parts you have reconstructed and which parts that you are remembering accurately.
ANo. I'm pretty sure what's the truth and what's not the truth, and I'm pretty sure I've got a good sense of who is covering up the truth because I believe some of it has been covered up.
[emphasis added]
Whether or not Mr McDonald was “trying to be as honest as [he] can”, I am not satisfied that I can rely upon any of his evidence as representing an accurate recollection by him of events as they took place at the time.
On the topic of whether or not the appellant was to give evidence, Mr McDonald gave internally conflicting evidence. However, he ultimately conceded that the appellant was not told “she didn’t have a choice” but was told that which Mr Grant “would prefer” regarding whether she gave evidence. He also conceded that he had no memory of ever hearing the words “you are not allowed to give evidence” or “you have no choice in the matter” as being said to the appellant by Mr Grant. This is of some significance given that Mr McDonald said that he was present the whole time Mr Grant spoke to the appellant outside court on Friday 1 April 2016.
A substantial component of Mr McDonald’s evidence concerned the issue of whether, and if so, how, important emails sent by Mr Grant were received by the appellant. I have briefly dealt with this evidence earlier.
On the topic of character witnesses, Mr McDonald disagreed that he and the appellant were made aware that the persons who might give references would be required to give evidence at the trial rather than simply written references. For reasons already given, this evidence is intrinsically not credible. There may have been joint reconstruction on the part of Mr McDonald and the appellant with respect to this issue. At the least, Mr McDonald, like the appellant, has conflated the notion of obtaining written references for sentencing purposes with the notion of adducing oral evidence as to good character during a trial.
I agree with the respondent’s submission that the reliability and the accuracy of Mr McDonald’s evidence is to be assessed against the desire of Mr McDonald to support the appellant’s version of events. It is inconsistent with the evidence of Mr Grant, which I accept, and I place no reliance on Mr McDonald’s evidence.
The appellant’s evidence on the three topics
Trial by Judge alone
The appellant’s evidence in chief dealing with this issue was to this effect.
(i)Prior to the trial, the appellant was not aware that there was a choice between trial by Judge alone or trial by jury, “I thought you got what you got”.
(ii)If the appellant had known that she could make a choice she would have chosen a Judge. This preference or choice is something she has arrived at in hindsight because she “wasn’t aware of [the choice] at the time”. The appellant said that she “just let the trial run its course” and that she “didn’t really know [she] could complain about it”.
(iii)The appellant gave a reason as to why she says she would have chosen for a trial by Judge alone. She thought the matter was too complicated and difficult for a jury.
(iv)The appellant, on a number of occasions, was adamant that there had been no discussion with or explanation by Mr Grant of such a choice.
(v)The appellant had no conversation with her previous lawyer, Jonathan Stevens, about having a trial by Judge alone.
When the appellant came to be cross-examined on this topic her evidence changed. Initially in cross-examination, she agreed she had given evidence both before the Court and in previous affidavits that she had never received advice about the option of having a trial by Judge alone. She then moved to a position of saying she was told she had to have a jury. This was taken up by the cross-examiner when he asked her who told her that and the appellant nominated Mr Grant, “I think it was Todd, Todd Grant”. Whilst she was not 100 per cent sure who told her this, she could not recall anybody else speaking to her about the fact that she had to have a trial by jury. She could not remember and could not say one way or the other whether Jonathan Stevens may have spoken to her about the difference between trial by Judge alone and trial by jury.
The appellant thought that the conversation with Mr Grant on this topic occurred in his office but she was not sure and could not recall any of the details of the conversation. Later in the cross-examination, the appellant said that she was told prior to the trial that it would be a jury trial and that she may have been told this either by Mr Grant or Mr Stevens – “I can’t really recall which one said it first or which one brought it up”. What she said she did remember was “I wasn’t told that I had a choice”. She also remembers saying at that point “I would prefer to have a trial by Judge alone”.
To this point, the appellant’s evidence in cross-examination was quite inconsistent with that given in chief. Taken together, her evidence was very uncertain as to whether she knew there was a choice prior to the trial commencing, or whether she had a conversation on the topic and, if so, whether it was with Mr Grant or Mr Stevens. Further, her language as to what she wanted to happen softened to “I would prefer”.
The appellant was cross-examined extensively on the topic of what she would have done if she in fact had been advised by Mr Stevens or Mr Grant that she should proceed by way of trial by jury. The appellant’s evidence throughout this lengthy passage was inconsistent, at times evasive in that the appellant was not prepared to engage with the cross-examiner’s questions and ultimately, a product of hindsight in the sense that it represented what the appellant now wishes she would have done rather than a genuine account of what conversations did occur and as to what choice she did in fact make.
I do not accept the appellant’s evidence (to the extent maintained) that she was not advised, as to the alternatives between a trial by Judge alone and by jury, by Mr Stevens nor that when she raised the matter again with Mr Grant she was told that she had no choice. The affirmative of these propositions is inconsistent with the evidence of Mr Stevens and the evidence of Mr Grant. Further, the appellant’s evidence on this topic (as was her evidence generally) was beset with inconsistencies as to what she could and could not recall.
On a number of occasions the appellant conceded that if she had been made aware of the choice but had been advised by her lawyer to have a trial by jury she would not, ultimately, have insisted on proceeding against their advice but she maintained that at no time was she given a choice. On one such occasion she said this.
Again I say I had no choice but I would have had to go on his advice, I'm assuming that he knew the best but my choice, given it, would have been by judge.
I understood this evidence at the time it was given and the evidence of the appellant on this topic generally to be to the effect that she had not been given a choice but if she had been given a choice she would have continued to argue or press for a trial by Judge alone, but ultimately would have accepted her lawyer’s advice to have a trial by jury.
Finally, towards the end of the lengthy cross-examination on this topic, the appellant expressed a clear recollection of the words “no choice” being said to her by Mr Grant on the topic of trial by Judge alone and that these words were said to her during a discussion in his office (that is, prior to the commencement of the trial). This asserted recollection is at odds with the appellant’s evidence in chief given on this topic, which was as follows.
QHad you discussed with Mr Grant the difference between trial by judge alone and trial by jury.
ANo.
QWhat did you expect when you walked into the courtroom, did you have any expectation one way or the other.
AHe told me it was trial by jury but I wasn't aware that I had a choice to voice my opinion on what I wanted.
QWas any comment made about jury trials or was it you just simply weren't aware there was a choice between the two.
AI wasn't aware there was a choice between the two. I thought you got what you got.
QIf you knew there was a choice, for what choice would you have elected.
AI would have chosen a judge.
QIs that a choice in hindsight or one that you were aware of at the time.
AI wasn't aware of it at the time.
QDid you say anything to him at court about that issue or did you just let the trial run its course.
AI just let the trial run its course, I didn't really know I could complain about it.
At best for the appellant she engaged in reconstruction as her evidence progressed through both examination in chief and cross-examination. I accept that she may have done this in order to suit what may, now in hindsight, be a genuine feeling of grievance with respect to this and the other topics.
On the basis of the evidence given on this topic by both Mr Grant and Mr Stevens, which I accept, the appellant at all material times was aware of the entitlement to either elect in time for trial by Judge alone or to bring an application for permission to make a late election. In either case the appellant would only have succeeded if Emma Oake had joined in the election or application. Given my findings above concerning the evidence of Emma Oake, and below concerning the evidence of Mr Stevens and Mr Dillon on this topic, there is no evidence on which to base such a finding.
In any event, I am satisfied on the basis of the evidence of Mr Stevens and Mr Grant that the appellant was made aware of her entitlements but advised that a trial by jury was the more appropriate for a matter of this nature. By failing to instruct either Mr Stevens or Mr Grant to the contrary, she, at least, implicitly accepted that advice.
The decision not to give evidence
The essence of the appellant’s evidence in chief on this topic was as follows.
(i)During the conference in Mr Grant’s office prior to the trial commencing he basically prepared the appellant for giving evidence.
(ii)Mr Grant kept telling the appellant (apparently during the trial), “yes, you can give evidence” and “no, you can’t”. She said that he really could not make up his mind.
(iii)It was not explained to the appellant why, at the end of the day, she did not give evidence, “he just said that we weren’t going to give evidence because sometimes, you know, you don’t need to give evidence”.
(iv)When asked whose decision it was not to give evidence, the appellant answered:
His, his decision, and I took that on his advice, even though I wanted to. He didn’t really listen to a lot of things I had requested.
(v)The appellant maintained throughout her examination in chief a denial that she was given a choice. Nevertheless, she agreed that she took his advice not to give evidence but because “I thought I had no choice”.
(vi)The appellant at one point said that she knew there was a choice “but I wasn’t aware that I could push my opinion any further than what I had …”.
(vii)Mr Grant said (more than once) that “if there’s anything that needs to be brought up we can use that at an appeal, we’d keep it under our sleeves”.
(viii)The appellant said that she did not feel that she could ignore Mr Grant’s advice and give evidence as she says she had wanted to – “I thought that I had to basically do what he instructed me to do”.
(ix)In addition to the discussion in his rooms before the case commenced, there were discussions during the course of the case about her giving evidence but Mr Grant kept changing his mind.
(x)The appellant agreed that she was always going to take the advice of Mr Grant because “I thought I had to because that’s who I was paying”.
At the end of the examination in chief on this topic, there was no clearly stated allegation by the appellant that Mr Grant had failed to advise her or discuss with her the nature of the choice that was before her whether to give evidence or not to give evidence. Further, there was no clearly stated allegation that, at the time the decision not to give evidence was finally arrived at, the appellant told Mr Grant that she did not accept his advice and wanted to proceed to give evidence nonetheless. To the contrary, the appellant indicated on a number of occasions that she was prepared to accept Mr Grant’s advice even though it was against her own desire to give evidence.
In cross-examination, the appellant acknowledged that she could not remember the words used by Mr Grant at the time the decision was made for her not to give evidence. She agreed that this conversation occurred on Friday 1 April 2016 outside of court. During cross-examination the appellant reiterated that, throughout the trial until that point, Mr Grant had been indecisive sometimes saying “yes”, other times saying “no” to the question of whether he thought she should give evidence. She maintained that at the meeting on 1 April, he told her that she was not to give evidence. But, again, she conceded she could not recall the precise words. The appellant maintained throughout her evidence that Mr Grant told her to the effect that the prosecution case was not strong enough to support a conviction and that she should be acquitted. It was in these circumstances that Mr Grant ultimately took the view that the appellant would be better off not giving evidence.

Mr Dillon said that he had a number of conversations dealing with the topic of Emma Oake giving evidence during the course of the trial. He said that he told Emma Oake that it was her decision as to whether she would give evidence or not and that he discussed with her various matters relevant to that decision. Mr Dillon said that he tested her in relation to a particular matter as to which he thought she would be cross-examined. At the end of that process he expressed the view that she should not give evidence and she accepted that advice. He obtained signed instructions to that effect. Mr Dillon denied at any time telling Emma Oake that she could not give evidence. He said that he made it clear to her that it was her choice.
Mr Dillon is an experienced criminal lawyer and trial counsel. There was nothing about the manner of his giving of evidence or the content of his evidence that would cause me not to accept it and nothing arose during cross-examination to cause me to doubt that he was honestly endeavouring to assist the Court. I accept his evidence as reliable.
Evidence of Jonathan Stevens
Mr Stevens acted for both the appellant and Emma Oake through the committal process and at the time of the arraignment in the District Court in August 2014. His file contained no notes concerning, and he had no specific recollection of, any conversation prior to the arraignment with the appellant or Emma Oake concerning the trial proceeding by way of Judge alone. However, his normal practice is that this matter is discussed. He gave this evidence.
Normally the trigger is, once they have been committed from the Magistrates Court to either the District or Supreme Court, then the issue becomes one of the matters that’s discussed because, of course, an election needs to be made, but, as I said, I don’t have any specific recollection of discussing the matter, I only presume that I followed my normal course of conduct.
Mr Stevens said that there were particular types of offences with respect to which he would advise clients to elect for trial by Judge alone including “matters where there’s a particularly unsavoury community view of such alleged offences”. He gave by way of examples matters involving child sex or paedophilia. However, he said that he did not have a strong view on the topic of whether any particular matter might better proceed by way of jury or Judge alone. He gave this evidence.
Certainly I might suggest in certain circumstances, particularly the nature of the case, perhaps a judge sitting alone might be preferable, but I certainly don’t, so to speak, have a dog in the fight and I don’t have a particular view. The words that I would use would be that “It’s your choice. You have a personal choice to make” and offer advice as to whether trial by judge alone or trial by jury.
Mr Stevens said he had no reason to believe that he did not have a conversation of that nature with both the appellant and Emma Oake. He gave this evidence.
QDo you recall Emma Oake ever saying to you ‘I want a trial by judge alone’.
ACertainly not.
QDo you ever recall [the appellant] saying to you ‘I want a trial by judge alone’.
ACertainly not.
Mr Stevens said that there was never any such conversation but if there had been he would have discussed the matter with his clients in terms of the “pros and cons” and would have followed their instructions should they have wished to elect for a trial by Judge alone, provided they both agreed. Mr Stevens denied saying to either the appellant or Emma Oake “you don’t have that option” or “no, you can’t have trial by Judge alone”. He did not say to either “you don’t have a choice”.
Mr Stevens could not recall any conversation with either the appellant or Emma Oake after they had been arraigned, raising the topic of trial by Judge alone. However, had he received such late instructions he would have proceeded in the following manner.
Well, in the situation where there’s a co-accused, they both would have to agree and I could – if they both elected, or perhaps in circumstances where there’s no co-accused, then I would make application to the court out of time or not and, invariably, from my experience what I see is that those – until very close to the day of trial, those applications are invariably granted.
Mr Stevens’ evidence did not vary materially during cross-examination. I accept his evidence as credible and reliable.
Consideration and conclusions
The essential question on appeal is whether, as a result of the actions of the appellant’s legal advisers prior to and during the trial concerning the three matters complained of, taken individually or in aggregate, there has been any error or errors by counsel that individually or collectively gave rise to a miscarriage of justice.
The essence of the appellant’s argument is as set out in her counsel’s Amended Written Submissions prepared after all of the evidence on appeal, but for that given by Mr Stevens and Mr Dillon, had been heard.
As to the issue of trial by Judge alone it was submitted that the evidence supports a finding that the appellant wished for or would have preferred a trial by Judge alone but reluctantly accepted the advice that the trial would be by jury. This is an oversimplification of the evidence and I refer to my analysis of the evidence given by all witnesses with respect to this issue earlier set out. I am satisfied that the appellant was, at all material times, aware of her right to elect for a trial by Judge alone but accepted the advice given that trial by jury was the appropriate course. She at no time instructed Mr Stevens to make (jointly with Emma Oake or otherwise) an election for trial by Judge alone. And at no time did she instruct Mr Stevens or Mr Grant to make an application for a late election. It was not submitted that a failure to proceed by Judge alone was itself productive or indicative of a miscarriage of justice. I would dismiss this ground of appeal.
As to the issue of character evidence, it was submitted by the appellant’s counsel that she had been advised about good character evidence but:
[N]ot in terms that specifically and clearly addressed the generic difference between good character evidence and references.
There was also this submission:
Despite the way the Appellant put it in her evidence the Appellant did not grasp the difference between evidence of general good character and being a nice person.
Again, for the reasons earlier given during my review of the evidence, I am satisfied that the appellant was adequately advised in this respect. In particular, I am satisfied that the appellant (at the appeal) had conflated the advice given with respect to the potential for character witnesses for the trial and with respect to references for use during sentencing submissions. The appellant had failed to produce character witnesses for proofing by counsel until it had become too late in the trial for any such witness to be arranged. The decision by counsel not to call Dr Kosmas was a decision based on forensic considerations. This was a forensic decision of counsel that has not been shown to be unreasonable and was within counsel’s remit. I would dismiss this ground of appeal.
As to the issue of the appellant not giving evidence, it was submitted that:
[W]hether the Appellant gave evidence or not at her trial was not … adequately put to her or explained to her.
I reject this submission. For the reasons given during my review of the evidence, I am satisfied that the appellant was aware of her right to give evidence but accepted, albeit reluctantly, the advice of her counsel that her defence would be better served by her not giving evidence.
My conclusions to this point are sufficient to dispose of the three complaints concerning the conduct of Mr Stevens and Mr Grant during the trial as articulated by ground 2 of the appeal. No sufficient factual basis for any of the complaints has been established. If ground 2 of the appeal is confined to its terms as, ordinarily, it ought to be, it has not been made out and the appeal should be dismissed. However, in her final submissions, counsel for the appellant made submissions by way of expanding the nature of the complaint concerning the appellant not having given evidence.
On the facts, as I have found them, the decision not to give evidence can be characterised as a forensic decision made by counsel in accordance with the appellant’s instructions or as a forensic decision made by the appellant on the basis of counsel’s advice. However, the appellant’s counsel further submitted to the effect that the failure of the appellant to give evidence was itself productive of a miscarriage of justice on the basis that, according to counsel on appeal, there was no other mechanism by which the appellant could convince the jury that “her state of mind was for some form of a family intervention falling short of physical punishment”. Counsel developed this submission by reference to other aspects of the evidence given at trial and on appeal. However, ultimately, the submission went no further than to the effect that other counsel, including counsel on appeal, may have made a different forensic decision at trial about whether the appellant ought to give evidence. It was not submitted that the decision in fact made was not reasonably open to counsel at trial. Nor was this a ground of appeal.
The High Court in Craig v The Queen[8] has recently considered the circumstances in which a miscarriage of justice might be established consequent upon counsel giving incorrect advice material to an accused’s decision not to give evidence. In Craig the accused’s election not to give evidence in his trial for murder was informed by a number of considerations. One such, was the incorrect advice of counsel that if he did give evidence it was likely he would be cross-examined on his prior criminal record which included an offence involving the fatal stabbing of a man. The High Court upheld the Queensland Court of Appeal’s conclusion that there had been no miscarriage of justice.
[8] [2018] HCA 13.
In the present case, Mr Grant did not give the appellant incorrect advice and as such it is not necessary to trace the reasoning underpinning the High Court’s conclusion in Craig. However, the Court[9] made the following observations directly applicable to the present case.
The appellant’s complaint is with the application of an objective test drawn from the judgments in TKWJ v R to the Court of Appeal’s determination that the incorrect advice did not occasion a miscarriage of justice. As the appellant observes, the analysis in TKWJ is concerned with challenges to forensic judgments that are within counsel’s remit. The objective test that TKWJ holds is to be applied to the determination of challenges of that kind takes into account the wide discretion conferred on counsel under our adversarial system of criminal justice. A necessary consequence of that discretion is that the accused will generally be bound by counsel’s forensic choices. It is only where the appellate court is persuaded that no rational forensic justification can be discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice.
By contrast, the appellant points out that his challenge is not to a forensic choice made by counsel but to the circumstance that counsel’s incorrect advice was material to a forensic choice which was reserved for him to make personally. The appellant’s argument is posited on the proposition that the accused’s informed choice to give evidence is an essential condition of a fair trial according to law. At its widest, the argument is that any material error in legal advice on the accused’s choice to give evidence denies that a choice not to give evidence is an informed choice and for that reason occasions a miscarriage of justice. The appellate court, on this analysis, does not stay to consider the causal relation between the incorrect advice and the conduct of the trial or its outcome.
[9] Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ at [23]-[24].
Counsel’s role in the present case with respect to the question of giving evidence comprised a justifiable forensic judgment within counsel’s remit. The present is not a case where counsel gave the appellant incorrect advice concerning her right to give evidence nor of there being no rational forensic justification for counsel’s decision to advise the appellant against giving evidence. Counsel for the appellant did not seek to justify the latter proposition. As such, there is no warrant for this Court to consider whether the making of the decision not to give evidence itself constituted a miscarriage of justice. The appellant should be held to be bound by the decision she ultimately made. I would dismiss the ground of appeal concerning the appellant’s failure to give evidence, even on the expanded version argued for by counsel in her final submission.
The appellant also submitted to the effect that even if none of the three complaints on its own justified a finding of miscarriage of justice, the three in aggregate would do so. Given my conclusions concerning each complaint individually, I reject that submission. I would dismiss the appeal.
LOVELL J.
I agree with the reasons of Nicholson J and the orders he proposes.

[2019] SASCFC 30

2 April 2019

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Sentencing

Intention