R v Oake

Case [2019] SASCFC 30

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.

  1. I would dismiss the appeal.  I agree with the reasons of Nicholson J.

    NICHOLSON J.

    Introduction

  2. 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…

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R v Oake [2019] SASCFC 30
Case
[2019] SASCFC 30
Decision Date

CaseChat Overview and Summary

The appeal before the Full Court of the Supreme Court of South Australia concerned a conviction arising from an incident where the appellant, along with her daughter Emma Oake, allegedly lured and assaulted the complainant, who was 15 years old at the time. The complainant alleged she was punched, bitten, had her hair cut, and her ankle broken while being dragged by a car driven by the appellant. The appellant and her co-accused blamed the complainant for a break-in and theft at Emma Oake's house.

The central legal issues before the court were whether the appellant's legal advisers' conduct, both before and during the trial, concerning three specific matters, individually or collectively, resulted in a miscarriage of justice. These matters included the appellant's alleged desire for a trial by judge alone, the advice received regarding good character evidence versus character references, and the decision not to give evidence at trial.

The court considered the evidence presented on appeal, including the appellant's own testimony, which was found to be unimpressive, containing hearsay and inconsistencies. The court was satisfied that the appellant was adequately advised regarding her right to elect for a trial by judge alone and that she accepted the advice that a jury trial was appropriate, never instructing her counsel to pursue a judge alone trial. Regarding character evidence, the court found the appellant had conflated advice about character witnesses for trial with references for sentencing, and that the decision not to call a particular witness was a reasonable forensic decision by counsel. Finally, concerning the appellant not giving evidence, the court concluded that the decision was not inadequately explained and that the appellant's own evidence on appeal suggested that giving evidence at trial might have harmed her case.

The Full Court was satisfied that the appellant was adequately advised on all three matters and made free and informed decisions. Consequently, the court found no miscarriage of justice and dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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]

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

PEEK J (dissent) NICHOLSON J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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.