SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.405 of 2000
| THE QUEEN |
| v. |
| CLINTON JAMES OSBORNE |
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JUDGES: | PHILLIPS, C.J., CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 and 30 July 2002 | |
DATE OF JUDGMENT: | 3 October 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 156 | |
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Criminal Law – Appeals against conviction and sentence - Termination of counsel’s retainer – Application by unrepresented accused for further adjournment of trial – Principles relevant to consideration of adjournment application – Meaning of right to a fair trial - Whether trial unfair to accused – Whether trial resulted in miscarriage of justice – Test applicable to determine whether miscarriage of justice occurred - Whether accused deprived of real chance of acquittal - Leave to appeal refused.
Criminal Law - Sentencing – Sentencing error – Sentencing judge taking into account matter adverse to applicant not necessarily determined by jury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr. G.J. Lyon | Hallet West Johnston |
PHILLIPS, C.J.:
I have had the benefit of reading the judgment of Chernov, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.
CHERNOV, J.A.:
The applicant, Clinton James Osborne, who is now aged 33, seeks leave to appeal against his conviction in the County Court at Melbourne on 23 November 2000 on two counts[1] of recklessly causing injury to Mark Wayman (“the victim”). He also seeks leave to appeal against the sentence that was imposed on him on 8 December 2000 in respect of those convictions, namely, a total effective sentence of 12 months’ imprisonment. Before considering the grounds of the applications, it is necessary to set out the relevant circumstances leading to the convictions and sentence.
[1]Counts 15 and 19.
Circumstances of Alleged Offending
In late 1995, when the applicant was aged 26, he became involved in a relationship with a 14 year old girl whom I shall call “Melissa”. They started living together in Shepparton some time in early 1996 and this situation continued until about mid 1998 when Melissa left the applicant’s premises in the circumstances described later. The applicant did not deny that he and Melissa had a relationship during this period, but he denied that they were involved in a sexual relationship.
In early June 1998 the applicant left Shepparton for Western Australia and returned a few weeks later, on 7 July. During this period, Melissa developed a relationship with the victim. While the applicant was away interstate, she left the premises in which she and the applicant had resided, took her belongings as well as
some items that belonged to the applicant and went to stay with the victim at his mother’s house. Fearing repercussions from the applicant upon his return to Shepparton, Melissa, the victim and Melissa’s brother, Joseph (“Joseph”), acquired bus tickets to Mackay in Queensland, intending to travel there on the evening of 7 July.
The applicant discovered in the early hours of 7 July that Melissa had moved out of his house, but he then did not know where she had gone. Consequently, he set about trying to find her and all but three of the offences with which the applicant was charged, namely, those reflected in counts 4 to 20 to which reference will be made later, arose out of his conduct during his search for Melissa and in the period shortly after he had discovered her whereabouts. During that time, he angrily confronted a number of people in order to ascertain the identity of the person with whom Melissa had formed a new relationship and where they were then residing. His alleged behaviour in that regard included abusing and threatening with violence some of those whom he confronted[2] and assaulting one of them, namely, Kenneth Ross William Anderson (“Anderson”) at his home at 52 Wyndham Street, Shepparton. The alleged assaults against Anderson were the basis of counts 4 and 6 and the alleged circumstances of his entry upon Anderson’s premises were the subject of count 5 (aggravated burglary). The applicant eventually ascertained that Melissa was staying with the victim at the house of his mother at 5 Alexandra Parade, Shepparton. At approximately 11.30 a.m. the applicant went to the victim’s house which was then occupied by the victim, Melissa, and her brother Joseph. He went to the front door which was closed but unlocked. The Crown case was that, when Joseph heard a car pull up in front of the house, he went to the door to see who was there but before he opened it, it was opened by the applicant who was in a very angry state, bordering on uncontrollable rage. It was alleged that he punched Joseph in the jaw with a clenched fist causing him to fall to the ground. The circumstances of this alleged entry formed the basis of count 12 (aggravated burglary) and the alleged assault was reflected in count 13.
[2]Such actions formed the basis of counts 7 to 11.
It was further alleged by the Crown that the applicant then proceeded to the loungeroom where Melissa and the victim were still seated. The applicant noted that the victim was wearing his underpants which, as his Honour observed in his sentencing remarks, increased the applicant’s anger. While in that state, the applicant allegedly punched the victim on the head and face a number of times causing swelling to the side of the victim’s face and a mark under and over his eyes. This alleged assault on the victim formed the basis of the alternative counts 14 and 15, namely, intentionally causing injury to the victim (count 14), alternatively, recklessly causing him injury (count 15). While this was taking place, Melissa fled to a nearby house where she hid in the garden before knocking on the door and seeking assistance.
After punching the victim, the applicant searched the house for Melissa. Being unable to find her, he left through the front door. Joseph then locked the door whilst the victim telephoned the police. A short while later the applicant returned to the house, banged on the front door and demanded to be let back in. Joseph initially refused to open the door, but changed his mind fearing that the applicant would break the door down if it was not opened to him. The circumstances of that entry formed the subject of counts 16 and 17 (threatening to kill Joseph and aggravated burglary respectively). The applicant allegedly then again confronted the victim and assaulted him by pushing him back on the couch while yelling at him. He lifted him up and down by his hair before placing his thumb into the socket of one of the victim’s eyes. This second assault on the victim was the subject of the alternative counts 18 (intentionally causing injury) and 19 (recklessly causing injury). His Honour noted in his sentencing remarks that the victim, who was considerably younger than the applicant, was effectively defenceless against the applicant who was a much bigger and stronger person and who had considerable boxing experience, having gained the Victorian Light Heavyweight Boxing Title in 1986. During this incident, Joseph fled the premises. The applicant continued to search the house for Melissa and in the course of doing so, allegedly threatened to kill the victim.[3] The applicant then left the house and the victim ran away and hid on a neighbouring property until the police arrived.
[3]That threat constituted the basis of count 20.
Presentment, Verdicts and Sentence
On 23 October 2000, the applicant was presented in the County Court at Melbourne on a presentment (“the first presentment”) containing 18 counts, but as will be explained later, on 31 October a fresh presentment, containing 20 counts, was filed over and the proceedings on the first presentment were permanently stayed. The second presentment comprised counts 4 to 20 to which reference has already been made, and counts 1 to 3 which alleged that between 1 March 1996 and 3 November 1997 the applicant took part in acts of penile penetration of Melissa, a child aged between 10 and 16 years, to whom he was not married. The applicant was arraigned on the fresh presentment and pleaded not guilty to each count. At the close of the Crown case, the applicant was acquitted by direction in respect of counts 1 to 3 and the trial proceeded in respect of the remaining counts. As I will explain later, the applicant dismissed his counsel during the course of the trial although he did so after counsel had cross-examined a number of key Crown witnesses, including the victim and Joseph. Thereafter, the applicant represented himself at the trial. He did not give evidence in support of his case but called two witnesses (whose evidence was not relevant to the counts in respect of which the applicant was convicted). The jury convicted the applicant on counts 15 and 19 but acquitted him of the remaining charges.
His Honour heard the plea in mitigation that was made by the applicant on 1 December 2000. He called one character witness, Leigh Geoffrey Egan, who had known the applicant for approximately 17 years, and he also tendered 4 written references. The applicant gave evidence before the sentencing judge about, inter alia, the businesses which he conducted and the risk to their survival if he was to be imprisoned. He admitted 8 prior convictions from 5 court appearances between 1987 and 1996. Relevantly, he was convicted in 1990 of recklessly causing injury and criminal damage, was fined $750 on each charge, and had his licence to drive a motor vehicle suspended for 3 months. In 1996, he was convicted of 3 counts of taking part in an act of sexual penetration with a child between 10 and 16 years and was sentenced to a total effective sentence of 6 months’ imprisonment, which was wholly suspended for 2 years. The two offences in respect of which the applicant was convicted, were committed during the period of suspension.
On 8 December 2000, his Honour sentenced the applicant to 9 months’ imprisonment on each of counts 15 and 19 and ordered that 3 months of the sentence on count 19 be served cumulatively on the sentence imposed in relation to count 15, thereby imposing a total effective sentence of 12 months’ imprisonment. His Honour declined to fix a non parole period. His Honour said, towards the conclusion of his sentencing remarks: “I do not think it appropriate, in all the circumstances, to fix a period during which you shall not be eligible to be released on parole”. Fifteen days were declared by the judge to be reckoned as already served under the sentence.
On 18 December 2000, the applicant filed Notices for Leave to Appeal against conviction and sentence and, on 31 March 2001, he was granted bail by this Court pending the appeal. On 10 April 2002, the Registrar ordered that the applicant be granted leave to amend the grounds of appeal against sentence. The appeal was listed to be heard on 17 April 2002 but was adjourned at the direction of the Court when the applicant, who until then had been legally represented in relation to the appeal, indicated that he wished to proceed with his applications for leave despite being advised that counsel was not briefed to appear on his behalf. On 17 May 2002, the Registrar made further orders effectively giving leave to the applicant to substitute and add further grounds to his applications. I will not list here the ultimate grounds that formed the basis of the applicant’s applications for leave to appeal but will identify them when I consider the competing arguments in relation to them. For the present, it is sufficient to note that the final notice of application in relation to conviction contained 11 grounds and that the notice relating to the sentence application was based on 4 grounds.
Conviction Application
I turn first to consider the grounds on which the applicant seeks leave to appeal against his conviction on counts 15 and 19 and I do so in the order in which they were argued before us.
Ground 1 – failure to adjourn
Ground 1 was the main ground argued by Mr. Lyon. Under cover of that ground it was claimed that the trial miscarried as a result of his Honour’s refusal to grant the applicant a short adjournment to enable him to obtain legal representation thereby forcing him to proceed unrepresented. Mr. Lyon, who appeared for the applicant, argued essentially that:
(a)in exercising his discretion to refuse the application for adjournment, his Honour failed to have regard to relevant principles and, therefore, his discretion miscarried;
(b)in any event, it was said, because he was unrepresented at his trial, the applicant was denied a trial that was fair to him.
Thus, it was said for the applicant, the conviction should be set aside and a new trial ordered.
Given the applicant’s contention, it is necessary, as Gleeson, C.J. pointed out in Frawley[4], to ascertain with particular care the entire record of the trial proceeding to see that no miscarriage of justice has occurred. It is appropriate, I think, to analyse first the circumstances which led to the applicant conducting his own defence.
[4](1993) 69 A.Crim.R. 208 at 212.
Circumstances leading to applicant conducting own defence
Although the applicant’s trial was due to commence on 23 October 2000, for reasons which are not presently relevant, it was adjourned to 26 October 2000. It is appropriate to note, however, that during earlier preliminary hearings, the several judges who conducted them, including the trial judge, raised with the applicant the question of his being legally represented at his trial, but on each such occasion, he informed the court that he wished to conduct his own defence.[5] When the matter came on for hearing on 23 October 2000, the presiding judge again asked the applicant whether he proposed to be represented at his trial. The applicant confirmed that he would conduct his own defence and in the course of discussing this topic with his Honour, the following exchange took place between them.
[5]Chief Judge Waldron (20 February and 29 September 2000), Judges Hassett (6 July 2000), Barnett (15 August 2000) and the trial judge (6 October 2000).
“ACCUSED:I’ve given a lot of through [sic] to this, sir, but I don’t think I could trust a barrister in the position I’m in. I’ve had trouble trusting barristers in the position I’m in sir. They’ve refused to use evidence and basically they’ve just taken my money, sir.[6]
[6]As will become apparent later, the applicant’s mistrust of his counsel continued during the trial and the appeal. It seems that he held the view that, as he paid counsels’ fees, they were obliged to conduct his case, including the cross-examination of witnesses, in accordance with his dictates. It was this attitude that influenced his approach to the question of his being represented at the trial.
HIS HONOUR: Well what is your answer to the question? You do not want to be legally represented?
ACCUSED: No sir, I have to pursue the way I’m going.
HIS HONOUR: You wish to proceed, representing yourself?
ACCUSED: Yes sir, I have to.
HIS HONOUR: That’s the situation?
ACCUSED: Yes sir.
HIS HONOUR: All right.”
At the outset of the proceeding on 26 October 2000, the applicant appeared in person and, in response to his Honour’s enquiry, confirmed once again that it was his choice to proceed with the trial unrepresented “by a barrister or solicitor”. The applicant then sought an order that count 1 be severed from the 18 count first presentment but that application was rejected by the judge. His Honour then reminded the applicant that he had that morning confirmed that, of his own choice, he was proceeding unrepresented. He then proceeded to explain to the applicant, with some particularity, the order in which the various facets of the trial would proceed. His Honour also explained to the applicant his rights in relation to cross-examination of Crown witnesses, the calling of his own witnesses and his final address. The applicant seemed to understand his Honour’s explanation, or at least he did not claim that he did not follow it. His Honour also told the prosecutor that he proposed to take a more lenient approach to any cross-examination that might be conducted by the applicant than he might have done in respect of experienced counsel. The prosecutor informed his Honour that he proposed to call all witnesses on the presentment except Melissa.
Following the luncheon adjournment, and shortly before the jury panel was to be brought into court, the applicant told his Honour that he realised that “this was too serious to be unrepresented”. He informed the judge that he had spoken briefly to a barrister and also to a solicitor about being legally represented at his trial and sought an adjournment in order to pay the legal fees out of his own funds and to provide the necessary documentation and instructions to the solicitor and counsel. After some discussions, his Honour adjourned the matter to the following day, Friday, 27 October 2000, on the basis that counsel or a solicitor for the applicant would then appear and inform the court of developments. His Honour also foreshadowed that if counsel were retained, he would consider favourably adjourning the trial to the following Monday, 30 October 2000, in order that counsel be fully briefed.
On 27 October 2000, the applicant’s solicitor, Mr. Lewenberg, appeared before his Honour and sought one week’s adjournment in order to prepare for the trial. After some discussion, his Honour did not accede to that application, but adjourned the trial to Monday, 30 October 2000.
On 30 October 2000, the applicant’s counsel, Mr. Gucciardo, (who was instructed by Mr. Lewenberg) appeared before his Honour and successfully sought an adjournment of the trial to the following day. It should be said that both counsel and solicitor are very experienced practitioners, particularly in criminal trials. On Tuesday, 31 October the applicant’s counsel unsuccessfully sought a permanent stay of counts 1 to 3 on the presentment that was then proposed to be filed over. I have already mentioned that his Honour gave leave to the Crown to file over the second presentment and ordered a permanent stay of proceedings on the first presentment. The jury were empanelled shortly thereafter and the applicant was arraigned and pleaded not guilty to all twenty counts. The prosecutor then opened the Crown case to the jury after which they were briefly addressed by the applicant’s counsel and the learned trial judge.
On Wednesday, 1 November 2000, one of the jurors informed the court that the applicant’s solicitor had represented his son in a court case earlier that year. In response to his Honour’s query, he said that he was not embarrassed by that former association and would be able to perform his duties as a juror in an objective manner and make his relevant decisions based on the evidence. In response to the judge’s enquiry of the applicant’s counsel as to what attitude he had to the matter proceeding before the empanelled jury, counsel said that, in the circumstances, there was no reason why the trial should not continue before the jury. The trial then proceeded and the Crown called its second witness[7], namely, the mother of Melissa and later called Joseph . Both were cross-examined by the applicant’s counsel. On the following day, Thursday, 2 November 2000, the Crown called Sandra Diane Tait, whose younger sister, Amanda, was a close friend of Melissa whom the witness saw almost on a daily basis. She also knew the applicant. Ms Tait was cross-examined by the applicant’s counsel on that day, as were a number of other Crown witnesses, including (relevantly to counts 15 and 19), Joseph and the victim.
[7]The Crown’s first witness had given evidence on the previous day.
On Friday, 3 November 2000, in the course of his cross-examination of Amanda Tait who was called by the Crown to give evidence that morning, the applicant’s counsel sought a short adjournment to confirm with the applicant “one piece” of his instructions. After that adjournment, counsel told his Honour that there was a matter of great concern to his client which may require some time to resolve and that the matter impinged upon a number of serious matters relating to the way the trial would continue. As a result, at midday, his Honour adjourned the trial to 2.15 p.m. that day. After the luncheon adjournment the applicant’s counsel told his Honour that, after spending some time with his instructing solicitor and the applicant, he was not in a position to continue with the cross-examination of Ms Tait. Counsel informed the judge that he was in a difficult position which involved “both professional ethics and the proper running of the trial” and would require some time to sort it out. He sought and, against the Crown’s objection, was granted an adjournment of the trial until Monday, 6 November.
On the adjourned date, the applicant’s counsel told his Honour, in effect, that as of that morning, his brief and the retainer of his instructing solicitor had been terminated by the applicant. A short time later counsel repeated this before the jury and after counsel had withdrawn, the applicant told his Honour (in the absence of the jury) that he wished to brief other counsel and would need until Wednesday or Thursday of that week to do so. His Honour expressed reluctance to adjourn the matter for any length of time given that, from a practical point of view, the trial had not proceeded since approximately midday on the previous Friday. The applicant then applied for an order that the jury be discharged without verdict on the grounds that one of its members had dealings with Mr. Lewenberg and that the withdrawal of counsel and his solicitor may have resulted in the jury forming an adverse view of him. His Honour ruled against the application to discharge the jury[8] and also against the application to adjourn the trial until Wednesday or Thursday of that week. In the course of his ruling on the adjournment application, his Honour noted that the trial already had a disrupted history and that prior to its commencement the applicant had been advised by a number of judges of the desirability and advisability of obtaining legal representation for the purposes of his trial but that on each such occasion the applicant confirmed that he did not wish to be represented. His Honour then set out briefly the delay that had been caused to the trial by reason of the adjournments that had been sought, first by the applicant and then, on his behalf, by his counsel. His Honour emphasised that the applicant had been very ably represented by his counsel at trial and that it was the applicant’s own decision to terminate that representation. His Honour considered that, should the application for adjournment be granted, the continued delay of the trial to the following Wednesday or Thursday would mean that there would be a gap in the trial which would be extremely undesirable. In his Honour’s view, that would prejudice the proper conduct of the trial and he said that fairness to the Crown was also a matter to be taken into account. Further, the judge noted that considerable indulgence had been extended to the applicant and it was not appropriate to give him further latitude in that regard. Consequently, his Honour refused the adjournment sought by the applicant.
[8]This ruling is not the subject of any ground of the application for leave to appeal.
Did his Honour’s discretion miscarry?
It is now appropriate to consider Mr. Lyon’s first argument under ground 1, namely, that his Honour’s discretion in refusing an adjournment, miscarried. It is clear that whether or not an adjournment of a proceeding should be granted is a matter which is within the discretion of the trial judge, and an appeal court will only interfere with the judge’s decision on this issue if error of principle on the judge’s part has been demonstrated or if the decision is plainly wrong. In McColl v. Lehmann[9], on which Mr. Lyon relied in support of his argument that his Honour’s discretion miscarried, Kaye, J. said[10]:
“The decision whether to accede to or refuse the application for adjournment of the hearing was within the Magistrate’s discretion. An appellate court will rarely interfere with a trial judge’s exercise of discretion upon such an application: Bloch v. Bloch (1981) 55 A.L.J.R. 701, at p.703; 37 A.L.R. 55, at pp.58-9, per Wilson, J. However, the result of refusal to grant an adjournment might be to prevent the party seeking it from presenting his case or defence; in some circumstances such result could constitute an injustice. This is so because it is essential to the fair trial of an action – whether civil or criminal – that all parties are able to present their case as fully as necessary and within the limits of the law. To overcome an injustice so brought about or threatened, an appellate court will interfere with the trial judge’s discretion. This principle was expressed by Atkin L.J. in Maxwell v. Keun [1928] 1 K.B. 645, at p.653, as follows: ‘I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but, on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the Court has power to review such an order, and it is, to my mind, its duty to do so.’”
It is true that Bloch and Maxwell v. Keun were civil cases but, as is evident, his Honour cited them in the context of an appeal from the Magistrates’ Court where the applicant was convicted of an offence and sought to have the decision reviewed. In my view, the principles referred to in those cases operate also in respect of an application to adjourn a criminal trial. See, for example, Dietrich v. The Queen[11] and Bollen[12].
[9][1987] V.R. 503.
[10]At 506.
[11](1992) 177 C.L.R. 292 at 311 per Mason, C.J. and McHugh, J.
[12](1998) 99 A.Crim.R. 510 at 516 per Hunt, C.J. at CL (with whom Hulme, J. and Graham, A.J. agreed on this matter).
It was the applicant’s case on this issue that the trial of an unrepresented accused, charged with a serious offence, who seeks to be legally represented, should not proceed other than in exceptional circumstances and that his Honour failed to consider whether such exceptional circumstances were present in this case. Hence, it was said that, in exercising his discretion, his Honour failed to take into account a relevant matter and had consequently, erred. In support of that contention, counsel relied principally on what was said in that regard by Mason, C.J. and McHugh, J. in Dietrich[13]:
“The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge’s discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained.”[14]
Thus, counsel seized on this passage and argued that the trial judge should have considered whether exceptional circumstances were shown to exist in this case such as to justify rejecting the adjournment application. Mr. Lyon submitted that his Honour failed even to consider whether such circumstances prevailed in this case and thereby fell into error. (Mr. Lyon went on to submit that, in any event, there were no such circumstances present in this case and that his Honour erred for that reason also in refusing the adjournment application.)
[13]At 311.
[14]Deane, J. at 337, Toohey, J. at 361-362 and Gaudron, J. at 369 were of a like view in this regard.
The basis of the decision in Dietrich was, as Brooking J.A. pointed out in R. v. Rich[15], that an accused person has a right to receive a fair trial according to law, ”or, more accurately, the right not to be tried unfairly.”[16] His Honour went on to explain the conclusion in that case “that the trial of an indigent accused charged with a serious offence who without fault is unable to obtain legal representation should be adjourned or stayed in the absence of exceptional circumstances rested upon the nature and exigencies of a criminal trial...”. Thus, the observations of their Honours as to the approach to be adopted in considering whether a trial of an unrepresented accused who seeks legal representation should proceed, must be read in the context of the circumstances applicable to that case and those circumstances were markedly different from those that faced the trial judge here. First, the applicant was not an indigent accused who, because he was unable to secure legal representation, sought a stay of his trial. Nor was the applicant relevantly “without fault” in being unable to obtain legal representation. On the contrary, he had the ability to fund his representation and had done so. Prior to the adjournment application, he had been represented by competent and experienced counsel and solicitor but, consistently with what he told the judge prior to the commencement of the trial[17], he withdrew his instructions during the course of the trial apparently because he was not satisfied that his counsel conducted the case as he wanted it conducted. In the circumstances, one could not be confident that, had an adjournment been granted and other counsel were briefed, their instructions would not have been similarly withdrawn if they were not prepared to conduct the defence wholly as the applicant might wish having regard to their duty to the court. Moreover, as has already been mentioned, unlike the situation in Dietrich, the application for an adjournment here was made after the critical Crown witnesses had been cross-examined by the applicant’s counsel in relation to the central issues in this case, including those that pertained to the counts on which he was ultimately convicted.
[15][1998] 4 V.R. 44 at 47, with whom Winneke, P. and Buchanan, J.A. agreed.
[16]See also Jago v. District Court (N.S.W.) (1989) 169 C.L.R. 23 at 56-57, per Deane, J.; Dietrich at 299-300 per Mason, C.J. and McHugh, J.; Azzopardi v. R. (2001) 205 C.LR. 50 at 105 per McHugh, J.; Victoria Legal Aid v. Beljajev [1999] 3 V.R. 764 at 772 per Winneke, P.; Attorney-General (N.S.W.) v. X (2000) 49 N.S.W.LR. 653 at 668 per Spiegelman, C.J., Mason, P. and Priestley, J.A.; Bayeh v. Attorney-General (N.S.W.) (1995) 82 A.Crim.R. 270 at 275 per Hunt, C.J. at CL; Komljenovic (1994) 76 A.Crim.R. 521 at 530 per Southwell, Nathan and McDonald, JJ.
[17]See para.[14] above.
The proper approach to be adopted by a trial judge faced with an application for an adjournment by an unrepresented accused who seeks to obtain legal representation was outlined by Barwick, C.J. (with whom Aickin and Wilson, JJ. agreed) and by Mason, J. in McInnis v. The Queen[18]. The Chief Justice said[19] that:
[18](1979) 143 C.L.R. 575. What their Honours said was noted and applied by Hunt, C.J. at CL in R. v. Small (1994) 33 N.S.W.L.R. 575 at 590-591.
[19]At 579.
(a)It is in the best interests of both the accused and the administration of justice that the accused be represented at his or her trial.
(b)The trial judge ought very seriously to consider whether an accused should be forced on without counsel in any case in which there is a reasonable possibility that he may obtain the services of counsel in his defence without unbearable delay.
(c)In exercising his or her discretion as to whether to grant the adjournment, the judge must most carefully weigh all of the interest of the accused, the Crown, witnesses, jurors and (generally) the administration of justice.
Mason, J. considered[20] that:
(a)The importance of representation for an accused in a serious criminal charge cannot be too highly stressed.
(b)The trial judge when exercising his or her discretion is entitled to have regard to the interests of justice as well as to the interests of the accused.
(c)Unless the interests of justice are overwhelming, so important is the need for representation that the judge should permit the accused to pursue all avenues of obtaining legal aid to their conclusion.
It is important to emphasise that the Chief Justice (and, I believe, Mason, J.) considered that the interests of justice that were to be taken into account in determining an application for an adjournment of a trial, included not only the interests of the accused, but also those of the Crown, the witnesses, the jurors and the proper conduct of the trial (“the administration of justice”). In my view, it is apparent from what the trial judge in this case said, before and when refusing the adjournment application, that he had regard to the above principles and that he exercised his discretion in that context. That his Honour raised with the applicant on several occasions the question of his being represented at the trial and that he granted him and those representing him a number of adjournments to ensure that he was properly represented, reflects the judge’s appreciation that the applicant was entitled not to be exposed to an unfair trial and of the desirability of his being legally represented at it. It is also apparent that his Honour took into account in the exercise of his discretion the fact that the adjournment was sought part way through the trial and after a number of Crown witnesses had been cross-examined by the applicant’s counsel on key issues in the case. It was also not irrelevant for his Honour to take into account, as he did, that the applicant had been represented by experienced and competent counsel and the circumstances in which his brief had been withdrawn. Furthermore, the judge correctly, I think, had regard to the effect that a further adjournment would have on the proper conduct of the trial.
[20]At 581-582.
Mr. Lyon argued that the applicant’s decision to dismiss counsel was not a capricious one, but was made after a considerable amount of deliberation and discussion with his legal representatives. The ultimate decision on that issue, counsel said, was not made until the morning of Monday, 6 November 2000. It was further said for the applicant that he was concerned that a member of the jury knew Mr. Lewenberg. Thus, counsel claimed, there were several factors leading to the applicant’s decision to terminate the solicitor’s retainer and counsel’s brief and that the decision to do so was taken responsibly. These matters were, however, all put to his Honour and were considered by him when determining whether to accede to the adjournment application. In my view, it could not be properly said that his Honour treated the applicant’s decision to withdraw counsel’s brief as capricious conduct. His Honour well recognised that it was made after the applicant had the full benefit of counsel’s advice on the matter over a period of some two and a half days. It should nevertheless be said that it seems clear enough from what counsel told his Honour as to the circumstances of his withdrawal from the case, that there was an impasse between him and the applicant as to the conduct of the defence, more particularly, relating to the cross-examination of Ms Tait and what should be put to her.
In the circumstances, I am of the view that his Honour made no error of principle in determining to refuse the applicant’s application for adjournment of the trial. In particular, I am satisfied that his Honour did not fail to take into account relevant matters for the purpose of determining whether to grant the adjournment that was sought. It follows that, in my opinion, the applicant’s claim that his Honour’s discretion in refusing the adjournment miscarried, must be rejected.
Applicant must establish more than trial unfair
But even if I am wrong in that opinion and his Honour erred in refusing to adjourn the trial as the applicant sought, this, by itself, would not lead to the conclusion that he was denied a fair trial or that a miscarriage of justice had ensued. Moreover, even if the applicant had been exposed to an unfair trial, by itself this would not have constituted a miscarriage of justice such as to justify the setting aside of his conviction. There is, ordinarily, no miscarriage of justice in those circumstances unless it is established that, by reason of being exposed to an unfair trial, the applicant has lost a fair chance of acquittal.
As Mason, J. said[21] in McInnis, mere refusal of an adjournment does not necessarily result in a miscarriage of justice. And, as his Honour, then as Chief Justice, and McHugh, J. pointed out in Dietrich[22] an appellate court will not interfere with a conviction merely because there was unfairness to the accused in the conduct of his trial. Their Honours’ said[23]:
“The appellate jurisdiction in criminal matters depends upon a conclusion that there was a “miscarriage of justice” ... such that the applicant “has thereby lost ’a chance which was fairly open to him of being acquitted’ (84) [MRAZ v. The Queen (1955) 93 C.L.R. 493 at p.514 per Fullagar, J.] ... or ‘a real chance of acquittal’ (85) [Reg. v. Storey (1978) 140 C.L.R. 364 at p.376 per Barwick, C.J.], to repeat the expression used by Brennan, Dawson and Toohey, JJ. in Wilde v. The Queen [(1988) 164 C.L.R. 365, at pp.371-372].”
They concluded[24] that, in that case, the applicant’s defence was so disorganised and haphazard as to lack cogency and that, in the circumstances, the conclusion that the applicant may have lost a real chance of acquittal was compelling. Brennan, J. said[25]: “The rhetoric that a trial must be fair before a conviction is recorded is true only to the extent that unfairness leads to a miscarriage of justice.” Toohey, J. was also of the view[26] that it was the “loss of a chance of acquittal fairly open to an accused, rather than the unfairness of the trial itself, that leads to the conviction being set aside”. His Honour considered[27] that, for the purposes of determining if a convicted accused was denied a fair trial by reason of lack of representation, an appeal court’s role is similar to that when a conviction is challenged as being unsafe and unsatisfactory. The court must, his Honour said, make the assessment in light of the relevant evidence. His Honour also noted[28] that an assessment of the complexity and the fairness of the trial made prospectively at the time when an application is made for an adjournment, may be different from an assessment of whether the trial was unfair to the accused having regard to what occurred at the trial.
[21]At 592.
[22]At 310.
[23]At 311.
[24]At 315.
[25]At 325.
[26]At 362. Deane, J. expressed a similar view at 337-338, as did Gaudron, J. at 375.
[27]At 355-356.
[28]At 355.
The majority in McInnis, a case on which Mr. McArdle for the respondent relied in respect of this issue, expressed like views on this question. In that case the trial judge rejected the application made by the unrepresented accused for an adjournment of the trial to enable him to obtain legal representation where his counsel had told him only on the day before the trial began that he would not represent him. It seems that the accused had a reasonable prospect of obtaining legal representation but, in the circumstances, he was compelled to conduct his own defence and, after the trial, was convicted of charges of deprivation of liberty and rape. Barwick, C.J., with whom Aickin and Dawson, JJ. agreed, did not hold that the trial judge erred in refusing to grant the adjournment, but said[29] that, assuming the adjournment to have been wrongly refused, the relevant question was whether the refusal resulted in a miscarriage of justice. His Honour concluded[30], after examining the evidence, that the accused was not deprived of a fair chance of acquittal and thus, there was no miscarriage of justice arising from the fact that he was unrepresented at his trial. Mason, J., who considered that the trial judge had erred in refusing to grant the adjournment, nevertheless agreed with the Chief Justice in the result. Their Honours’ conclusion that the applicant did not lose a real chance of acquittal was based essentially on the strength of the Crown case and the lack of credibility of his defence. These considerations and principles were applied in Bollen[31] and Frawley[32].
[29]At 579-580.
[30]At 580.
[31](1998) 99 A.Crim.R. 510 at 516 per Hunt, C.J. at CL.
[32]At 212 per Gleeson, C.J. with whom Carruthers, J. agreed.
Was trial unfair?
Thus, the question that must now be considered is, assuming his Honour’s discretion as to the adjournment application miscarried, was the applicant exposed to an unfair trial? Mr. Lyon, in his thorough submissions on this issue, emphasised a number of matters which he said demonstrated that the applicant had not received a fair trial. In the forefront of his argument was his claim that the applicant experienced considerable disadvantage in conducting his own defence which included the following.
(a) Crown’s failure to call Melissa
It was said, first, that the applicant did not fully understand why the Crown was not required to call Melissa as its witness and thus, entitle him to cross-examine her, particularly given the Crown’s assertion that he had a sexual relationship with her during the relevant period and bearing in mind that she was in the house during the alleged assault. In any event, it was said, he was disadvantaged by the Crown’s failure to call her. It was put by counsel, and later by the applicant in his reply after he had withdrawn Mr. Lyon’s brief in the circumstances later described, that, had Melissa been called, the applicant could have demonstrated that she had voluntarily withdrawn her earlier allegation made in her statement to the police that the applicant and she had a sexual relationship during the period in question. It was further said that his Honour should have given the jury a Jones v. Dunkel[33] direction in relation to the Crown’s failure to call Melissa and that his failure to do that constituted error. This complaint is essentially the subject of ground 6 and I will deal with it in that context. For the moment, I will examine the applicant’s claim that he was forensically and otherwise unfairly disadvantaged in the conduct of his defence because of the Crown’s failure to call Melissa and because of his failure to understand why it was not required to do so.
[33](1959) 101 C.L.R. 298.
Whether or not it would have been advantageous to the applicant’s defence had the Crown called Melissa is, of course, not possible to determine at this stage. For reasons which appear a little later, however, it is plain that the Crown was not obliged to call her as a witness and the fact that the applicant might not have understood fully the legal reasons for that does not mean that he was relevantly disadvantaged in conducting his defence. His Honour explained to him that the Crown had made it plain that it did not regard her as a reliable witness and thus, no adverse inference could be drawn from its failure to call her. The trial judge also explained to the applicant that he could have called Melissa as his witness, but the applicant chose not to do so knowing full well, as appears later, that, had he done so, the prosecutor could have cross-examined her. I note that it was not suggested before us that the applicant suffered a relevant prejudice because of his decision not to call that prospective witness. Thus, in my opinion, the applicant suffered no relevant prejudice in the conduct of his defence by reason of the Crown’s failure to call Melissa as a witness or on account of his claimed lack of understanding why the Crown was not required to call her.
(b) Crown’s threat to invoke s.399(5).
It should be said by way of background to the analysis of this complaint that the applicant’s counsel cross-examined at least two witnesses, Joseph and Anderson on matters going to their respective character, principally, their prior convictions. After the applicant dismissed his counsel and in the course of the applicant’s cross-examination of Crown witnesses, the prosecutor told his Honour that he had told the applicant’s counsel that, in the light of his cross-examination, he may seek to cross-examine the applicant as to his prior criminal history should the applicant give evidence. In that context, he filed a further presentment which detailed the applicant’s prior convictions and repeated the possibility of his making an application to cross-examine the applicant in relation to his prior convictions if he gave evidence. The prosecutor suggested that, in fairness to the applicant, his Honour should explain to him the operation of the provision and, in particular, that he might be cross-examined as to his prior convictions should he give evidence. No doubt as a result of this suggestion, the trial judge explained to the applicant the possible operation of s.399(5) in the context of the case and the possibility that he might be cross-examined as to his character, including his prior convictions, if it is established that he or his counsel had asked questions of prosecution witnesses with the view to attacking their good character. His Honour did not suggest, however, that the applicant had cross-examined the witnesses to that effect, but merely advised him that if he were to do so he would run the risk of himself being cross-examined as to his prior convictions if he gave evidence. The transcript of the proceeding shows that the applicant told the judge that he understood what had been explained to him, but he indicated that he would nevertheless like to speak to his former counsel because, as he claimed, he had not instructed him to put the alleged offending questions during cross-examination.
Before us, it was contended for the applicant that, in fact, he had not fully understood the operation of s.399(5) and was, therefore, significantly disadvantaged in the conduct of his defence. It was never made clear, however, precisely what disadvantage flowed to the applicant from his claimed lack of full appreciation of the workings of the above section. It is clear enough that his Honour’s explanation concerning the provision was appropriate and that the applicant understood that he might be cross-examined about his prior convictions if he gave evidence and that this might depend on whether he cross-examined Crown witnesses so as to put his character in issue. The fact that he might have been unable to speak to his counsel concerning his cross-examination of the witnesses, assuming that was the case, does not change the situation. Even assuming that his counsel cross-examined Crown witnesses as to their character contrary to instructions, the applicant would be ordinarily bound by that conduct. It was not put to us that a miscarriage of justice had arisen as a consequence of his counsel’s conduct in that regard. In any event, the applicant chose not to give evidence in support of his case so that whether s.399(5) could have been invoked by the Crown, became a sterile question, particularly bearing in mind that it was not suggested by Mr. Lyon, or by the applicant when he made his submissions to us in the circumstances described later, that this course was adopted because of his apprehension that he might be cross-examined about his prior convictions.
In the circumstances, I cannot see any basis for the above complaint.
(c)Crown’s reliance on applicant’s alleged sexual relationship with Melissa
It was contended for the applicant that yet another difficulty that faced him was understanding how the Crown relied on his alleged sexual relationship with Melissa for the purpose of explaining his alleged conduct against the victim, particularly given that he was acquitted by direction on counts 1 to 3. It is convenient to mention that the applicant’s counsel submitted under cover of grounds 4, 5 and 6, that his Honour erred in that he “permitted and directed to the jury that [notwithstanding the applicant’s acquittal on counts 1 to 3] it could ... use the evidence of the applicant’s sexual relationship with Melissa as evidence of motive for the assaults and intensity of his feelings on 7 July 1998”. It was argued by Mr. Lyon that the existence of such a relationship was, in the circumstances, “irregular, irrelevant, prejudicial and extremely confusing to the jury”. These arguments, of course, go to the question whether his Honour made the specific error that is contended for by the applicant and I will deal with the argument in the context of analysing the above grounds. If his Honour erred as is claimed by the applicant, that may be fatal to the conviction. I would only add that it must have been apparent to the applicant from what his Honour said during the course of the trial that the Crown sought to rely on his sexual relationship with Melissa as part of the circumstances that explained his anger and his conduct towards her and the victim.
(d)Applicant’s various difficulties in conducting his defence and understanding the nature of the evidence that he could present
It was next submitted for the applicant that, during the conduct of his defence, he experienced a range of forensic difficulties and complained about them to his Honour and told him that he wanted to be legally represented. These difficulties included, it was said, understanding the extent and nature of the evidence that he could lead in his defence. That the applicant was effectively compelled, in those circumstances, to proceed unrepresented, counsel said, materially prejudiced his defence.
It is not necessary to list here all the forensic difficulties that were said to have confronted the applicant in the conduct of his defence, such as marshalling the evidence of witnesses, being familiar with the relevant parts of the transcript, coming to grips with the real issues of the case and being able to articulate his questions to witnesses and his case to the jury. There is nothing unusual about such problems arising in the course of the trial. They usually confront counsel although, obviously enough, because of their experience and training, counsel would meet such difficulties more readily than a lay person. In my view, however, having regard to the way the trial unfolded and to the assistance that was given to the applicant by the trial judge to which I will refer later, it cannot be said that the forensic problems that faced the applicant in the conduct of his own defence, relevantly prejudiced his case.
I note that, as his Honour predicted to the prosecutor after the applicant’s counsel withdrew from the case, he did not apply strictly to the applicant’s cross-examination of Crown witnesses (or to his final address) the usual restrictions that would have faced defence counsel. Similarly, his Honour often assisted the applicant during the balance of the trial by explaining to him, when relevant, the choices that were available to him as to how he could proceed in respect of a particular issue, the relevant rule of evidence or procedure and the legal issues that were before the jury. Moreover, when the applicant found it difficult to marshal his material for the purposes of cross-examination (or his final address), he was granted adjournments to enable him better to prepare himself for his task and, although some of the adjournments were not of the duration sought by the applicant, they were reasonable in the circumstances. Put shortly, although his Honour was, rightly, I think, conscious that he could not advise the applicant as to the conduct of his defence, short of doing that, he assisted him in the conduct of it.
I now turn to the applicant’s claim that he experienced difficulties concerning the presentation of his defence.
When his Honour confirmed to the applicant that the prosecutor would be entitled to cross-examine Melissa if he called her as a witness, the applicant sought an adjournment to obtain legal advice because, he said, he did not know how he should proceed. His Honour effectively told him that he would give him a short adjournment, in the order of five minutes or so, “to collect his thoughts”, but that he would otherwise not adjourn the trial. The applicant took advantage of the adjournment and, at the end of it, told the court that he proposed to call evidence. There was then some discussion about the difficulty that the applicant faced in having one of his proposed witnesses attend court on the following day for the purpose of giving evidence. It was said that the witness lived in Shepparton and that, although the applicant had made some enquiries as to whether the evidence could be given by video link, he had made no administrative arrangements to put that in place. Again, his Honour gave the applicant such assistance as he could without advising him as to the course he should follow.
The applicant then informed his Honour that he intended to lead evidence in the form of a tape recording of a conversation between himself and the informant. He explained to his Honour that he wanted the tape played to demonstrate that various unjustified public assertions had been made against him in Shepparton. His Honour ruled, correctly in my view, that the conversation was irrelevant to the issues before the jury and consequently, that the applicant could not play the tape to the jury. The applicant then informed the judge that his witnesses were not in court and, in the result, at approximately 3.25 p.m. his Honour adjourned the trial to the following day. Prior to the adjournment, the applicant told the judge that he proposed calling five or six witnesses and acknowledged that it was “fair” that he should start to lead his evidence when the trial resumed on the following day. In the course of this discussion the applicant told his Honour that he did not propose to call Melissa as a witness.
On the following day, the applicant called as witnesses the couple who took over occupancy of 52 Wyndham Street Shepparton from Anderson – Casey Maree Bryant and Gary Grant Lee. Their evidence was, in substance, that when they first occupied the premises, they found them in a state of considerable untidiness with rubbish, including syringes, lying on the floors. At the conclusion of their evidence, the applicant informed his Honour that he could not contact his proposed Shepparton witness and announced to the court that he did not propose to call further evidence[34]. It should be noted that it has not been suggested by Mr. Lyon that the Shepparton witness could have given relevant evidence and it is plain that the evidence of Ms Bryant and Mr. Lee was of no relevance to the issues before the jury. It was also not suggested by counsel, or by the applicant when he addressed us, that there were other witnesses whom he could have called to further his case or that, through ignorance, he had made an error in not giving evidence.
[34]The applicant made this announcement after his Honour helpfully suggested that it should take that form, rather than one whereby he told the court in front of the jury that he would not be giving evidence.
In my view, had the applicant been represented, the defence case would not have been thereby materially changed. No doubt counsel would not have called the above two witnesses, but in my view no prejudice flowed to the defence from the fact that they were called. As I have said, their evidence was wholly or almost totally irrelevant (certainly to counts 15 and 19). Further, it is unlikely that counsel would have called Melissa as a witness given that it was almost certain that she would have been cross-examined by the prosecution. But even if she had been called for the applicant and had denied having had any sexual relationship with him, and assuming such a denial would have been credible, such evidence would have had only a marginal effect on the Crown case. It will be recalled that the Crown case was that the applicant’s aggressive behaviour towards the victim was explained essentially by the fact that he was upset by Melissa ending their relationship (and by the fact that the victim was in possession of some of his belongings, most notably his favourite underpants). Thus, it would have been sufficient for the purposes of the Crown case if it were established that the applicant and Melissa had a relationship during the relevant period (something that was admitted by the applicant in any event). It was not essential to its case that it was a sexual one. As I have said, that a relationship had existed between them prior to the applicant’s departure to Western Australia was admitted by him and that admission, taken with the evidence of a number of witnesses about that relationship, meant that it was open to the jury to conclude that at least a close or intense relationship existed between the two and that a breach of it by Melissa and her preference for the victim, explained the applicant’s enraged feelings and conduct towards them.
(e) The applicant did not appreciate the nature of a closing address
It was further said for the applicant that, during his trial, he did not fully appreciate the nature of a closing address and, in particular, that he could not put his case to the jury on the issue of the alleged assault on the basis of his version of the relevant events. Thus, it was said, the applicant was materially disadvantaged in the conduct of his case and that this disadvantage manifested itself in a number of ways. First, it was claimed that the applicant would have prepared a better final address if he had better understood the nature of it and that he would have presented it in a better form. It was claimed by his counsel that, although the applicant addressed the jury at some length, he did so in a mechanical way and was unable to bring together matters such as inconsistencies in the evidence of witnesses and make them relevant to the issues in the case. Furthermore, it was said, his ignorance as to the nature and contents of a final address resulted in his Honour interrupting the applicant on a number of occasions during his address. The inference was that such interruptions tended to disrupt the flow of his address and may have prejudiced his case before the jury.
In my view, however, the transcript of the applicant’s address shows that, although the points sought to be made by him in the course of it would have been more eloquently put by counsel, it is unlikely that the jury did not understand the thrust of his case, particularly in relation to counts 15 and 19, namely, his assertion that he did not hit the victim but merely “pushed” him out of the way by way of self-defence.
It is plain that the applicant had been told by his Honour before he addressed the jury (and again later) that he was not entitled during his address effectively to give evidence of his version of the relevant events at the victim’s house since he did not give evidence about them. Notwithstanding these directions, the applicant effectively did just that. He told the jury that he was not in a jealous rage when he arrived at the victim’s premises and that all he wanted was to retrieve his possessions, more particularly his bed and clothing and he denied that he punched the victim as was claimed by him. He also asserted that Melissa had retracted her earlier statement to the police. Further, the applicant contended to the jury that the Crown could have, but did not call Melissa on the issue of their relationship and that he could have called her as a witness but he did not see why he should have done so when the prosecution “are the people who are prosecuting me. She’s their witness. ... She’s not actually my witness.”
In my view, the content of the applicant’s long address to the jury demonstrates that he had no relevant difficulties in putting his case to them. The address thoroughly dealt with the Crown’s claims against him and was sprinkled liberally with self-serving evidence and comments, most of which counsel could not have made in a closing address. True it is that experienced counsel would have better marshalled the relevant facts and would have presented the defence in a more eloquent and structured way than did the applicant, but he or she could not have said any more than the applicant did on matters of substance and because his Honour allowed the applicant a fair amount of latitude, the applicant was able to put to the jury many matters which counsel could not have done. Some indication of the success of the applicant’s address to the jury can be gleaned from the fact that they acquitted him on all but the two relevant counts. In the circumstances, I doubt that the fact that the applicant addressed the jury was of material disadvantage to his case.
It is also difficult to accept the applicant’s claim that his Honour unduly interrupted his address or that, had the applicant been more familiar with the nature and extent of the final address, such interruptions would have been less frequent. As I have earlier mentioned, before the applicant addressed the jury his Honour clearly explained to him on a number of occasions and in straightforward terms that he was not permitted to assert in his address facts which were not the subject of evidence. The warning related in particular to the applicant’s version of the circumstances in which the alleged assault took place, and about which he did not give evidence. The transcript shows that the applicant understood the judge’s direction on that matter and that his Honour’s interruptions for the purpose of reminding the applicant that he was effectively transgressing his rulings, were not aggressive and did not create the impression of criticism of the applicant.
(f) His Honour’s charge on self-defence was deficient
The applicant complains, under grounds 2 and 3, that the trial judge did not adequately charge the jury on the issue of self-defence. That claim, of course, asserts specific error. But it is also relied on by the applicant as part of his case that his Honour’s failure in that regard has resulted in the trial being unfair to him. I will deal with this alleged inadequacy in his Honour’s charge when discussing the arguments put forward by the applicant under cover of grounds 2 and 3. This complaint can only go to the fairness or otherwise of the trial if error is established.
It is convenient to note at this point that it was also submitted for the applicant that his Honour’s charge to the jury on counts 15 and 19 “compound the perception that the trial was unfair to [him]”. In my view, however, for the reasons given by me when dealing with grounds 2 and 3, it is plain from the terms of his Honour’s charge that he fairly put to the jury the applicant’s defence, particularly that which he advanced in respect of counts 15 and 19. It could even be properly said that, at least in one respect, the charge was generous to the applicant, namely, the issue of self-defence was left to the jury notwithstanding that, as Mr. Lyon properly conceded and as will become apparent later, there was no evidence on which such a defence could have been based.
(g)Failure to tell the jury to make proper allowance for the fact that the applicant was not represented
Mr. Lyon argued that it was incumbent on the trial judge to have told the jury that they should make allowance for the fact that the applicant was unrepresented. Again, this alleges specific error. Be that as it may, in support of that submission counsel relied on a passage in the joint judgment of the Chief Justice and McHugh, J. in Dietrich. In that case their Honours favourably observed, in the context of discussing the assistance given to the appellant by the trial judge that in his charge to the jury, the judge told them that, when assessing the demeanour and personality of the appellant, it was appropriate for them to make every allowance for the fact that he had not had “any counsel to guide him in the presentation of his case”. In my view, however, it is plain that their Honours did not say that a judge is under a duty to tell this to the jury in every case where an accused conducts his own defence. Their Honours were referring rather to a situation where the conduct of the accused during the trial was such that the jury might draw an adverse inference from the accused’s conduct during the trial. No such situation arose here and, given the circumstances of the trial and his Honour’s charge, the fact that his Honour did not tell the jury to make relevant allowances for the fact that the applicant was unrepresented, did not, in my view, reflect error on his Honour’s part or otherwise make the trial unfair to the applicant.
It was additionally submitted for the applicant that, since he was acquitted of all but two counts, the question arose whether it could be said that competent counsel may not have found further weaknesses in the prosecution case. It was said that this was yet another basis for concluding that the adjournment resulted in a trial that was unfair to the applicant. In support of that argument, counsel relied on the fact that a like question was posed by the Chief Justice and McHugh, J. in Dietrich[35]. But it would be superficial simply to apply the question so raised in that case, which was apt having regard to the complexities that were present in that trial, to the present case where the issues and circumstances were not only materially different from those that prevailed in Dietrich, but the matters which the jury had to resolve in relation to counts 15 and 19 were relatively simple. It is most unlikely that the jury would not have understood the applicant’s case or that of the Crown on those counts. Consequently, the applicant’s acquittal of the counts in question does not make it more likely that his trial was unfair because he was deprived of the opportunity to secure the services of counsel.
[35]At 315.
Trial not unfair
Although it might be said that, because he had to conduct his own defence, the applicant was at a forensic disadvantage notwithstanding the assistance that was given to him by the trial judge, for the reasons I have given, it cannot be properly concluded that he was thereby subjected to an unfair trial. If that be right, then ground 1 must fail.
Was applicant deprived of a real chance of acquittal on counts 15 and 19?
But if I am wrong in this conclusion and if the disadvantages faced by the applicant in the conduct of his trial that were highlighted by Mr Lyon resulted in a trial that was unfair to him, the next question that must be resolved is whether the trial was so unfair that the applicant was thereby deprived of a real chance of acquittal on counts 15 and 19. In considering this issue, regard should be had, inter alia, to the following matters. First, it was the applicant who dismissed his competent and experienced counsel partway through the trial and, for reasons I have already given, there must be at least a doubt whether he could have engaged another counsel who would have been willing to conduct his defence as the applicant desired. That the applicant’s dismissal of his counsel and the circumstances in which that occurred are relevant factors in determining if there has been a miscarriage of justice has been recognised, for example, by Gleeson, C.J. in Frawley. There, his Honour noted[36] that the question whether there has been a miscarriage of justice where the accused has been denied an adjournment to seek legal representation and was convicted upon the resultant trial, was to be considered in a context in which the applicant’s lack of legal representation was the result of his own conduct. And, as Gaudron, J. said in Dietrich[37]: “If an accused person declines to be legally represented, then he may be taken to accept that, in the circumstances, fairness does not depend on legal representation.”[38]
[36]At 212.
[37]At 365.
[38]See also Deane, J. at 335-336 to similar effect.
Secondly, the principal issue that the jury were required to resolve in relation to the two counts in question was essentially one of credit, more particularly, whether they were satisfied beyond reasonable doubt that the applicant hit the victim on two occasions as was claimed by the victim and Joseph. Next, the two critical witnesses on this issue had been cross-examined by the applicant’s counsel before he withdrew from the case. Further, as I have already mentioned, it is apparent from the transcript that, in his address to the jury, the applicant said just about all that could be said in his favour on the substantive matters relating to counts 15 and 19. In addition, he gained some forensic advantage from being able to tell the jury his version of the events relating to the alleged assault notwithstanding that he had not given evidence on that matter. Furthermore, and not surprisingly, the applicant was given assistance by the trial judge on a range of matters to which I have already referred and the prosecutor conducted the Crown case with stringent fairness and having regard to the fact that the applicant was unrepresented. Moreover, the judge’s charge to the jury was balanced and, subject to the alleged specific errors which are the subject of separate grounds, there was no suggestion to the contrary by the applicant’s counsel before us or by the applicant himself when he came to addresses in reply.
Importantly, the Crown case against the applicant was strong while his defence was not the subject of any evidence. He had admitted that he had a relationship with Melissa during the relevant period and there was a good deal of evidence that shortly after the applicant learned of the break-up of the relationship, he was seized with an almost uncontrollable rage which continued to the time when he arrived at the victim’s house. The evidence of what occurred there was given by two witnesses and although their credit was attacked when they were cross-examined by the applicant’s counsel (and during the applicant’s address) there was no evidence led by the applicant to contradict their version of events and it was well open to the jury to accept that evidence.
Thus, looking at the whole of the relevant material, I am not persuaded that the verdicts are unsafe and unsatisfactory[39], or that, because the applicant was denied the adjournment, he suffered an unfair trial in the sense that he lost a real chance of acquittal on counts 15 and 19. Consequently, ground 1 must fail.
Ground 7 – his Honour’s failure sufficiently to inform the applicant of matters relevant to his closing address
[39]See Dietrich at 355-356 per Toohey, J.
This ground alleges that “[t]he trial miscarried due to the failure of the trial judge to sufficiently or adequately inform the applicant that his closing address did not permit him to put additional factual matters to the jury and that if he did so they would be directed to disregard those matters as evidence in the trial.” It was contended by Mr. Lyon that his Honour did not sufficiently assist the applicant as to the nature of the closing address; intervened on several occasions during the applicant’s closing address to warn against making factual assertions and directed the jury to ignore factual assertions in the applicant’s closing address.
These contentions were considered by me in my analysis of ground 1 and for the reasons given there and in the context of considering grounds 2 and 3 below, I am of the view that this ground has no substance.
Grounds 2 and 3
These grounds are in the following terms.
“2.The learned trial judge erred in failing to direct the jury that if they acquitted the applicant of the offence of intentionally causing injury to [the victim] (Count 14) as a result of the Crown’s failure to negative lawful excuse (self-defence), they should not then return a verdict on the alternative count of recklessly causing injury (Count 15).
3.The learned trial judge erred in failing to relate his directions on self-defence to the factual issues in the trial.”
Mr. Lyon’s principal argument in support of these grounds was that, since self-defence was raised by the applicant’s counsel in cross-examination of Joseph and the victim, the applicant was entitled to have this defence properly explained to the jury in his Honour’s charge. Two complaints were put forward by counsel in that regard. First it was said that, although his Honour explained self-defence to the jury, he failed to relate that defence to the circumstances of the present case. Secondly, counsel said, that when his Honour did charge the jury on self-defence in the context of the case, he effectively dismissed the defence.
It is plain, however, that, as the applicant’s counsel properly conceded, there was no evidentiary basis for self-defence to be put to the jury. True it is that, when cross-examining Joseph and the victim, the applicant’s counsel put to each of them that soon after the applicant’s entry into the victim’s house the victim “came at him flailing with his arms ... punching towards the applicant” and that the applicant had not punched the victim. But both witnesses denied these assertions. Their evidence was to the effect that the applicant punched the victim on the two occasions in question. There was no evidence to the contrary. Thus, there was no evidence that the applicant acted in relation to the victim in self-defence nor was there any foundation in the evidence for the inference that he may have acted in self-defence.
In the circumstances, therefore, it is not surprising that Mr. Lyon quite properly agreed with the suggestion put in the course of the argument before us by Vincent, J.A. that, given the state of the evidence on the issue of self-defence, his Honour was under no obligation to put that so-called defence to the jury and that, in the circumstances, what his Honour told them in respect of that defence was not disadvantageous to the applicant.
In my view, therefore, these grounds must fail.
Ground 11
As originally formulated, this ground alleged that “the learned trial judge erred in his charge to the jury by failing to refer to the prior inconsistent statement by [the victim] at the committal proceedings in relation to count 19 which had been led in evidence at the trial”. The claim that his Honour failed to refer in his charge to the alleged prior inconsistent statements of the victim was withdrawn by the applicant in the letter from his solicitors to the Court dated 26 July 2002 and, as I understood Mr. Lyon, this particular complaint was not pursued. But it was contended by counsel that, although his Honour’s direction to the jury as to the prior inconsistent statement was basically correct, his Honour did not sufficiently relate the issue of the credit of the Crown witnesses which was attacked in cross-examination, to the defence case. In my view, however, his Honour sufficiently explained to the jury how they could assess the credit of witnesses and the evidence to which they might have regard for that purpose. His Honour also summarised the evidence of each witness including any cross-examination in respect of it. In my opinion, the applicant has not established any relevant error by his Honour and consequently, this ground must fail.
Grounds 4, 5 and 6
Ground 4 alleges that, in light of the acquittal of the applicant on counts 1 to 3, his Honour erred in “permitting the Crown to rely upon and assert an existence of a sexual relationship between the applicant and Melissa in proof of the remaining counts”. As I have mentioned, it was contended for the applicant under this ground that the existence or otherwise of a sexual relationship between the applicant and Melissa was irrelevant to the remaining counts, that it was highly prejudicial and confusing for the jury and that in the circumstances, his Honour should not have permitted the Crown to put to the jury as part of its case that such a relationship had existed.
Whether evidence of the relationship in question is admissible depends upon its relevance to a fact in issue – Wilson v. R.[40]. In my opinion, the existence of that relationship or one akin to it was relevant to explain the applicant’s alleged behaviour towards the victim on 7 July 1998. If established, a relevant relationship would go to show that the reason for his rage towards the victim was the victim’s involvement in the break-up of his relationship with Melissa. It was appropriate to have put before the jury that it was unlikely that the applicant would have been so enraged as to assault the victim in the manner he did if all that the victim had done was to take the applicant’s bed and some of his clothing, even if that included his favourite pair of underpants. It was more likely and more consistent with human experience that the applicant would have behaved towards the victim as the Crown alleges if he was shown to be a jealous and jilted lover, or at least a person with powerful sexual feelings, who was unable to control his rage.
[40](1970) 123 C.L.R. 334 at 339 per Barwick, C.J. and at 344 per Menzies, J.
The applicant’s counsel agreed with the suggestion made by the Chief Justice in the course of argument before us that, if the case had been conducted on the basis that there had been a relationship between the applicant and Melissa, that would be relevant to explain the allegedly offending conduct. But, said counsel, once it was asserted that there was a sexual relationship between those parties, the attempt to lead such evidence would be contrary to the applicant’s acquittal by direction on counts 1 to 3 and would only be prejudicial to the applicant. But the mere fact that the applicant was acquitted on these three counts, did not bar the Crown from contending that, on the evidence, it was open to the jury to infer that the relationship between the applicant and Melissa had sexual connotations. Counts 1 to 3 alleged a particular form of sexual relationship between them. There was, however, evidence before the jury from which they could have properly drawn the inference that the relationship was a sexual one albeit not one involving penile penetration. That evidence included the following. Melissa’s mother gave evidence that, in the late months of 1997 when visiting her daughter who lived in the same house as the applicant, she observed her engaged in domestic work such as washing and hanging out clothes and making the bed. Melissa’s mother also said that, in early 1998 when she stayed overnight in the applicant’s house and had slept in the spare room, she heard her daughter’s giggling coming from the main bedroom. Evidence was also given by Melissa’s aunt that, between March and July 1996, when Melissa resided at her home, she took her to see a doctor in Rushworth for the purpose of obtaining a prescription for the contraceptive pill. There was also evidence from the doctor, who essentially confirmed that the aunt had brought Melissa to him for consultation. He stated that as Melissa was already sexually active at the time and there was concern that she would have an unwanted pregnancy, he prescribed an oral contraceptive for her. The aunt also said in evidence that, at approximately 7 a.m. one morning in about April 1996, she went past Melissa’s room and observed that she and the applicant were in bed together.
Thus, in my view, his Honour did not err in permitting the Crown to claim to the jury as part of its case in relation to counts 15 and 19 that a sexual relationship had existed between the applicant and Melissa. Importantly, in his charge, the judge put in context the Crown’s reliance on the sexual relationship between the applicant and Melissa. His Honour said that the only relevance of the evidence concerning the sexual relationship between the parties was to show the state of mind of the applicant on 7 July 1998. It was explained to the jury that the Crown relied on that material to show the applicant’s motive and to explain his anger and the intensity of his emotions and feelings on that day. His Honour told the jury that that was the extent of the relevance of the evidence and that they must not use it for any other purpose. The learned judge went on to say that it would be wrong and contrary to law for them to reason that, because the applicant may have engaged in some improper conduct, he was the kind of person who was likely to have committed crimes the subject of the relevant counts.
Consequently, ground 4 must fail.
Ground 5 alleges that the trial miscarried because of the Crown’s failure to call Melissa who was, it was said, a material witness to the alleged assault and to the alleged sexual relationship with the applicant. But even if Melissa had been called and she denied the existence of a sexual relationship, for reasons given earlier, this would not have necessarily put an end to the matter. In any event, as has already been explained, the Crown led evidence to the effect that Melissa would not have been a reliable witness so that there was no obligation on the Crown to call her as a witness. See Richardson v. The Queen[41]; Whitehorn v. The Queen[42]; Apostilides v. R.[43]; Cannon v. Tahche[44]. Hence, this ground must also fail.
[41](1974) 131 C.L.R. 116 at 121-122 per Barwick, C.J., McTiernan and Mason, JJ.
[42](1983) 152 C.L.R. 657 at 674 per Dawson, J.
[43](1984) 154 C.L.R. 563 at 575-576 per Gibbs, C.J., Mason, Murphy, Wilson and Dawson, JJ.
[44][2002] VSCA 84 at [57-59, 79] per Winneke, P., Charles and Chernov, JJ.A.
Under cover of ground 6 the applicant claimed that his Honour erred in failing to direct the jury that certain inferences might be drawn by it against the Crown case by reason of its failure to call Melissa.[45] I have already dealt with the reasons why the Crown did not call her as a witness and, having regard to that, I am of the view that his Honour did not err as is contended for by the applicant. The judge formed the conclusion that, because any direction that he might give to the jury on the issue as to who should, or could, have called Melissa as a witness might have had an adverse effect on the applicant’s case, he declined his request to give any direction on the matter. In my view, his Honour did not err in that regard. Thus, this ground must also be rejected.
[45]Although this Court has said that Jones v. Dunkel may have application to criminal trials, it has also emphasised that the principle formulated in that case cannot be so applied without qualification. See, for example, R. v. Glennon [2001] VSCA 17 at [58] per Winneke, P. and Ormiston, J.A.; R. v. Holden [2001] VSCA 63 at [38-42] per Chernov, J.A. with whom Tadgell and Ormiston, JJ.A. agreed.
It was also claimed for the applicant that, even if no one error alleged by the applicant caused a miscarriage of justice, the cumulative effect of such errors was to produce that result. But for the reasons I have already given, the learned trial judge did not relevantly err as claimed by the applicant in each of the above grounds and, therefore, this argument cannot be progressed any further.
Grounds 8, 9 and 10
Those grounds, which need not be recited here, were not pressed by Mr. Lyon and in my view, he was correct to have adopted that course in relation to those complaints.
Applicant’s claims in reply
For completeness, I refer to the claims made by the applicant by way of reply after Mr. McArdle had concluded his submissions and after Mr. Lyon had informed the Court at the commencement of the hearing on the second day of the appeal that his instructions and those of his instructing solicitor had been withdrawn by the applicant that morning. The applicant then proceeded to make submissions by way of reply. He first sought a two to four week adjournment on the basis that he wanted to brief new counsel, saying that “I’ve been put in this position before sir by counsel”. The Crown opposed the application principally on the basis that, since both parties had made their respective submissions through counsel and the only outstanding matter was the applicant’s reply, it would be inappropriate to adjourn the further hearing of the appeal. The Court refused to grant the adjournment sought but stood the matter down until 12.30 p.m. on that day to enable the applicant to construct what he wanted to submit by way of reply. In the interim, we commenced hearing the next appeal.
When the hearing of this appeal resumed, the applicant made the following points.
(a)He was concerned that not enough had been said by his counsel on the appeal in his favour in relation to the Crown allegation that he had a sexual relationship with Melissa. He proceeded to explain that Melissa had been present at the trial daily and could have been called by the Crown. He also said that Melissa had withdrawn her earlier complaint to the police.
(b)Joseph’s claim that the applicant had admitted to him while he was in the applicant’s employ that he had sexual intercourse with Melissa was a lie. The applicant said Joseph never worked for him, and that the cross-examination of him (by his counsel at the trial) showed this. Nevertheless, he argued, this was not sufficiently pursued by his counsel (at the trial or on appeal).
(c)He went to the victim’s home merely to retrieve his property.
(d)The reasons for wanting to play to the jury his tape recording of his conversation with the Informant was to show that he had been wrongly harassed by him and by the Shepparton media in relation to the abducting of a young girl in Shepparton.
(e)In his evidence, the victim admitted that, on 7 July, the applicant had knocked on the door of his house in order to gain entry and that Joseph had opened the door and let him in.
(f)The photograph of the victim supposedly taken after the alleged assault did not show that he had any marks on his face that were consistent with the alleged assault.
(g)The reason he did not give evidence was that if he had done so, in light of his counsel’s cross-examination of Crown witnesses, his prior convictions would have been disclosed and he did not want that to occur.
The matters so put forward by the applicant do not add anything to the submissions so soundly made on his behalf by Mr. Lyon. All of them were canvassed at trial in one form or another and, for the reason that I have given in the course of analysing the applicant’s grounds of his application for leave to appeal against conviction, the complaints made by the applicant by way of reply do not demonstrate that his trial had miscarried.
Conclusion
In my opinion, notwithstanding the full and thorough submissions made by Mr. Lyon who put to the Court all that could be said in support of the above grounds, the application for leave to appeal against conviction should be dismissed.
Sentence application
I now turn to consider the application for leave to appeal against sentence. The applicant argued three out of the four grounds on which this application is based, namely, grounds 1, 3 and 4. In view of the firm conclusion that I have reached in relation to ground 4, it is unnecessary to consider the other two grounds that were pressed by Mr. Lyon. Ground 4 alleges that his Honour erred in finding as a fact, relevant to the exercise of the sentencing discretion, that the applicant had been in a sexual relationship with Melissa during the relevant period.
In my opinion, for the reasons that I give below, his Honour made the error contended for. The judge sentenced the applicant on the basis that the jury had concluded that he had a sexual relationship with Melissa when no such finding was necessarily made by them when they convicted him on counts 15 and 19.
Although I have already referred to some of his Honour’s sentencing remarks, it is necessary to re-state briefly the relevant aspects of them. Almost at the beginning of his sentencing remarks the learned judge said that “the evidence is, and I have no doubt that the jury so found, that [the applicant] had been in a sexual relationship with Melissa … for about two years prior to [the] offences [in question]”. After describing the circumstances of the offending in respect of which the jury had found the applicant guilty and after noting, inter alia, matters personal to him, including his criminal history as well as the other matters that were put to the court in mitigation of sentence, his Honour said: “I have no doubt, however, that a sentence of imprisonment is the only appropriate sentence to be imposed on you in all the circumstances”. In my view, on a fair reading of his Honour’s sentencing remarks, the “circumstances” to which his Honour referred included the applicant’s sexual relationship with Melissa which his Honour “had no doubt” the jury had found to exist.
But it is not necessarily the case that the jury made such a finding either in terms or by necessary implication. They had acquitted the applicant by direction of having a sexual relationship with Melissa that involved penile penetration but that, of course, did not mean that it was not open to them to conclude that there was a general sexual relationship between the two during the relevant period. Whether they did so, however, is open to conjecture. For reasons I have already given, a conclusion that such a relationship existed would not have been essential for the finding of guilt on counts 15 and 19. The jury may have been satisfied that the relationship was a close or an intense one and appreciated that they did not need to decide whether it was a sexual one for the purpose of determining the explanation or the underlying reason for the applicant’s feeling and conduct towards the victim. Thus, their verdicts do not necessarily carry with them the conclusion that they had found that the applicant had a sexual relationship a relationship with Melissa. It follows that it cannot be said, as his Honour did, that there was “no doubt” that the jury made such a finding.
Mr. McArdle, however, argued that, even if his Honour erred in concluding that that jury found that the applicant had a sexual relationship with Melissa, he did not take that matter into account as an aggravating factor for the purposes of the sentencing disposition. Mr. McArdle submitted that his Honour merely regarded such a finding as explanatory of the assaults of which the applicant was convicted. But in my opinion, the sentencing remarks make it clear that his Honour considered the finding as an aggravating factor which was relevant for sentencing purposes. There would have been no purpose in his Honour regarding the jury’s finding as merely explanatory of the applicant’s conduct. So to treat the jury’s finding would have been tantamount to regarding the existence of the relationship as a mitigating factor tending to explain the applicant’s impugned conduct as being an isolated event. This was clearly not the purpose for which his Honour referred to the matter; the judge’s reference to what he considered was the jury’s finding as to the sexual relationship in question was made in order to highlight this as a “circumstance”, which, taken together with other relevant “circumstances”, made it appropriate to impose on the applicant a sentence of imprisonment.
Thus, since in my view it was not open to his Honour to reach the conclusion that the jury must have found that the applicant had a sexual relationship with Melissa, and since the sentencing judge regarded that “finding” as a matter relevant to his sentencing disposition, it follows that there was sentencing error and consequently, the applicant falls to be re-sentenced by this Court.
In light of this conclusion it is unnecessary to consider whether his Honour failed to accord the applicant procedural fairness before treating the relevant sexual relationship as an aggravating factor in his sentencing disposition. It should be noted, however, that at the hearing of the plea in mitigation the prosecutor pressed a number of matters on the sentencing judge as being relevant to the exercise of his sentencing discretion. Those factors did not include the sexual relationship between the applicant and Melissa. Thus, the applicant had no warning from the prosecutor’s submissions or from what his Honour said during the proceeding that this significant factor might be taken into account by his Honour as an aggravating factor in determining the appropriate sentence. In my opinion, it is at least arguable that his Honour should have given the applicant the opportunity to address him on that important issue before he took it into account in the manner described particularly as he was unrepresented. As I have said, however, in light of my earlier conclusion as to the existence of sentencing error, there is no need to take this matter any further.
In re-sentencing the applicant, it is appropriate in my view to take into account, without repeating them, the factors mentioned by his Honour in his sentencing remarks as going to the sentencing disposition. I would only highlight that the offences of which the applicant was convicted were serious ones particularly in the context of this case. Given the applicant’s physical superiority over the victim, the assault was a cowardly one which was committed in the victim’s home which the applicant entered effectively by use of force or threat of force. In all the circumstances, I would propose that the applicant be sentenced on each count to the same period of imprisonment that was imposed by his Honour and that there be the same cumulation that his Honour ordered. In my view, however, notwithstanding
that the offence was committed during the period of an earlier suspended sentence, given the applicant’s personal circumstances, including his commitment to his business, I regard his prospects of rehabilitation as reasonable and consequently, I would fix a non-parole period of six months. Given that the applicant has already served approximately three months of the original sentence, he will be eligible for parole at the expiration of a similar period and, hopefully, he will get on with his life without engaging in the anti-social behaviour which has formed part of his life up to the present offendings.
VINCENT, J.A.:
I agree for the reasons advanced by Chernov, J.A.
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- AGLC
- R v Osborne [2002] VSCA 156
- Case
- [2002] VSCA 156
- Decision Date
CaseChat Overview and Summary
The court examined the principles relevant to the consideration of an adjournment application in light of the appellant's termination of counsel's retainer. The court considered the meaning of the right to a fair trial, assessing whether the trial was unfair to the appellant and if it resulted in a miscarriage of justice. The court applied the test to determine whether a miscarriage of justice had occurred, focusing on whether the appellant was deprived of a real chance of acquittal. The court found that the termination of counsel's retainer did not necessarily lead to an unfair trial or a miscarriage of justice, and the appellant's right to a fair trial was not compromised.
The court concluded that the sentencing judge taking into account a matter adverse to the appellant, which was not necessarily determined by the jury, did not constitute a sentencing error. The court found that the appellant had not demonstrated a miscarriage of justice or that he was deprived of a real chance of acquittal. Therefore, the appeal against both conviction and sentence was dismissed. The court's final orders were that leave to appeal was refused, and the original conviction and sentence remained in place.
Orders
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