R v Soong

Case [2021] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION:

R v Soong [2021] QCA 53

PARTIES:

R
v
SOONG, Anthony Yoon Sun
(appellant)

FILE NO/S:

CA No 43 of 2019
SC No 1223 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Southport – Date of Conviction: 5 February 2019 (Burns J)

DELIVERED ON:

26 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

24 November 2020

JUDGES:

Sofronoff P and Morrison JA and Henry J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant appealed against a conviction of attempted murder – where defence counsel did not clearly establish the making of a prior inconsistent statement by the complainant – whether the course taken by the defence counsel at trial deprived the accused of a chance of acquittal which was fairly open – whether there was a miscarriage of justice

Browne v Dunn (1893) 6 R 67 (HL), considered
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

COUNSEL:

S C Holt QC, with R C Taylor, for the appellant
D Nardone for the respondent

SOLICITORS:

Gatenby Criminal Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of Henry J and with the order proposed.

  2. MORRISON JA:  I have read the reasons of Henry J and agree with those reasons and the order his Honour proposes.

  3. HENRY J:  The appellant was seriously displeased by his former girlfriend taking up with another man, Josh Milani.  After assaulting his girlfriend the appellant lured Mr Milani to meet him in a restaurant carpark.  Mr Milani was driven there by his friend, Samuel Wallace.  The appellant ambushed them on their arrival, firing four shots from a handgun at the driver’s side of their car.  One of the bullets penetrated the vehicle and the thigh of Mr Wallace, who the appellant mistakenly believed was Mr Milani.  The appellant then drew nearer to the vehicle and “pistol whipped” Mr Wallace.

  4. A jury found the appellant guilty of attempted murder.  The appellant appeals that decision.

  5. The sole ground of appeal relates to a course taken by defence counsel in not clearly establishing the making of a prior inconsistent statement by Mr Wallace relevant to Mr Wallace’s evidence that the appellant tried and failed to fire a fifth shot at his head, immediately prior to pistol whipping him.

  6. It is necessary to say a little more about the background from which this ground of appeal arises in order to explain why the course taken by defence counsel is readily explained by forensic considerations and the appeal must fail.

    Background

  7. The appellant was charged on indictment with:

    Count 1 – burglary and common assault;
    Count 2 – attempted murder;
    alternatively
    Count 3 – malicious act with intent; and
    Count 4 – assault occasioning bodily harm whilst armed.

  8. All of the offences were alleged…

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R v Soong [2021] QCA 53
Case
[2021] QCA 53
Decision Date

CaseChat Overview and Summary

In the case of R v Soong, the appellant sought to challenge his conviction for attempted murder on the grounds of a perceived miscarriage of justice due to alleged ineffective assistance of counsel. The appellant argued that defence counsel's failure to establish a prior inconsistent statement made by the complainant deprived him of a fair chance at acquittal. This was the second trial for counts 2 and 3, with the first ending in a hung jury. The appellant had pleaded guilty to counts 1 and 4, not guilty to count 2, and guilty to grievous bodily harm simpliciter in respect of count 3. The court had to determine whether the appellant's trial was fair and whether the alleged deficiencies in legal representation amounted to a miscarriage of justice.

The legal issues at hand revolved around whether the course taken by defence counsel at trial deprived the appellant of a chance of acquittal that was fairly open. The court examined the tactical choices made by defence counsel, specifically in relation to how to address the complainant's allegation that the gun misfired when pointed at the appellant's head. The court needed to consider whether the failure to establish a prior inconsistency in the complainant's statement could be seen as a strategic decision that did not result in a miscarriage of justice. The court also considered the rule in Browne v Dunn, which requires that prior inconsistent statements be squarely put to the witness to ensure a fair opportunity for comment.

The court found that the tactical choice made by defence counsel, while seemingly surprising, was explicable as part of an indirect strategy to undermine the reliability of the misfire allegation. The court noted that if the prior inconsistency had been put to the complainant, he would have explained that he mentioned it to the police two weeks later, which would have lessened the impact of the inconsistency on his reliability. The court concluded that the omission was part of a strategic decision to avoid the disadvantageous consequences of complying with the rule in Browne v Dunn. As such, the court held that the appellant was not deprived of a chance of acquittal that was fairly open, and the appeal was dismissed.

The court's final orders were to dismiss the appeal. This decision reinforces the stringent test required to demonstrate a miscarriage of justice due to ineffective assistance of counsel and highlights the importance of tactical choices in legal representation.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

It is necessary to say a little more about the background from which this ground of appeal arises in order to explain why the course taken by defence counsel is readily explained by forensic considerations and the appeal must fail.Background The appellant was charged on indictment with:Count 1 – burglary and common assault;Count 2 – attempted murder;alternativelyCount 3 – malicious act with intent; andCount 4 – assault occasioning bodily harm whilst armed. All of the offences were alleged to have occurred on 6 December 2015 at the Gold Coast. Count 1 related to the appellant entering a dwelling in which his former girlfriend, Jhai Saric, was located and therein assaulting her and another man. Count 2 alleged the attempted murder of Mr Wallace. Count 3 alleged, in the alternative to count 2, the doing of grievous bodily harm to Mr Wallace with intent to do some grievous bodily harm. Count 4 alleged the assault occasioning bodily harm whilst armed of Mr Wallace, that being the pistol whipping. The appellant pleaded guilty to counts 1 and 4, and not guilty to count 2. In respect of count 3, he pleaded not guilty to doing grievous bodily harm with intent to do grievous bodily harm, but guilty to grievous bodily harm simpliciter, a plea which was not accepted by the prosecution in discharge of the indictment. This was the second trial of counts 2 and 3, a previous jury having failed to reach a verdict. The appellant’s relationship with Ms Saric ended in November 2015. By 4 December 2015 Ms Saric was embarking upon a new relationship with Mr Milani. The appellant thereafter sent a variety of extremely threatening text messages to Ms Saric. At about midday on 6 December 2015 the appellant attended the unit where Ms Saric lived, striking at its windows and flyscreen and yelling for Ms Saric to come out or let him in. He eventually effected entry by smashing the door in. He was armed with a handgun. He proceeded to assault Ms Saric by pinning her on a bed with his hand and knee. A neighbour, Mr McKenzie, entered, concerned by what he could hear. The appellant pointed the gun at him and Mr McKenzie fled. By this afternoon the appellant had already sought out Mr Milani’s Facebook account and sent him a number of messages, including content such as:“I’m going to get you you cunt. Promise you that. You want to fuck Jhai? You fucking dog. Come meet me up, you fucking maggot.”“You’re a weak dog. I’m going to kill you, cunt.” Mr Milani may have been unaware of some of those messages prior to the events of 6 December. It appears the appellant took Ms Saric, who did not give evidence, to another location and took a photograph of a gun pointed at her head. The appellant then telephoned Mr Milani, shouting that he wanted to meet up with him and kill him. This was shortly followed by another phone call to Mr Milani during which the appellant said he knew Mr Milani’s brothers and family. Mr Milani could hear a female screaming in the background of the appellant’s phone call to him. The appellant told him to look at a photograph he had sent to Mr Milani’s phone. He did so and saw that it was a photograph of Ms Saric covering her face with a gun pointed at her. The appellant told Mr Milani to meet him at a Gold Coast restaurant known as Mike’s Kitchen. Mr Milani’s friends tried to dissuade him from going, but he was determined to go. His good friend Mr Wallace accompanied him, driving him in Mr Wallace’s Jeep to the carpark area of the restaurant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The rationale underlying that stringent test is that the assessment of whether there has been a miscarriage of justice usually involves consideration of whether the course complained of deprived the accused of a chance of acquittal which was fairly open.[3] The task of defending an accused invariably requires the making of tactical choices calculated at obtaining forensic advantage or avoiding forensic disadvantage. Such choices may result in the foreclosing of one otherwise open line of pursuit of a chance of acquittal because another, different line of pursuit of a chance of acquittal is preferred. In such a context the foreclosing of the forensically less preferred line will not ordinarily deprive the accused of a chance of acquittal which is fairly open.[4][3]TKWJ v The Queen (2002) 212 CLR 124, 133.[4]TKWJ v The Queen (2002) 212 CLR 124, 134.Consideration The forensic choice below involved how best to deal with Mr Wallace’s allegation that the accused held the gun towards Mr Wallace’s head and pulled the trigger without the gun then discharging (“the misfire allegation”). Specifically, the choice was whether to put to Mr Wallace the prior inconsistency that when he gave an account to police on the day he was shot he did not mention the misfire allegation. If it was intended to establish and address on the prior inconsistency as undermining Mr Wallace’s reliability, the rule in Browne v Dunn[5] obliged the very experienced defence counsel to squarely put the prior inconsistency to Mr Wallace, to give him fair opportunity to comment on it. It was not so put. Had it been, Mr Wallace would inevitably have explained he was in shock when he spoke with police on the day in question and in re-examination have explained that he did mention the allegation to police two weeks later when they took his statement. This was known to be inevitable because that is what happened when the inconsistency was put at the first trial.[6] Such explanations would have carried the disadvantage for the defence that they seem reasonable and thus diminished the forensic impact of the inconsistency upon Mr Wallace’s apparent reliability.[5](1893) 6 R 67 (HL).[6]AR 580 L 1. At first blush the non-putting of the inconsistency may seem surprising, given the desirability of undermining the reliability of the misfire allegation. However, on closer analysis, it can be seen the omission was explicable as part of a strategy calculated at undermining the reliability of the misfire allegation indirectly and thus avoiding the disadvantageous consequence of complying with the rule in Browne v Dunn.[7][7](1893) 6 R 67 (HL). At the start of the trial, in an issues opening,[8] defence counsel reminded the jury of the Crown Prosecutor’s opening of Mr Wallace’s evidence about the misfire allegation and said:“[Y]ou will hear in due course that Mr Wallace was interviewed by police at about 5 pm that particular afternoon – so within an hour or so of the incident occurring. When describing what he remembers occurring to the police on that occasion, he indicated that there were shots fired towards the car, and he was hit, and the vehicle rolled forward for some period, and then the accused man walked up to the window and proceeded to pistol-whip him. During the direct interview with the police officers, he makes no specific mention of the gun being pointed at his head and then the misfire occurring.”[9]Defence counsel went on to open that Mr Milani did not witness any misfire.[8]Per R v Oulds [2014] QCA 223.[9]AR Vol 1 p 36 L 28.