Rowson v The State of Western Australia - [2025] WASCA 139

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ROWSON -v- THE STATE OF WESTERN AUSTRALIA [2025] WASCA 139
CORAM:   MAZZA JA
HALL JA
ARCHER JA

HEARD:   18 JUNE 2025
DELIVERED          :   19 SEPTEMBER 2025
FILE NO/S:   CACR 75 of 2017
BETWEEN:   CHRISTOPHER NEIL ROWSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   SCOTT DCJ
File Number            :   IND 102 of 2016

Catchwords:

Criminal law - Application to set aside notice of discontinuance - Where application filed after delay of almost seven years - Whether notice a nullity - Whether applicant instructed lawyers to file notice - Whether grounds to exercise discretion to grant leave to withdraw notice - Whether proposed ground of appeal has merit

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(l)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	P N Bevilacqua
Respondent	:	G N Beggs

Solicitors:

Appellant	:	Abbas Jacobs Lawyers
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Ching v The King [2025] WASCA 2
Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202
Huggins v The State of Western Australia [2018] WASCA 61
KAN v The State of Western Australia [2021] WASCA 182
McMahon v The State of Western Australia [2010] WASCA 143
Newton v The State of Western Australia [2023] WASCA 116
Rowson v The State of Western Australia [2018] WASCA 82
Shah v The Queen [2019] WASCA 110
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Tran v The State of Western Australia [2023] WASCA 125
YNT v The State of Western Australia [2020] WASCA 80

Table of Contents

Overview

The convictions and sentence

The application and the evidence relied on

Relevant legal principles

Events leading up to the discontinuance notice

The circumstances of the filing of the discontinuance notice

The applicant's evidence

Christopher Rowson

Neil Rowson

Nikeeta Bell

The respondent's evidence

Martin Hugh Tuohy

The applicant's submissions

The respondent's submissions

Was the discontinuance notice a nullity?

If the discontinuance notice is not a nullity, should leave to withdraw be given?

Conclusion

JUDGMENT OF THE COURT:

Overview

On 17 November 2016, the applicant was found guilty after trial of three drug-related offences. He filed notices of appeal against his sentence and conviction. On 31 August 2017, the applicant's then legal representatives, Equitas Lawyers, filed a notice discontinuing the conviction appeal. On 6 September 2017, a certificate of conclusion of criminal appeal in respect of the conviction appeal was signed by the Acting Court of Appeal Registrar. On 24 May 2018, the applicant's appeal against sentence was dismissed.[1]
[1] Rowson v The State of Western Australia [2018] WASCA 82.
On 19 August 2024, almost seven years after the conviction appeal was discontinued, the applicant filed an application seeking an order that the notice discontinuing his conviction appeal is a nullity. In the alternative, the applicant seeks leave to withdraw the notice, under s 40(1)(l) of the Criminal Appeals Act 2004 (WA). The applicant also seeks an order that the certificate of conclusion of criminal appeal of 6 September 2017 be set aside.
At the heart of the application is the applicant's assertion that the notice of discontinuance was filed contrary to his instructions. For the reasons that follow, we do not accept this. Nor is there any basis for exercising the court's discretion to permit the notice to be withdrawn. The application should be dismissed.

The convictions and sentence

The applicant was convicted after trial of three offences:
1.Possession of methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). This offence involved about 2.131 kg of methylamphetamine located in and about a spa at the applicant's house, together with an unascertained additional quantity dissolved in spa water which was disposed of on the applicant's lawn.
2.Possession of methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act. This offence involved 35.97 g of methylamphetamine located in the applicant's wardrobe.
3.Having ready access simultaneously to both a dangerous weapon, namely an air rifle, and a prohibited drug, namely methylamphetamine, when not authorised under the Misuse of Drugs Act to be in possession of that drug, contrary to s 68E(2) of the Criminal Code (WA).
The applicant was charged with count 1 jointly with Ahmet Nuhana. Mr Nuhana was also convicted of count 1, although his conviction was subsequently set aside on appeal and a judgment of acquittal substituted. Another co‑offender, Shaun Mather, pleaded guilty to count 1 and was sentenced to 12 years 6 months' imprisonment.
All the offences were committed at Mount Richon on 9 April 2015. The house in which the drugs and the air rifle were found was one in which the applicant was residing.
The applicant's trial counsel was Terry Dobson, who has since passed away.
The applicant did not give evidence in his trial. In essence, his defence case was that the drugs found at the house were not his and that they had been brought there by Mr Mather without the applicant's knowledge or agreement.
The applicant was sentenced to a total effective sentence of 15 years' imprisonment.
The circumstances of the applicant's offending were summarised in the following way in the sentence appeal:[2]
[2] Rowson [7] - [18].
The [applicant] was the sole occupant of a house at Mount Richon. The premises contained features and paraphernalia which were consistent with them being used in the facilitation of drug‑dealing activities, including:
(1)Combination locks on the outside doors of the back room and the main bedroom.
(2)A CCTV system in the house which was linked to a monitor in a back room, which enabled the occupants of that room to maintain surveillance on outer areas of the premises, including the driveway.
(3)A signal jammer, a camera detector, and a radio frequency detector.
There were a number of weapons on or about the premises. In the back room there was an air rifle just inside the door, a double‑bladed sword with another sword inside the handle, and a heavy steel baton with a knife inside the handle. In the walk‑in robe in the bedroom there was a neck knife on a lanyard, two sets of metal knuckledusters, a credit card knife which could be carried in a wallet, a knuckleduster knife and starter gun. In a Mercedes motor vehicle parked at the premises, there was a single sharp‑bladed knife which folded out. The weapons were capable of being used to threaten or deter any intruder who might endeavour to enter the premises to steal drugs and/or cash.
There were photographs on the [applicant's] mobile phone, taken no more than a couple of weeks prior to 9 April 2015, of the [applicant] at the house displaying cash totalling at least $400,000, which was derived from or utilised in dealing in drugs.
In the back room there was a mixing bowl with MSM (being a popular cutting agent), digital scales, bowls and items to mix methylamphetamine with MSM for the purposes of cutting it, numerous clip‑seal bags, loose latex gloves and a box of latex gloves, a bottle of acetone and a vacuum sealer. The [applicant's] DNA was recovered from the outer surface of one of the latex gloves, and the inner and outer surfaces of another glove.
Shaun Mather came to the [applicant's] house in possession of a considerable quantity of high‑purity methylamphetamine, the majority of which was in the vicinity of 80% pure methylamphetamine. The weight of the methylamphetamine was 2.131 kg, plus an indeterminable quantity in the residual spa water. Given the purity of the methylamphetamine, the trial judge was satisfied that the [applicant] was close to the source.
Mr Mather attended the [applicant's] house in accordance with a prior arrangement for the purpose of cutting and packing the methylamphetamine for sale. The [applicant] provided the premises for that purpose and assisted Mr Mather in the back room.
The [applicant] let Mr Mather into the back room where they began to cut it and package it in clip‑seal bags. At a purity of an average of 80%, in light of evidence that the street purity at the time was 60%, the weight of the end product would be in the vicinity of 2.5 kg. The value of that end product at street level well exceeded $2 million.
Police raided the premises, cutting short the processing of the methylamphetamine. Their attendance would have been evident from the CCTV monitor in the back room. There was then a panicked attempt by Mr Mather to secrete or dump the methylamphetamine into a spa bath located in an enclosed patio area near the back room.
The [applicant] was in joint possession of the methylamphetamine, and intended to sell or supply the methylamphetamine the subject of count 1 primarily for commercial gain. The sentencing judge could not make a finding as to whether the commercial gain would be in the form of product or cash, or a combination of both.
The sentencing judge was not satisfied beyond reasonable doubt that the [applicant's] intention was to sell or supply the finished product directly to the community. However, at the very least the [applicant] was in possession of this significant quantity of methylamphetamine for the purposes of processing it, with the intent that it be distributed into the community, whether directly or indirectly. Either way, the end product was intended by the [applicant] to find its way into the community.
As to count 2, 35.97 g of methylamphetamine was located in the walk‑in robe of the main bedroom of the [applicant's] house. The sentencing judge was unable to make any positive finding as to the extent to which this quantity of methylamphetamine was solely or primarily for commercial gain, which would be an aggravating factor. The sentencing judge accepted that the [applicant] was, at the time, addicted to, and a daily user of, methylamphetamine. The [applicant] was sentenced on the basis that he was in possession of that quantity of methylamphetamine with intent to sell or supply it or part of it to another.
As to count 3, the air rifle was in the corner of the back room near the door. Absent any explanation as to a lawful excuse for having the weapon in that proximity to the methylamphetamine, the only reasonable inference was that it was available to be used to at least threaten if need be.

The application and the evidence relied on

On 28 March 2017, the applicant filed a notice of appeal against his conviction. That notice contained three grounds. The first ground contended that there had been a miscarriage of justice by reason of the incompetence of trial counsel. The second ground alleged, in essence, that the verdicts of guilty were unreasonable or unsupported by the evidence. The third ground alleged that the trial judge had erred in his directions to the jury regarding the elements of possession and the need for the jury to consider only the answers given by the witnesses.
On 31 August 2017, the applicant's lawyers filed a notice of discontinuance in respect of the conviction appeal. The notice was signed by the applicant's then solicitor, Tracy McNamara, of Equitas Lawyers.
On 6 September 2017, the Acting Court of Appeal Registrar signed a certificate of conclusion of criminal appeal.
On 19 August 2024, the applicant filed an application seeking an order that the notice of discontinuance filed on 31 August 2017 is a nullity. In the alternative, the applicant seeks that this court exercise its discretionary power under s 40(1)(l) of the Criminal Appeals Act to grant leave to withdraw the discontinuance notice. The applicant also seeks an order that the certificate of conclusion be set aside.
In support of his application, the applicant filed an affidavit he had sworn, and affidavits sworn by his father Neil Rowson (Mr Rowson Snr) and his ex‑partner Nikeeta Bell, and affirmed by a solicitor Wafik Mridha.[3] The applicant, his father and Ms Bell also gave oral evidence at the hearing and were cross-examined.
[3] Affidavit of Christopher Neil Rowson, sworn 14 August 2024; affidavit of Neil Rowson, filed 11 September 2024; affidavit of Nikeeta Bell, filed 11 September 2024; affidavit of Wafik Mridha, filed 11 September 2024.
The State filed affidavits sworn by Martin Hugh Tuohy and Josephine Dineen‑Griffin.[4] Mr Tuohy is the sole director of Equitas Lawyers Pty Ltd, the firm acting for the applicant at the time that the notice of discontinuance was filed. Ms Dineen‑Griffen works in the Department of Justice and gave evidence about the Department's system for recording information about phone calls made by inmates at Acacia Prison, and what those records relevantly show. Mr Tuohy also gave oral evidence at the hearing and was cross‑examined.
[4] Affidavit of Josephine Dineen-Griffin, sworn 10 March 2025; affidavit of Martin Hugh Tuohy, sworn 19 November 2024.

Relevant legal principles

The relevant legal principles concerning the withdrawal of a notice of discontinuance - whether because the notice is a nullity or in the exercise of the discretionary power in s 40(1)(l) of the Criminal Appeals Act - are outlined in KAN v The State of Western Australia,[5] and YNT v The State of Western Australia.[6] Those principles have also been recently applied in Newton v The State of Western Australia,[7] and Ching v The King.[8] It is unnecessary to repeat those principles here.
[5] KAN v The State of Western Australia [2021] WASCA 182 [31] ‑ [35].
[6] YNT v The State of Western Australia [2020] WASCA 80 [31] ‑ [34].
[7] Newton v The State of Western Australia [2023] WASCA 116.
[8] Ching v The King [2025] WASCA 2.
It is sufficient to say that a notice of discontinuance will be a nullity if it was not the result of a deliberate and informed decision by the applicant. The onus is on the applicant to establish that the notice was not the result of a deliberate and informed decision on his or her part. If that is established, the notice should be set aside.
A deliberate and informed decision is one made with an understanding of the nature and effect of the discontinuance notice. In essence this requires an appreciation that the notice will bring the appeal to an end without any right to reinstate it at a later time.[9] A notice filed on the basis of legal advice as to the prospects of the appeal is not a nullity, even if that advice is mistaken.
[9] See, for example, Shah v The Queen [2019] WASCA 110.
A lawyer has general authority to make decisions regarding the conduct of criminal proceedings. However, the significance of the legal consequences of filing a notice of discontinuance is such that a lawyer does not have authority to sign and file a notice of discontinuance without the client's prior approval. The decision to file a notice of discontinuance is one that must be made personally by an appellant with an understanding of the purpose and consequences of the notice.[10]
[10] Tran v The State of Western Australia [2023] WASCA 125 [25] ‑ [26].
The court also has a discretion to set aside a notice of discontinuance that is not a nullity. The exercise of that discretion is informed by the strong public interest in the finality of litigation. The extent and reason for any delay between the discontinuance and the application to withdraw must be taken into account. Further, the merits of the appeal will always be relevant and are often determinative. If there has been significant delay after the discontinuance, the applicant must establish that a miscarriage of justice would occur if the applicant was not permitted to withdraw the discontinuance notice.

Events leading up to the discontinuance notice

Mr Tuohy's evidence set out the history of the proceedings, which was not challenged up to the point at which he says Equitas Lawyers received instructions to discontinue the conviction appeal. Mr Tuohy's evidence also included file notes, advices, emails, and letters created by lawyers and counsel then acting for the applicant.
The following summary largely comes from Mr Tuohy's evidence.
The lawyers from Equitas Lawyers who had day‑to‑day carriage of the applicant's matter were Ms Tracy McNamara and Ms Josephine Byrne. Ms McNamara was the senior of the two. Mr Tuohy had overall supervision of the applicant's matter within the firm.[11]
[11] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 5 - 6.
In around mid‑to‑late December 2016, Equitas Lawyers received initial instructions from the applicant and Mr Rowson Snr, after the applicant had been convicted, but before he had been sentenced.[12]
[12] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 6.
Equitas Lawyers briefed David Grace QC to appear for the applicant at the sentencing hearing on 10 March 2017.[13]
[13] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 6.
About a week after the applicant's sentencing, the applicant instructed Ms McNamara to brief Tom Percy QC to provide an opinion as to the merits of an appeal against conviction and sentence, and to file appeal notices in the meantime to preserve his position pending the advice.[14]
[14] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 6 - 7.
On 20 March 2017, Equitas Lawyers briefed Mr Percy QC to provide the opinion. On 28 March 2017, Ms McNamara filed appeal notices with respect to the conviction and sentence.[15]
[15] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 7.
On 21 April 2017, Mr Percy QC provided his opinion.[16]
[16] Mr Percy QC's opinion is annexure 'MHT 1' to the affidavit of Martin Hugh Tuohy, sworn 19 November 2024.
It appears that Mr Percy QC was told that the applicant asserted that he did not know anything about the large quantity of methylamphetamine the subject of count 1, and that the applicant believed that the methylamphetamine found in his wardrobe was a legal synthetic drug. Mr Percy QC noted that he had been told that Mr Mather may have subsequently admitted that the applicant did not know anything about the drugs the subject of count 1, but that he (Mr Percy QC) had not been given any evidence of this and could not advise 'where this might go'. Mr Percy QC said, however, that it would be necessary to get Mr Mather to provide sworn evidence.[17]
[17] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 32 [17], 41 [88] - [89].
Mr Percy QC was further told that the applicant had not given evidence because of advice given to him by his trial counsel Terry Dobson. The advice was that, if the applicant gave evidence, he would expose himself to cross‑examination about his prior convictions for possession of methylamphetamine with intent to sell or supply it. Mr Percy QC said that Mr Dobson's advice was probably incorrect.[18]
[18] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 36 [50] - [51], [54].
Having regard to the weight of the evidence, Mr Percy QC advised that the only ground of appeal with any chance of success was to assert that there had been a miscarriage of justice due to Mr Dobson's advice. However, even in relation to that ground, Mr Percy QC's opinion was that the chance of succeeding in an appeal against conviction was no higher than 20%.[19]
[19] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 52 [179].
Equitas Lawyers provided copies of the opinion to the applicant and his father.[20]
[20] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 7 - 8.
On 2 May 2017, the applicant's father, Mr Rowson Snr advised Ms McNamara that the applicant wished to proceed with appeals against both conviction and sentence, and wished to engage Mr Grace QC to act for the applicant.[21]
[21] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 8.

On 22 June 2017, Ms McNamara and Mr Grace QC met with the applicant at Acacia Prison. Ms McNamara made a file note of this meeting.[22] In the file note, Ms McNamara identified Mr Grace QC by the notation 'D/G', and the applicant (whose first name is Christopher) by the notation 'C/R'. The file note included the following:[23]
[22] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 5'.
[23] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 68 - 69, 71 - 72, 74.
Appeal
D/G: If run appeal against conviction reg affidavit reg circum of why he didn't give evidence at trial, what witnesses he would have called & how they could have changed anything.
Chances would be zilch.
Court will direct that affidavit to be provided by Dobson.
Dobson probably would say [that the applicant spent] ½ trial asleep in the dock. How could he have called you to give evidence in that state?
Dobson would say he had a lengthy conversation with him about not giving evidence.
…

C/R: He was always supposed to give evidence, but then Dobson wouldn't let him.
D/G: Only chance of appeal against conviction is to swear affidavit that relates to wrong advice you were given which has resulted in an injustice or a miscarriage of justice.
…
D/G: What could you have said that hasn't already been said? How does you saying that you didn't know [about the drugs] would have helped?
D/G: Evidence before the Court was overwhelming.
…
D/G: Can't find any other ground of appeal for conviction other than incompetence of counsel - he won't be able to make that ground out - test for [incompetence] of counsel is very high. If by some fluke the Court of Appeal orders there be a retrial then most likely be convicted again on the same evidence.
D/G: Advice is that the reality of this all is that the chances of this being successful in his appeal against conviction are remote and nearly impossible. Better chance with sentence appeal.
…
D/G: What you got sentenced to was unfair - better prospects of success [sentence appeal].
D/G: Need to decide what to do - need to file Appellant's Case soon for [conviction and] sentence.
…
D/G: Evidence is so strong going to get convicted anyway. Without Mather providing [an] affidavit that you had no knowledge, then you face the same outcome.
D/G: If continue to run conviction appeal then run risk of compromising sentence appeal as cannot submit you are remorseful which would assist in sentence appeal.

Following that meeting, and on the same day, Ms McNamara and Mr Grace QC met with Mr Rowson Snr. Ms McNamara made a file note of this meeting.[24] The file note included the following:[25]
D/G: Conviction appeal problematic. Prospect of success RE: conviction appeal is remote. Do not think that decision that Chris not give evidence has led to a miscarriage of justice.
[24] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 6'.
[25] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 77.
The file note records that this meeting lasted over two hours.

On 23 June 2017, Ms McNamara took a telephone call from Mr Rowson Snr. Ms McNamara kept a file note of that telephone conversation.[26] The file note included the following:[27]
[Mr Rowson Snr] enquired as to whether [the applicant] could discontinue the conviction appeal now and then file an appeal later on down the track when Mather's sentence appeal has been finalised.
They do not think that Mather will assist [the applicant] now given that he is appealing his sentence however … once Mather's sentence appeal has been determined, Mather might be more willing to assist [the applicant] with his appeal against conviction and provide us with 'fresh evidence'.
[26] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 7'.
[27] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 91.
Ms McNamara sought advice on the matters raised by Mr Rowson Snr from Mr Grace QC.[28] Mr Grace QC initially said that the appeal against conviction could be discontinued, and a new appeal brought later with fresh evidence. On 29 June 2017, Mr Grace QC corrected that advice by email.[29] He advised that this court had taken the view that a discontinued appeal precluded any further appeal. Mr Grace QC confirmed his advice that, as things presently stood, there were no arguable grounds of appeal against conviction. He said '[t]he key will be Mather and whether he is prepared to swear an affidavit outlining the true situation as conveyed to us by [the applicant]'.[30]
[28] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 10.
[29] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 9'.
[30] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 99.
The same day, Ms McNamara advised Mr Rowson Snr of Mr Grace QC's revised view as to recommencing an appeal on conviction.[31]
[31] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 10'.
On 30 June 2017, Ms McNamara had a telephone conversation with Mr Rowson Snr. Ms McNamara kept a file note of that conversation.[32] The file note included the following:[33]
They have read [Mr Grace QC's] email dated 29 June 2017, and they agree with the proposed course of action.
They would like to know whether we can extend the time frame in which to file the Appellant's Case to 30 September 2017 instead of 31 August 2017.
It is difficult to communicate with Mather in prison and they require more time.
[32] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 11'.
[33] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 107.
Equitas Lawyers applied for an extension of time to file the appellant's case on 3 July 2017. The court granted an extension of time to 31 August 2017.[34]
[34] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 13.
Equitas Lawyers attempted to communicate with Mr Mather about providing an affidavit to support the applicant's appeal against conviction.[35] Mr Tuohy deposes that Mr Mather did not respond.[36] In his oral evidence, the applicant acknowledged that Equitas Lawyers had difficulty in contacting Mr Mather.[37]
[35] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 12'.
[36] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 13.
[37] Application ts 13.
On 2 August 2017, Equitas Lawyers wrote to the applicant at Acacia Prison confirming that Mr Grace QC had advised the applicant in the meeting on 22 June 2017 that 'there are minimal prospects of success in relation to your appeal against conviction'.[38] The applicant admits receiving this letter, and admits that Mr Grace QC had given him that advice.[39]
[38] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 13'.
[39] Application ts 13.
The letter went on to ask the applicant to contact Ms McNamara to provide instructions as to whether he wished to continue with the appeal against conviction.[40] The applicant admits he was being asked to provide instructions as to whether he wanted to discontinue the conviction appeal. He admits that he understood this would bring the appeal to an end.[41]
[40] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 116.
[41] Application ts 13.
The same day, Mr Rowson Snr had a telephone conversation with Ms McNamara. Ms McNamara kept a file note of that conversation.[42] The file note included the following:[43]
I advised [Mr Rowson Snr] as follows:
…
The Appellant's Case needs to be filed by 31 August 2017 so [the applicant] needs to provide us with his instructions as to whether he wishes to proceed or discontinue the conviction appeal.
[Mr Rowson Snr] advised as follows:
He will speak to [the applicant] and get back [to me].
[42] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 14'.
[43] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 119 - 120.
On 9 August 2017, the applicant had a telephone conversation with Ms McNamara. Ms McNamara kept a file note of that conversation.[44] The file note included the following:[45]
[44] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 15'.
[45] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 122.
I spoke to our client and enquired as to whether he intends to proceed with his conviction appeal in light of the advice that he received from David Grace Q.C.
Our client advised as follows:
•He wants an extension of time to file the conviction appeal.
I advised our client as follows:
•We asked for an extension of time in which to file the Appellant's Case to 30 September 2017 however our request was denied by a Registrar of the Court of Appeal and we were only granted an extension to 31 August 2017.
…
•David Grace QC has advised that there is no merit in the conviction appeal and that if he proceeds with the conviction appeal then he runs the risk of jeopardising his sentence appeal as he cannot say that he is remorseful for his offending behaviour.
The applicant did not challenge this. In cross‑examination, he admitted that, at some point, Ms McNamara told him that Mr Grace QC's view was that there was no merit in the conviction appeal. He agreed he was told that Mr Grace QC was concerned that, if they attempted to adduce affidavit evidence from Mr Mather on his conviction appeal, that would harm his sentence appeal.[46]
[46] Application ts 14 - 15.
Later the same day, 9 August 2017, Ms McNamara had a telephone conversation with Mr Rowson Snr. Ms McNamara made a file note of that conversation.[47] The file note included the following:[48]
[Mr Rowson Snr] advised as follows:
…
If there is a chance that [Mr Grace QC] can argue that [the applicant] should get 9 years or so then he will speak to [the applicant] and try to persuade him to dismiss the conviction appeal[.]
[47] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 16'.
[48] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 126.
Mr Tuohy's affidavit attaches further file notes recording conversations between lawyers of Equitas Lawyers and Mr Rowson Snr as to what the likely sentence would be if the appeal against sentence was upheld and the merits of the appeal against conviction.[49]
[49] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexures 'MHT 17' and 'MHT 18'.
Mr Tuohy deposes that Ms McNamara and Ms Byrne eventually met with Mr Mather in Acacia Prison on 17 August 2017. That night, Ms McNamara told Mr Rowson Snr what Mr Mather had said in the meeting.[50] The file note recorded that Mr Mather had said:[51]
[50] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 19'.
[51] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 133 - 134.
•He decided to stop at [the applicant's] house as he wanted to steal 2 ounces out before he delivered the drugs to the person that the drugs were intended for.
•He wasn't told to go to [the applicant's] house - he decided to go there of his own free will.
•What his lawyer said at the sentencing hearing about him being told to go to [the applicant's] house was wrong[.]
…
•[The applicant] had no idea he was coming over[.]
•He brought the MSN [sic] cutting agent with him in his backpack[.]
…
•He asked [the applicant] if he could use his back room.
…
•He went to the back room with [the applicant.]
•He opened up his backpack and removed one of the two bags of drugs.
•[The applicant] saw him remove the drugs from his bag.
…
•He told [the applicant] about his plan to take 2 ounces of methylamphetamine out and replace it with 2 ounces of cutting agent[.]
•He asked [the applicant] to help him as he didn't have a lot of time[.]
•[The applicant] helped him and they both went to the kitchen and got plastic bags, gloves, spoons, a kitchen bowl and a vacuum sealer[.]
…
•His intention was to use [the applicant's] vacuum sealer to reseal the bag of drugs that he had opened.
On 18 August 2017, Ms McNamara had a telephone conversation with the applicant. She made a file note of that conversation.[52]
[52] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 21'.
The file note records that Ms McNamara told the applicant what Mr Mather had said in the meeting, and that the applicant said:[53]
•When Mather first arrived [the applicant] didn't know that Mather had the drugs.
•He only found out about the drugs when Mather and him were in the back room.
•He didn't know what the quantity of drugs was that Mather had with him[.]
•Mather had asked him to help him steal 2 ounces out[.]
•He agreed to help Mather[.]
•It was all very rushed[.]
•He retrieved items from the kitchen however he cannot recall precisely what items he took into the back room and what items Mather took but a bowl was taken into the back room, gloves, sandwich bags
[53] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 140.
The file note then records:[54]
I advised our client as follows:
•It doesn't matter whether or not he knew the quantity of the drugs - he still knew that the drugs were there.
•I asked our client [if] he intended to discontinue his conviction appeal in light of his updated instructions.
Our client advised as follows:
•He will think about what he wants to do with his conviction appeal over the next few days and get back to me.
[54] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 140.
On 21 August 2017, Ms McNamara received a telephone call from Ms Bell (the applicant's then partner) and kept a file note of that conversation.[55] The file note included:[56]
I advised Nikeeta as follows:
…
•In light of [the applicant's] recent instructions in relation to having knowledge of the drugs that Mather brought with him to the property that day, [Mr Grace QC] has advised that he should discontinue the conviction appeal.
Nikeeta advised as follows:
•[The applicant] just needs a few more days to think about whether he wishes to discontinue the conviction appeal.
[55] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 22'.
[56] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 143.
On 23 August 2017, Ms McNamara received a telephone call from the applicant and kept a file note of that telephone conversation.[57]
[57] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 23'.
The file note records that the applicant said he did not understand why he had been charged when the drugs 'weren't even his'. Ms McNamara again told the applicant what Mr Mather had said (to the effect that the applicant had agreed to help Mr Mather steal two ounces of the drugs, and that the applicant had assisted by getting items from his kitchen to bring to the back room).[58]
[58] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 145.
The file note then records that the applicant said:[59]
•He didn't see even [sic] fucking see the drugs.
•He didn't know that they were even there.
…
•He has told me the truth - what Mather is saying is incorrect.
•And 'besides that' he doesn't see how him taking items from his kitchen makes him guilty.
•He didn't intend to sell or supply the drugs - Mather did - he was just helping him.
[59] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 146.
The file note records that Ms McNamara expressed concerns about the applicant's changing instructions and said that Equitas Lawyers could not alter Mr Mather's evidence.[60]
[60] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 146.
Later the same day, Ms McNamara and Mr Tuohy had a telephone conversation with Mr Rowson Snr. Ms McNamara kept a file note of that conversation.[61]
[61] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 24'.
The following day, 24 August 2017, Mr Grace QC, Ms McNamara, and Mr Tuohy had a telephone conversation with Mr Rowson Snr. Ms McNamara kept a file note of that telephone call.[62] The file note records that Mr Grace QC explained to Mr Rowson Snr that Mr Mather's evidence would be of no assistance in an appeal against conviction, as Mr Mather's evidence was to the effect that the applicant had aided him in the crime. It further records that Mr Grace QC advised Mr Rowson Snr that the applicant should tell the court that he was abandoning the conviction appeal.[63]
[62] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 25'.
[63] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 152, 155.

The circumstances of the filing of the discontinuance notice

At 10.45 am on 25 August 2017, Mr Tuohy emailed Mr Rowson Snr to tell him that he was going to telephone the applicant to 'seek his instructions concerning the discontinuance of the conviction appeal as we discussed in conference yesterday' (original emphasis).[64] Mr Tuohy deposes that, at around 10.50 am, he telephoned Acacia Prison to try to speak to the applicant, but was unable to do so. [65] This evidence was not challenged.
[64] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 26'.
[65] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 20.
Mr Tuohy deposes that, at around 4.20 pm on 28 August 2017, Ms Byrne received a phone call from the applicant from Acacia Prison, and that she kept a file note of this conversation (Byrne phone call).[66] The file note recorded:[67]
[The applicant] returned my call to Acacia Prison earlier today.
I advised him that we required his final instructions as to his Conviction appeal.
He advised that he wishes to discontinue the appeal against conviction.
…
I advised him that we would be lodging a discontinuance of the appeal against conviction on his instructions.
[66] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 28'.
[67] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 162.
As will be seen, the applicant denies giving those instructions.
The Department of Justice maintains a record system which records information about phone calls made by inmates at Acacia Prison to permitted numbers. Those records show that at '16:20:13 hours' on 28 August 2017, the applicant made a call to a number listed as being that of Ms McNamara.[68] That number is, in fact, the Equitas Lawyers' office number. The call lasted three minutes and 28 seconds. This evidence was, at least by the time of the hearing, not challenged.
[68] Affidavit of Josephine Dineen-Griffin, sworn 10 March 2025, 2 - 3.
Shortly after the Byrne phone call, at 4.36 pm on 28 August 2017, Mr Tuohy received an email from Ms Byrne forwarding him her file note. Mr Tuohy replied to that email at 5.00 pm, asking if she wanted him to prepare the 'Instructions to Lawyer notification' for the applicant to sign.[69] This evidence was not challenged.
[69] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 29'.
On 30 August 2017 at 1.54 pm, Ms McNamara sent an email to Mr Rowson Snr stating, among other things, 'please ask [the applicant] to … return the attached Authority to Discontinue Conviction Appeal as a matter of urgency' (original emphasis).[70] We will refer to this as the 'first authority'. This evidence was not challenged.
[70] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 30'.
Later that day, at 4.00 pm on 30 August 2017, Ms McNamara and Mr Tuohy had a telephone conversation with Mr Rowson Snr. Ms Clarissa Quek, another lawyer at Equitas Lawyers, was also present. Both Ms McNamara and Ms Quek kept file notes of that conversation.[71]
[71] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 31'.
Ms McNamara's file note relevantly records:[72]
N/R: Authority to Discontinue Conviction[.]
Not prepared to sign on basis of Nuhana.
Don't go Friday Visit with Nikeeta.
[72] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 170.
Ms Quek's file note relevantly records:[73]
N - This authority to discontinue. He's prepared to sign.
-will continue against conviction.
[73] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 174.

Mr Tuohy deposes that during the conversation, Mr Rowson Snr said that the applicant was unwilling to sign the first authority because it contained information concerning Mr Nuhana, however he would be willing to sign an authority that was amended to address his concerns. Mr Tuohy deposes that this explains the apparent differences in the file notes. He also says that he believes the note by Ms Quek stating 'will continue against conviction' is an error and should refer to the appeal against sentence, as that appeal was being continued. He notes that Ms Quek was a civil lawyer with no criminal practice and no previous involvement with this matter.[74] Mr Tuohy's evidence in this regard is referred to in more detail later in these reasons.
[74] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 21 - 23.
As will be seen, there is a dispute between the parties as to what was said in this conversation.
That evening, at 6.13 pm on 30 August 2017, Equitas Lawyers sent a letter by facsimile to the applicant at Acacia Prison:[75]
1.noting that the deadline for filing materials in the court was the next day;
2.confirming that Mr Grace QC had advised the applicant that he had no grounds for appealing against conviction;
3.confirming that during the course of his telephone conversation with Ms Byrne on 28 August 2017, he instructed Ms Byrne that he wished to discontinue his appeal against conviction and that Equitas Lawyers 'accordingly' were enclosing an 'Authority to Discontinue Conviction Appeal' (second authority) for his consideration;
4.asking the applicant to read it carefully and, if he agreed with its contents, asking him to sign and return it as a matter of urgency;
5.advising that Equitas Lawyers did not propose to do anything further in relation to the applicant's appeal against conviction;
6.confirming that, in the circumstances, Equitas Lawyers would advise the Court of Appeal that there was no further material that could be filed in relation to the applicant's conviction appeal; and,
7.stating that Equitas Lawyers looked forward to receiving the signed authority on or before 31 August 2017.
[75] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 32'.
The applicant does not deny that the facsimile was sent, but said he could not remember when he received it.[76] The applicant claimed that he was not aware that Equitas Lawyers were going to discontinue the appeal until he received a letter from them dated 20 September 2017. It was put to him that he had received the letter dated 30 August 2017 (which attached the second authority) before 20 September 2017. He said he did not think he had.[77] The applicant said that he usually received mail in prison about a week after it had been sent.[78]
[76] Application ts 23.
[77] Application ts 27.
[78] Application ts 36 - 37.
At 6.25 pm on 30 August 2017, Ms McNamara sent to Mr Rowson Snr by email a copy of the letter sent by facsimile to the applicant at 6.13 pm that evening, including the second authority.[79] This evidence was not challenged.
[79] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 33'.
At 11.22 am on 31 August 2017, as the applicant had not returned a signed copy of the second authority to Equitas Lawyers, Ms McNamara sent an email to Mr Rowson Snr that, among other things, asked, if the applicant phoned Mr Rowson Snr that day, he remind the applicant to return a signed copy of the second authority.[80] This evidence was not challenged.
[80] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 34'.
At 2.26 pm on 31 August 2017, Ms McNamara made a telephone call to Acacia Prison and left a message for the applicant to urgently return her call regarding the second authority that was provided to him the day before. That telephone call was recorded on a file note prepared by Ms McNamara.[81] This evidence was not challenged.
[81] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 35'.
At 3.11 pm on 31 August 2017, Equitas Lawyers sent a letter to this court's registry confirming that the applicant had instructed Equitas Lawyers to discontinue his appeal against conviction and attaching the applicant's notice of discontinuance.[82] Equitas Lawyers sent a copy of the letter to the Office of the Director of Public Prosecutions (DPP).[83] This evidence was not challenged.
[82] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 36'.
[83] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 37'.

The applicant's evidence

Christopher Rowson

The applicant agreed that he understood that discontinuing an appeal put an end to the appeal.[84]
[84] Application ts 11.
The applicant agreed that Equitas Lawyers had kept him updated on their dealings with Mr Mather. He said that Equitas Lawyers initially had trouble contacting Mr Mather but, when they did, Mr Mather gave them an affidavit. The applicant agreed that he believed some of Mr Mather's affidavit was incorrect. The applicant agreed that Mr Grace QC had advised him that Mr Mather's affidavit was not helpful to his appeal against conviction. However, the applicant said that that was only because it was not signed.[85]
[85] Application ts 11, 13 - 14.
The applicant admitted that, at some point, Ms McNamara told him that Mr Grace QC's view was that there was no merit in the conviction appeal. He agreed he was told that Mr Grace QC was concerned that, if they attempted to adduce affidavit evidence from Mr Mather on his conviction appeal, that would harm his sentence appeal.[86]
[86] Application ts 14 - 15.
The applicant agreed that he knew the deadline for filing the applicant's materials in the conviction appeal was the end of August 2017.[87]
[87] Application ts 15.
The applicant said that he did not want to discontinue the conviction appeal and did not give instructions to discontinue it. He said that he had had a phone call with Ms Byrne on 28 August 2017 but that he had said in that phone call that he did not want to discontinue the appeal. He said that he gave a positive instruction that he did not want to discontinue it.[88]
[88] Application ts 15 - 16.
It was put to the applicant that he had said in his affidavit that he did not remember that phone call. He said that what he meant was that he did not remember a phone call in which he had said that he wanted to discontinue the conviction appeal, not that he did not remember the phone call itself.[89]
[89] Application ts 16.
The applicant annexed to his affidavit a letter dated 20 September 2017, in which Equitas Lawyers had written 'you clearly instructed us to abandon [the conviction] appeal in your telephone conversation with us on 28 August 2017'.[90]
[90] Affidavit of Christopher Neil Rowson, sworn 14 August 2024, 11.
The applicant deposed:[91]
[14]It is my understanding, as per a copy of correspondence from Equitas Lawyers that was addressed to me at Acacia Prison on 20 September 2017 (annexed and marked as X1), in which there is a reference to a conversation between me and a solicitor of that firm on 28 August 2017. [sic]
[14] [sic]I do not recall such a phone call or any purported conversation on this day with Equitas Lawyers.
[15]It is my understanding from the abovementioned annexure X1 that Equitas Lawyers were of the impression that on the 28 August 2017 they had received instructions from me, to abandon and withdraw my conviction appeal, and to only proceed with the appeal on sentence.
[16]I have no knowledge or awareness of any such instructions ever being given by me, whether expressed or implicitly.
[17]I categorically deny ever giving any such instructions to Equitas Lawyers.
(original emphasis)
[91] Affidavit of Christopher Neil Rowson, sworn 14 August 2024, 3 - 4.
In our view, the applicant was asserting in the second paragraph 14 that he had not spoken to Ms Byrne (or anyone from Equitas Lawyers) on 28 August 2017.
We note that, at the time the applicant swore his affidavit, he had been told by his current solicitors that they could not obtain any information about phone call records. As at the time he swore his affidavit, the applicant believed that there were no records that could verify whether or not he had had a conversation with Ms Byrne on 28 August 2017.[92] We infer that the applicant denied the conversation in his affidavit because he believed, at that time, there were no documents that could prove that the conversation occurred.
[92] Application ts 31.
In cross‑examination, the applicant agreed that, shortly after the Byrne phone call, he had received from Equitas Lawyers a document titled 'An Authority to Discontinue'.[93] He said that this was the second such document he had received from Equitas Lawyers. He asserted that the first one had been sent prior to the Byrne phone call. The applicant was asked whether, given his evidence that he had received the first authority document prior to the Byrne phone call, he had asked Ms Byrne why the authority document had been sent to him. He said he did not ask that because he had already rejected it before the phone call.[94]
[93] Application ts 17.
[94] Application ts 18 - 21.
The applicant agreed that the first authority document contained information about his co‑offender, Mr Nuhana, that he did not want to be included. He agreed that was one of the reasons that he did not want to sign the authority, but said that he also did not want to discontinue the conviction appeal.[95]
[95] Application ts 19 - 20.
The applicant was shown a copy of the letter dated 30 August 2017, which attached the second authority. He agreed it was sent to him, but said he could not remember when he received it.[96]
[96] Application ts 23.
The applicant claimed that he was not aware that Equitas Lawyers were going to discontinue the appeal until he received a letter from them dated 20 September 2017. It was put to him that he had received the letter dated 30 August 2017, before 20 September 2017. He said he did not think he had.[97]
[97] Application ts 27.
The applicant agreed that he knew his sentence appeal remained on foot. He agreed that, by 5 October 2017, he had instructed Seamus Rafferty (as his Honour then was) to act for him in the sentence appeal.[98]
[98] Application ts 28.
The applicant agreed that he attended the hearing of his sentence appeal on 11 April 2018. He agreed that this was the same day that the conviction appeal of his co‑offender Mr Nuhana was allowed on the spot. He agreed that, at that time, he knew his own conviction appeal had been discontinued. He was asked whether he raised it with his then counsel, Philip Urquhart (as his Honour then was). He said, 'I barely got to talk to him'.[99]
[99] Application ts 28 - 29.
The applicant was asked if he had ever raised the issue with his then solicitor, Mr Rafferty. The applicant said he believed that he had told Mr Rafferty that the discontinuance notice had been filed contrary to his instructions. He did not mention in his affidavit discussing his conviction appeal with Mr Rafferty.[100]
[100] Application ts 29 - 30.
The applicant said he did not think that he knew that his trial lawyer Mr Dobson had passed away at the time that he approached his current lawyers. He agreed that, after the conviction appeal was discontinued in August 2017, the first time he had approached lawyers was in December 2021.[101] He agreed that he had not instructed anyone to do anything about the conviction appeal until December 2021.[102] He agreed that, after his current lawyers had made inquiries, he became aware that Mr Dobson's trial file had not been retained in Mr Dobson's records.[103]
[101] Application ts 30 - 31.
[102] Application ts 30, 34.
[103] Application ts 31.
In re‑examination, the applicant said he could not remember seeing the first authority but knew that his father was concerned about it.[104] He was asked about the fax sent to him at 6.13 pm on 30 August 2017,[105] in which Equitas Lawyers confirmed that, in the course of his conversation with Ms Byrne on 28 August 2017, the applicant had instructed Ms Byrne that he wished to discontinue his conviction appeal. The applicant said that he usually received mail in prison about a week after it had been sent.[106] He said that, after he got that fax, he spoke to his father, and said, '[W]e talked about how I said that I didn't want to discontinue it'.[107]
[104] Application ts 35.
[105] Reproduced in affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 32'.
[106] Application ts 36.
[107] Application ts 36 - 37.
The applicant said that his father found his current solicitors, and that it was his father who was looking for lawyers to assist him 'in this matter'.[108]
[108] Application ts 37.
The applicant said that, after receiving the letter from Equitas Lawyers saying that the conviction appeal had been discontinued, he spoke to his father about it. He said that they did not do anything about it at that time because they did not think there was anything that they could do.[109]
[109] Application ts 38.
In our view, the applicant was not a credible witness.
First, in his oral evidence, the applicant claimed that he told Ms Byrne in the phone call on 28 August 2017 that he wanted to continue the conviction appeal. In his affidavit, when he believed that records showing phone calls could not be obtained, he denied speaking to her on that date. His change in position appeared to be an expedient reconstruction. His explanation for the inconsistency between his affidavit and his oral evidence was wholly unconvincing.
Secondly, if the applicant did not give instructions to discontinue the conviction appeal in the Byrne phone call, it is implausible that he would not have contacted Equitas Lawyers to tell them that he wished to proceed with that appeal when he received the letter of 30 August 2017. Though he suggests there may have been a delay in delivery of that letter, he does not deny receiving it. Equitas Lawyers continued to act for the applicant on the sentence appeal until 20 September 2017.
Thirdly, if the applicant did not give instructions to discontinue the conviction appeal in the Byrne phone call, it is implausible that he would not have told counsel acting for him in his sentence appeal or the solicitors who took over from Equitas Lawyers after they ceased to act. It can reasonably be inferred that he did not inform his counsel or solicitor as there is no mention of his doing so in his affidavit.
Fourthly, in his oral evidence the applicant claimed to have told Mr Rafferty that the conviction appeal had been discontinued without his authority. This was a claim made for the first time in his oral evidence in cross‑examination. It was not mentioned in his affidavit. This claim bore the hallmarks of a recent construction. As noted in the third point, had the applicant told Mr Rafferty that he had not given instructions to discontinue the conviction appeal, it is implausible that he would not have included that in his affidavit.
Fifthly, it is implausible that the applicant would do nothing to reinstate his appeal against conviction until 2021 if he honestly believed that it had been discontinued without his authority. He and his father had shown themselves willing to consult with lawyers, and to seek second opinions, on other issues relating to the appeals. It is unlikely that they would meekly accept that there was nothing they could do and the applicant's claim in that regard was unconvincing.
Sixthly, the applicant's evidence is inconsistent with the documentary evidence. If the applicant did not give instructions to discontinue the conviction appeal in the Byrne phone call, it is implausible that Equitas Lawyers would prepare an authority document and send it to him, then prepare an amended authority document and send that to him, pursue him and his father to get the applicant to sign the authority before the deadline, and send letters confirming that the applicant had given instructions to discontinue the conviction appeal.

Neil Rowson

Mr Rowson Snr deposed:[110]
[18]At no point did [the applicant] seek to discontinue his conviction appeal, and this is confirmed by the written instructions provided to Equitas legal being unsigned.
[19]On 20 September 2017, we had received correspondence from Equitas legal outlining their notice of ceasing to Act. This came as a surprise to us as at no time did [the applicant] indicate that he would like to discontinue his appeal.
[110] Affidavit of Neil Rowson, filed 11 September 2024, 3.
In his oral evidence‑in‑chief, Mr Rowson Snr said that he had received by email each of the two authority documents. He said that 'it was clearly pointed out' to Equitas Lawyers that his son did not want to discontinue the conviction appeal. He said:[111]
[E]verything happened all at once. We - we - we had these two discontinuations, and we also had Equitas Lawyers who were still pursuing affidavits. We didn't know what was going on. We were so confused. There was [sic] emails coming in right, left, and centre, and the file notes and everything. We really did not understand, but what I do know and what I do remember is [the applicant] at no stage wanted his conviction appeal to be discontinued.
[111] Application ts 41.
Mr Rowson Snr said he told Ms McNamara, after receiving each of the two authority documents, that his son did not want to discontinue the conviction appeal. In relation to the second authority document, he said he discussed it with his son and then Equitas Lawyers within a day of receiving it.[112]
[112] Application ts 42 - 43.
Mr Rowson Snr said that, when he found out that the conviction appeal had been discontinued, he tried to get advice as to what had happened and whether that was final. He said that he was told that it was final; that his son had lost his chance to appeal against his conviction. He said that he had obtained advice from Michael Tudori, Mr Rafferty, and Feddy Kak, the last of whom was a solicitor at the firm of his current solicitors. Mr Rowson Snr said that he sought that advice straight after Equitas Lawyers said they were no longer acting for his son. He said this was before the appeal against sentence was heard. Mr Rowson Snr said he spoke to another lawyer, but that the lawyer took too long, so they 'moved on'.[113]
[113] Application ts 44.
Mr Rowson Snr was then reminded, in examination‑in‑chief, of what he had said in his affidavit about the lawyers he had approached.[114]
[114] Application ts 44 - 45.
In Mr Rowson Snr's affidavit, he had deposed that they had engaged with Legal Aid to reopen the conviction appeal, and attached a letter from Legal Aid dated 19 February 2018. The letter said that legal aid had been granted for 'advice and investigation into the likelihood of the Court of Appeal granting you leave to appeal against your conviction and sentence (if appropriate)'.[115]
[115] Affidavit of Neil Rowson, filed 11 September 2024, 3 [22], 5.
Mr Rowson Snr deposed that Andrew Robson from Legal Aid had advised them that the process for an appeal would take upwards of 10 months. He deposed that '[u]pon constant communication over the duration he was retained in the matter, we had seen no progress and as such sought new representation'.[116] In his oral evidence, he said that Mr Robson advised that Legal Aid could not take on appeal matters, and they would have to engage a barrister themselves.[117]
[116] Affidavit of Neil Rowson, filed 11 September 2024, 3 [24].
[117] Application ts 46.
Mr Rowson Snr deposed that in 2019 they had engaged Clint Hampson. He deposed that Mr Hampson gave them 'final correspondence' in July 2020, 'and from then we sought to pursue other avenues as it was not proceeding fast enough'.[118]
[118] Affidavit of Neil Rowson, filed 11 September 2024, 4 [25] - [26].

Mr Rowson Snr deposed that in early 2021 'we had engaged with' his son's current solicitors to pursue an appeal through the High Court of Australia. He deposed that the COVID‑19 pandemic impeded progress.[119] Contrary to this evidence, Mr Mridha deposed that the applicant's current solicitors have been engaged since approximately December 2021.[120]
[119] Affidavit of Neil Rowson, filed 11 September 2024, 4 [27].
[120] Affidavit of Wafik Mridha, filed 11 September 2024, 2 [4].
Mr Rowson Snr said he did not know if the proposed appeal to the High Court related to the sentence or the conviction. He was asked whether, at that time, his son was still concerned about the fact that his conviction appeal had been discontinued. He said, 'We were, but I think we had moved on from there'.[121]
[121] Application ts 46.
Mr Rowson Snr said that in 2021 his son's current solicitors advised they should file an application to set aside the discontinuance notice.[122]
[122] Application ts 46 - 47.
In cross‑examination, Mr Rowson Snr was asked about the source of the Legal Aid letter he had attached to his affidavit. He said it would have come from the records he had sent to his son's current solicitors. He said there were about 20 boxes of materials.[123]
[123] Application ts 47 - 48.
In cross‑examination, it was put to Mr Rowson Snr that Mr Grace QC did not assess the prospects of success on their conviction appeal as high. Mr Rowson Snr said, 'I wouldn't say that from the beginning'. He said Mr Grace QC's advice was to appeal both the sentence and the conviction.[124]
[124] Application ts 50.
Mr Rowson Snr's responses to the questions that followed indicated that he was acting as an advocate for his son's cause:[125]
[125] Application ts 50 - 52.
BEGGS, MS: At some point in time, in the course of a meeting or a phone call, or similar, did Mr Grace convey to you the opinion that there's not very strong prospects on the conviction appeal, but the prospects of the sentence appeal would be approved - improved, sorry - if there was no conviction appeal on foot?‑‑‑He also said that ‑ ‑ ‑
MAZZA JA: Well, just answer the question, please, Mr Rowson. If you want it to be asked to you again, Ms Beggs will ask it, but just concentrate on the question?‑‑‑Can you just say it again, please.
BEGGS, MS: Did Mr Grace convey to you advice along the lines of that the prospects of success on the sentence appeal would be improved if there was no conviction appeal on foot?‑‑‑I don't understand the question. Sorry.
Did Mr Grace say to you that [the applicant's] chances of having his sentence reduced would be improved if he wasn't also appealing his conviction?‑‑‑I'm sorry, I don't know how to answer that. You've worded it in a way that I can't answer.
Did Mr Grace suggest to you that the success of one appeal was dependent on the other appeal?
MAZZA JA: I'm not sure that that's - just break it down. First, ask what advice, if anything, was given about the chances of success on the conviction appeal, sentence appeal, and then you may be able to link them that way.
BEGGS, MS: Okay. Thank you, your Honour. Mr Rowson, did Mr Grace - or what was the advice that Mr Grace gave you in relation to the prospects of success for the conviction appeal?‑‑‑He said that the conviction appeal depended on the fact that the sentence appeal wouldn't be so strong, because you are not showing mercy on the - on the sentence appeal.
Did he suggest to you that in respect of the sentence appeal, it would be difficult for [the applicant] to say he was remorseful if he was still appealing his conviction?‑‑‑You're putting words in my mouth. I've just ‑ ‑ ‑
I'm asking if you agree ‑ ‑ ‑?‑‑‑I've just answered. No, I don't.
I'm asking if you agree with the proposition or not?‑‑‑No, I don't.
So as far as your evidence today is concerned, Mr Grace did not give advice to that effect?‑‑‑I wasn't dealing with Mr Grace. I was dealing with Tracy McNamara, and you're asking me ‑ ‑ ‑
HALL JA: This is at the meeting with Mr Grace. That's the questions you're being asked?‑‑‑Now - okay. David Grace, I spent 10 minutes - he was waiting for a taxi to go to the airport. He never looked me in the eye, he never spoke to me ‑ ‑ ‑
MAZZA JA: Mr Rowson, what's important is not to make statements, but to listen to questions and answer questions, and the last few questions which have been put to you, you haven't answered the question. So focus on the question, and then just answer the question. Go on, Ms Beggs.
BEGGS, MS: Now, did Mr Grace at some point - sorry. Did you convey to Equitas Lawyers at some point that Mr Mather would be willing to provide evidence to support [the applicant's] conviction appeal?‑‑‑Yes.
And did you ask Equitas Lawyers to act on that information?‑‑‑Yes.
And did that involve Equitas Legal - or Lawyers, sorry - seeking to obtain affidavit material from Mr Mather?‑‑‑Yes.
Now, did Mr Grace express via - or was it conveyed to you that Mr Grace had an opinion, or had given advice to the effect that Mr Mather's evidence would not assist in the conviction appeal?‑‑‑As it stood, but he - I don't know what I'm meant to say here, because he ‑ ‑ ‑
MAZZA JA: See, Mr Rowson, you're having difficulty because I suspect what you want to do is make statements and tell us about things that you think we should know about, but the really important thing in this process - and it's not a natural process for some people, but the really important thing is to just listen to the question and just answer the question. Bear in mind that Mr Bevilacqua can re‑examine you and ask you to clarify any answers that you give?‑‑‑I didn't know that.
All right. Well, now that you do know it, just focus on the questions.
Mr Rowson Snr then admitted that he had been told that Mr Grace QC's advice was that Mr Mather's affidavit would not help with the conviction appeal. He said he had been advised that a discontinuance notice was final. He said, in effect, that the advice was that only one of the appeals could be pursued.[126]
[126] Application ts 53.
Mr Rowson Snr agreed he knew that a discontinuance notice was final.[127]
[127] Application ts 53 - 54.
Mr Rowson Snr agreed he knew there was a deadline for the filing of materials in the court relating to the conviction appeal, but said he was not sure what the date was. This answer was sought to be clarified in the following exchange:[128]
[128] Application ts 54 - 55.
ARCHER JA: Just to clarify one question. When you say you don't know what the deadline was, did you know at the time, but you now can't remember, or did you not know at the time either?‑‑‑This was nine years ago. I honestly can't remember any of this. I'm just ‑ ‑ ‑
So you can't remember whether or not ‑ ‑ ‑?‑‑‑I'm just agreeing with - I've been told to agree, and I'm just agreeing at the moment.
MAZZA JA: Well, Mr Rowson, you have not been told to agree by anybody, you are free to disagree, but the gist of the response to Justice Archer is that it's now nine years since these events, and you don't have a recollection of them, or some of them, or at least this last point that was made by Ms Beggs?‑‑‑I have got no idea on the dates that are being mentioned at all.
Mr Rowson Snr denied that he told Equitas Lawyers that, if his son could get the same sentence as Mr Nuhana, his son would discontinue his conviction appeal. He agreed that he had discussed with Equitas Lawyers the disparity between the sentence imposed on his son and the sentence imposed on his co‑offender, Mr Nuhana. He denied that he had said it was unfair.[129]
[129] Application ts 55 - 56.
Mr Rowson Snr agreed he was not happy with Mr Grace QC.[130]
[130] Application ts 56.
Mr Rowson Snr was taken to an email sent to him by Equitas Lawyers on 30 August 2017 at 1.54 pm.[131] That email said that it attached a draft reamended affidavit of Mr Mather and an authority to discontinue the conviction appeal. Mr Rowson Snr denied telling Ms McNamara that his son was not willing to sign the first authority document because it contained reference to matters concerning Mr Nuhana.[132]
[131] Reproduced in affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 30'.
[132] Application ts 57, 59.
Mr Rowson Snr was taken to an email sent to him by Equitas Lawyers later that day, at 6.25 pm.[133] That email attached an authority to discontinue the conviction appeal and a copy of a letter to his son. In the letter to his son, Equitas Lawyers wrote, among other things:[134]
3.We confirm that Mr David Grace Q.C. of Counsel has previously advised you that there are no grounds for appealing against your conviction.
4.We further confirm that during the course of your telephone conversation with our Ms Byrne on 28 August 2017, you instructed our Ms Byrne that you wish to discontinue your appeal against conviction which was filed in the Court of Appeal Registry of the Supreme Court of Western Australia on 28 March 2017. Accordingly, please find enclosed herewith an Authority to Discontinue Conviction Appeal, for your consideration. (original emphasis)
[133] Reproduced in affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 33'.
[134] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 181.
Mr Rowson Snr denied that Mr Grace QC had given that advice.[135]
[135] Application ts 61.
Mr Rowson Snr said that his son had told him that he (his son) had spoken to Ms Byrne on 28 August 2017 and had discussed discontinuing his conviction appeal. Mr Rowson Snr said that his son had told him that he had not instructed Ms Byrne to discontinue his conviction appeal.[136]
[136] Application ts 61.
Mr Rowson Snr was asked whether what was written in par 4 of that letter had taken him by surprise. He said:[137]
I'd already discussed it. I don't read every email that comes my way like that. I mean, I did - I focused more on the authority to discontinue, and [the applicant] had already told me that he didn't want to do that.
[137] Application ts 62.
Mr Rowson Snr agreed that his evidence was that he understood, prior to receiving the second authority document, that his son did not want to discontinue the conviction appeal. He was asked why, in that case, the first authority document needed to be amended. He said, 'I have no idea'.[138]
[138] Application ts 62 - 63.
Mr Rowson Snr said that he found out that the conviction appeal had been discontinued a month or two before the hearing of the sentence appeal.[139]
[139] Application ts 64.
Mr Rowson Snr denied that he had known that his son's trial counsel, Terry Dobson, had died at the time that he approached his son's current solicitors. He said that he was 'pretty sure' that he approached those solicitors before Mr Dobson died. It was put to him that it was after Mr Dobson had died. He said he could not recall.[140] As noted earlier, Mr Grace QC had told the applicant on 22 June 2017 that, if they ran a conviction appeal based on him not giving evidence, the court would direct that an affidavit be provided by Mr Dobson. Mr Grace QC told the applicant that Mr Dobson would probably say that the applicant spent half of the trial asleep in the dock (so the applicant could not have been called to give evidence in that state) and that he (Mr Dobson) had a lengthy conversation with the applicant about not giving evidence. Mr Dobson was alive at the time Mr Grace QC gave that advice.
[140] Application ts 64 - 65.
Mr Rowson Snr denied that Mr Grace QC had said there were no prospects of success in relation to the conviction appeal.[141]
[141] Application ts 65.
In re‑examination, Mr Rowson Snr said that he and his son were told that, if they carried on with the conviction appeal, it would not look good on the sentence appeal and that they should not pursue both appeals. Mr Rowson Snr said that he thought that it was discussed at the time that the best option was the conviction appeal, because Mr Grace QC had said that the best he could do on a sentence appeal was to get a reduction of one year.[142]
[142] Application ts 66.
Mr Rowson Snr said that he was told by Ms McNamara that Mr Grace QC's advice was that the conviction appeal had merit. He said he did not ask Mr Grace QC about that because 'there was virtually no conversation with him'.[143]
[143] Application ts 67.
In our view, Mr Rowson Snr was not a credible witness.
First, as the exchange extracted above at [120] shows, he was seeking to act as an advocate for his son's position, rather than simply answering questions. He was combative and wilfully obtuse. He tended to make statements or assertions, rather than giving an account of the facts.
That was also demonstrated by his denial of matters which even his son admitted. One example was his denial that Mr Grace QC's view was that there was no merit in the conviction appeal. Another example was his denial that he told Ms McNamara that his son was not willing to sign the first authority document because it contained reference to matters concerning Mr Nuhana. When he was asked why the first authority document needed to be amended, he said, 'I have no idea'.[144]
[144] Application ts 63.
It was further demonstrated by statements of Mr Rowson Snr that disparaged counsel and solicitors who acted for his son, and that were often non‑responsive to the question he had been asked. For example, he said that he met Mr Grace QC when Mr Grace QC came to Perth from Melbourne. He said that Mr Grace QC 'spared [him] 10 minutes before [a] taxi arrived to take him back to the airport'.[145] Later, he said 'David Grace, I spent 10 minutes - he was waiting for a taxi to go to the airport. He never looked me in the eye, he never spoke to me'.[146] The file note records that this meeting lasted over two hours.[147]
[145] Application ts 43.
[146] Application ts 52.
[147] See affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 6'.
Secondly, if the applicant did not give instructions to discontinue the conviction appeal in the Byrne phone call, Mr Rowson Snr's affidavit provides little explanation for the delay in bringing this application. The explanations that were advanced in oral evidence, in particular the suggestion that a number of other solicitors were consulted, were unsupported by any contemporaneous records (other than the letter from Legal Aid dated 19 February 2018 - a letter that adds nothing to the contention that the notice of discontinuance was filed without authority).
Thirdly, Mr Rowson Snr said that he had 20 boxes of material that he had provided to his son's solicitors. That material must have included much of the file documentation that has been relied on by Mr Tuohy, and yet Mr Rowson Snr attached to his affidavit a single document - the letter from Legal Aid dated 19 February 2018. It is impossible to avoid a conclusion that Mr Rowson Snr has been highly selective in the material he has chosen to advance in evidence.
Fourthly, in his oral evidence, Mr Rowson Snr said that he had received advice in relation to the conviction appeal from Mr Tudori, Mr Rafferty, and Mr Kak, the last of whom was a solicitor at the firm of the applicant's current solicitors. Mr Rowson Snr said that he sought that advice straight after Equitas Lawyers said they were no longer acting for his son. He said this was before the appeal against sentence was heard. None of this is referred to in his affidavit. It is highly unlikely that he would not have included this in his affidavit if it were true.

Fifthly, and similarly to the sixth point in relation to the applicant's credibility above at [106], Mr Rowson Snr's evidence is inconsistent with the documentary evidence. In particular, his claims that Mr Grace QC did not advise that the conviction appeal had no prospect of success and that he told Ms McNamara that the applicant did not want to discontinue the conviction appeal, stand in stark contrast with the contemporaneous file notes, emails and letters from the Equitas Lawyers' file.

Nikeeta Bell

Ms Bell's affidavit refers to the trial and her understanding that she and the applicant would be called to give evidence by Mr Dobson. She provides no information in her affidavit regarding the filing of the notice of discontinuance.
In cross-examination, Ms Bell agreed that she had spoken briefly to Ms McNamara. However, she could not recall the content of that conversation.[148]
[148] Application ts 71.

The respondent's evidence

Martin Hugh Tuohy

Mr Tuohy gave evidence about the telephone conversation between Mr Rowson Snr, Ms McNamara and himself on 30 August 2017. He gave evidence about what he remembered, and how he interpreted the file notes kept by Ms McNamara and Ms Quek about that conversation.[149]
[149] See affidavit of Martin Hugh Tuohy, sworn 19 November 2024, annexure 'MHT 31'.
Mr Tuohy deposed:[150]
74.I recall that, during that conversation:
74.1.Mr Rowson Snr informed Ms McNamara and me that the [applicant] was unwilling to sign the First Authority because of the information concerning Nuhana in the document;
74.2.Mr Rowson Snr further confirmed that the [applicant] would be willing to sign a similar authority which had been amended and simplified to address the [applicant's] concerns.
[150] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 21.
Mr Tuohy deposed:[151]
[151] Affidavit of Martin Hugh Tuohy, sworn 19 November 2024, 22 - 23.
75.Ms McNamara's file note of this conversation is slightly different from Ms Quek's file note. I believe that both of their file notes can be reconciled.
76.Ms McNamara's file note of this conversation reads, at the relevant portion:
N/R: Authority to Discontinue Conviction
Not prepared to sign on basis of Nuhana
77.I understand that in Ms McNamara's file note 'N/R' refers to Mr Rowson Snr.
78.I believe that Ms McNamara's file note that Mr Rowson Snr noted that the [applicant] was not prepared to sign the 'Authority to Discontinue Conviction' was a reference to the First Authority because of the reason provided, being the inclusion of information concerning Nuhana, is:
78.1.consistent with my recollection of that conversation; and
78.2.only applicable to the First Authority because (as will be explained below) information concerning Nuhana was later removed.
79.Ms Quek's file note of this conversation reads, at the relevant portion:
N - This authority to discontinue he's prepared to sign. Will continue against conviction.
(emphasis added)
80.I understand that in Ms Quek's file note, 'MT' refers to me and 'N' refers to Mr Rowson Snr.
81.I believe that Ms Quek's file note that Mr Rowson Snr noted that the [applicant] was prepared to sign 'this authority to discontinue' was a reference to a prospective amended authority which would be simplified to remove information concerning Nuhana, because:
81.1.this is consistent with my recollection of that conversation; and
81.2.as is explained further below, Equitas Lawyers would later send an amended authority by facsimile to the [applicant] on the basis of such an understanding.
82.Further, I believe that Ms Quek's file note that Mr Rowson Snr said 'will continue against conviction' was made in error and should correctly have reflected Mr Rowson Snr saying that the [applicant] would continue in his appeal against sentence.
83.This is because:
83.1.Ms Quek's note‑taking during this telephone call was her first involvement in the [applicant's] matter, and Ms Quek was and is a civil lawyer with no criminal practice, so it is understandable that she may have been confused;
83.2.I recall Mr Rowson Snr saying at that point in the conversation that the [applicant] would continue his appeal on sentence; and
83.3.the only authority to discontinue that was ever prepared or discussed in the [applicant's] matter was that in relation to the appeal on conviction, so:
83.3.1.any reference by Mr Rowson Snr to an authority to discontinue would be in relation to the conviction appeal; and
83.3.2.it would be illogical for Mr Rowson Snr to have said that the [applicant] was prepared to sign an authority to discontinue the conviction appeal but immediately afterward say that the [applicant] wanted to have the conviction appeal continue.
(original emphasis)

In his oral evidence, Mr Tuohy said that, after he read the file notes, he remembered Mr Rowson Snr giving instructions to send an abbreviated authority to discontinue because his son would not sign the 'more fulsome' authority.[152] Mr Tuohy said he believed that, at the time of this telephone call, Equitas Lawyers had stopped receiving any instructions from the applicant and he was not returning phone calls.[153] Mr Tuohy said that Ms Quek's file note was plainly inaccurate, because there was never a discussion about discontinuing the sentence appeal. Mr Tuohy said that, in this telephone call with Mr Rowson Snr, he confirmed that his son was willing to sign the amended authority document.[154]
[152] Application ts 88 - 89.
[153] Application ts 89.
[154] Application ts 91.
When Mr Tuohy was asked in cross‑examination why the discontinuance notice had been filed when the applicant had not signed an authority, he said that Equitas Lawyers already had instructions from the applicant to discontinue the conviction appeal, and that had been confirmed by Mr Rowson Snr. The obtaining of a signed authority was 'just making sure that we had all the necessary paperwork on the file'. When asked what would have happened if the notice of discontinuance had not been filed on 31 August 2017, Mr Tuohy replied that his firm was not in the habit of breaching court orders, plainly referring to the fact that the appellant's case was due to be filed on that date.[155]
[155] Application ts 93, 96.
We accept Mr Tuohy's evidence. His credibility was not challenged, and the cross‑examination did not cause us to doubt his reliability. On the contrary, his evidence was credible, coherent, and consistent with the documentary evidence. He was demonstrably trying to accurately answer all questions asked of him. He was not defensive, nor advocating for a particular position.

The applicant's submissions

The applicant submitted that the court should accept that he did not give instructions to discontinue the conviction appeal, for two reasons. First, the instructions were allegedly given to Ms Byrne, and she had not been called to give evidence. The applicant had given evidence that he gave no such instructions. Secondly, there was no authority to discontinue the conviction appeal until Equitas Lawyers received confirmation from the applicant that he was content with the form of the authority document.[156]
[156] Application ts 99 - 100.
In relation to the second point, counsel for the applicant agreed that an authority to discontinue an appeal could be given orally. However, counsel submitted that, once Equitas Lawyers were told that the applicant would not sign the first authority document, any oral instructions fell away and there was then a 'conditional situation'.[157]
[157] Application ts 100.
Counsel for the applicant accepted that the question needed to be considered in the context that Mr Grace QC had told the applicant that there were no prospects of winning the appeal against conviction. He said, however, that Mr Rowson Snr and the applicant had indicated they were not receptive to that advice. He submitted that, further, Mr Percy QC had said there was some merit in a conviction appeal. The applicant accepted, however, that both Mr Percy QC and Mr Grace QC had told Mr Rowson Snr and the applicant that the applicant would be convicted on any retrial.[158]
[158] Application ts 101 - 102.
In relation to the discretionary issue, counsel for the applicant accepted that the evidence adduced by him did not identify what the witnesses would say in a retrial, other than in the broadest terms. He further accepted that the evidence adduced did not identify what the defence would be. Counsel said that the defence would be to the effect that the applicant had lacked knowledge of the drugs, but said that he did 'not propose to take that any further'.[159]
[159] Application ts 105 - 106.

The respondent's submissions

The State submitted that the evidence established the applicant understood what a notice of discontinuance was and knew that it was final.[160]
[160] Application ts 106.
The State submitted that the documentary evidence was consistent with an instruction to discontinue having been given, and inconsistent with it not having been given. The State pointed out that there would be no reason to prepare an authority to discontinue the conviction appeal if the client had not indicated that he wanted to discontinue the conviction appeal. Further, there was no reason that the applicant would require the authority document to be amended if he was not going to sign an authority to discontinue the conviction appeal. Further, there would be no reason to amend the authority document if the client had said he was not going to sign it and that he did not want to discontinue the conviction appeal.[161]
[161] Application ts 107 - 108.
The State noted that Equitas Lawyers continued to act for the applicant in relation to the sentence appeal for some weeks after the notice of discontinuance had been filed, but neither the applicant nor his father had raised any query about the notice of discontinuance. The State pointed to the documentary evidence of correspondence sent to Mr Rowson Snr and the applicant confirming the oral instructions and submitted that it was implausible that they would not have responded at the time by saying that those instructions were not given.[162]
[162] Application ts 107.
In relation to the discretion, the State submitted there was no evidence to indicate that there was any merit in a defence that would be run in a retrial. The State also pointed out that it would suffer extreme prejudice if the notice of discontinuance was permitted to be withdrawn. This is because a number of the proposed grounds of appeal could not be addressed by reference to trial transcripts, and could only be addressed by the evidence of the applicant's then trial counsel, Mr Dobson, who is now deceased.[163]
[163] Application ts 109 - 110.

Was the discontinuance notice a nullity?

We do not accept the evidence of the applicant and his father to the effect that the applicant did not want to discontinue the conviction appeal and did not tell Ms Byrne that he wanted to discontinue it. That evidence lacked credibility for the reasons we have given earlier. It was also entirely inconsistent with the contemporaneous records.
As at 30 August 2017, the position was that the applicant and his father had been given clear advice that the conviction appeal had no realistic prospect of success. The only hope in that regard, the possibility that Mr Mather would provide some fresh exculpatory evidence, was foreclosed when Mr Mather was interviewed on 17 August 2017. Further, the applicant was advised that leaving his conviction appeal on foot could prejudice his sentence appeal as it would be inconsistent with any claim of remorse on his part. Accordingly, there were compelling reasons for the applicant to discontinue the conviction appeal.
In our view, the documentary evidence compels the conclusion that the applicant told Ms Byrne in the phone call on 28 August 2017 that he wanted to discontinue the conviction appeal. In particular, that evidence establishes the following sequence of events:
1.Sixteen minutes after the Byrne phone call, Ms Byrne emailed Mr Tuohy to advise him that the applicant had given instructions to discontinue the appeal.
2.At 1.54 pm on 30 August 2017 (two days after the Byrne phone call), Equitas Lawyers sent the first authority document to Mr Rowson Snr asking him to ask the applicant to sign and return it urgently. The urgency arose from the fact that the appellant's case in the conviction appeal was required to be filed by 31 August 2017.
3.Later that same afternoon, at around 4.00 pm, Ms McNamara and Mr Tuohy had a telephone conversation with Mr Rowson Snr. Ms McNamara's file note included a note that Mr Rowson Snr had said, in relation to the authority to discontinue document, 'Not prepared to sign on basis of Nuhana'. The applicant admits that he did not want to sign the first authority document because it included details about Mr Nuhana (although the applicant claims this was not the only reason he did not want to sign it).
4.Two hours after the phone call with Mr Rowson Snr, at 6.13 pm, Equitas Lawyers faxed the second authority document, with a cover letter, to the applicant. The cover letter confirmed that, in the Byrne phone call, the applicant had instructed Equitas Lawyers to discontinue the conviction appeal. It also noted that the deadline for filing materials in the court was the next day.
5.Less than 15 minutes later, Equitas Lawyers emailed a copy of that correspondence to Mr Rowson Snr.
6.At 11.22 am the next morning, Ms McNamara sent an email to Mr Rowson Snr that, among other things, asked that, if the applicant phoned Mr Rowson Snr that day, he remind the applicant to return a signed copy of the second authority document.
7.At 2.26 pm on 31 August 2017, Ms McNamara telephoned Acacia Prison and left a message for the applicant to urgently return her call regarding the second authority document that had been provided to him the day before. That telephone call was recorded on a file note prepared by Ms McNamara.
8.At 3.11 pm on 31 August 2017, Equitas Lawyers sent a letter to this court's registry confirming that the applicant had instructed Equitas Lawyers to discontinue his appeal against conviction and attaching the applicant's notice of discontinuance.
Further, Mr Tuohy's evidence supports the inference we would draw from the documentary evidence (namely, that the applicant did give instructions to discontinue the conviction appeal).
Mr Tuohy, having refreshed his memory from the file notes, had an independent recollection of the telephone conversation between Mr Rowson Snr, Ms McNamara and himself on 30 August 2017. He remembered that Mr Rowson Snr had told them that his son was unwilling to sign the first authority document because of the information concerning Mr Nuhana in the document, but would be willing to sign a similar authority that had been amended and simplified to address his son's concerns.
We further accept Mr Tuohy's interpretation of the file notes made by Ms McNamara and Ms Quek of this conversation. Ms McNamara's note is consistent with the applicant's own evidence that he would not sign an authority that referred to Mr Nuhana. It is also consistent with the fact that Equitas Lawyers prepared and sent an amended authority that did not refer to Mr Nuhana. Ms Quek's note could not have meant that the applicant was going to sign an authority to discontinue the sentence appeal. Mr Tuohy's unchallenged evidence is that there was never a discussion about discontinuing the sentence appeal. It is likely, therefore, that the reference to continuing an appeal should have referred to the sentence appeal and not the conviction appeal. Ms Quek's note‑taking during this telephone call was her first involvement in the applicant's matter, and Ms Quek was (and is) a civil lawyer with no criminal practice.
Both the applicant and his father admit that they were aware that the conviction appeal had been discontinued by 30 September 2017 at the latest. If that had occurred without the applicant's authority it is highly unlikely that the applicant would have delayed making this application for nearly seven years. The reasons given for the delay by the applicant and Mr Rowson Snr were inconsistent and unconvincing.
For these reasons, we are satisfied that the applicant has failed to discharge his onus of proving that the notice of discontinuance was filed without his authority. To the contrary, the evidence establishes that the applicant instructed Equitas Lawyers to discontinue the conviction appeal.
The applicant accepts that he understood that discontinuing the appeal would be final.
The notice of discontinuance was therefore not a nullity.

If the discontinuance notice is not a nullity, should leave to withdraw be given?

The focus of the application was on the nullity question. Comparatively little attention was given to the question of whether leave should be granted to withdraw the notice of discontinuance in the exercise of the court's discretion. Though that alternative was but faintly pressed, it was not abandoned and must be dealt with.
A significant consideration in deciding whether to grant leave to withdraw a discontinuance notice which is not a nullity is the merits of the proposed ground of appeal. In the applicant's written submissions, the proposed ground of appeal is stated as follows:[164]
The [applicant's] trial was rendered unfair and occasioned a miscarriage of justice on the grounds that his trial was incompetently conducted by his Counsel.
Particulars
(a)Counsel failed to permit the [applicant] and members of his family to give evidence in his defence, contrary to previously indicating that such evidence was necessary.
(b)Counsel failed to properly advise the [applicant] why he had changed his mind about the [applicant] giving evidence resulting in the [applicant] not being able to make an informed decision whether he should give or call evidence.
(c)If the [applicant] had been properly advised, he would have persisted in his desire to give and call evidence.
(d)As a result of the above the [applicant] was deprived of having critical evidence before the jury. He may thereby have lost the chance of an acquittal.
(e)No competent defence counsel would have advised the [applicant] not to give or call evidence.
[164] Applicant's submissions in support of application to withdraw discontinuance notice, filed 11 September 2024, 6.
The members of the applicant's family referred to in particular (a) were identified as the applicant's father and the applicant's then partner, Ms Bell.
The legal principles applicable to a ground of appeal that alleges that a miscarriage of justice has occurred due to the conduct of defence counsel are well established.[165] An appellant must demonstrate that the conduct of his or her counsel caused a miscarriage of justice, a task which constitutes a heavy burden.[166]
[165] Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [401] (Buss P, Mazza & Beech JJA).
[166] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J).
The proposed ground raises two contentions. First, that trial counsel effectively foreclosed the opportunity for the applicant to give evidence in his defence by failing to give him adequate advice. Second, that trial counsel failed to call Mr Rowson Snr and Ms Bell, who were able to give relevant evidence bearing on the question of whether the applicant was guilty of the offences charged. These two contentions raise different considerations.
Ordinarily, an accused is bound by the way the trial is conducted by counsel in relation to matters within counsel's remit, regardless of whether that was in accordance with the wishes of the client. That is applicable to decisions as to the witnesses to be called at the trial. However, the election of an accused whether to give or not give evidence is different, as this is essentially a decision that is personal to the accused. A challenge on appeal may turn on the question of whether the trial was unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice.[167] Unfairness may also arise if the accused's will is overborne by threats or pressure. An appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice, or to threats or pressure on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision.[168]
[167] Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202 [32] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
[168] Craig [33] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).
In order to establish that a failure to call a witness caused or contributed to a miscarriage of justice, an appellant is ordinarily required to call the witness in question to give evidence in a form which would be admissible at trial so that the appeal court can be satisfied of what the witness would actually say under oath and the relevance and cogency of that evidence.[169] Whether a witness is called by or on behalf of an accused at a criminal trial always involves a careful assessment by counsel of many competing considerations. Some of these include an identification of precisely what evidence the witness can give, its apparent cogency, its significance to the issues in the case, any known or potentially unhelpful evidence the witness may give and the degree of uncertainty as to what precisely the witness will say, including when under cross‑examination. Unless these matters can be assessed, it is ordinarily likely to be difficult, if not impossible, to conclude that the witness should have been called. An appellant must go further than that, and demonstrate that the failure to call the witness caused or contributed to a miscarriage of justice.[170]
[169] McMahon v The State of Western Australia [2010] WASCA 143 [31] (McLure P, Buss JA & Mazza J agreeing).
[170] Huggins [409] (Buss P, Mazza & Beech JJA).
At the hearing of the appeal, it was pointed out that any assessment of the merits of this ground would need to take into account the evidence that the applicant, his father and Ms Bell could give. The difficulty is that that evidence was referred to in only the broadest terms. The applicant states in his affidavit that:[171]
19.Our evidence would have addressed the allegations in relation to the property as well as my involvement, knowledge and influence in the alleged offending.
20.In my view, my father, partner and I, would have been able to give evidence of a timeline and chronology leading up to the allegations and evidence about the dynamic of Chris' [sic] relationship with his [sic] co‑accused and his [sic] habitual drug use. In turn, these accounts may have had a particular impact on establishing doubt as to key factual issues that ultimately form the crux of the Crown case as it was.
[171] Affidavit of Christopher Neil Rowson, sworn 14 August 2024, 3.
The only other indication of what evidence the applicant could have given is the account that he gave to Ms McNamara on 18 August 2017 (see [53] above). That evidence would not have assisted him as, though he claimed not to know that Mr Mather was bringing drugs to the house, it included an admission that he agreed to assist Mr Mather in his efforts to steal some of the drugs. The applicant's apparent belief that this evidence would have absolved him is misconceived. The evidence would have implicated him as an aider in the possession of the drugs.
Further, the applicant's claim that his trial counsel did not permit him to give evidence and did not provide him with adequate advice does not rise above assertion. No detailed account of what was, or was not, said in interactions between the applicant and Mr Dobson was provided. There is no basis for contending that the applicant's right to give evidence was effectively foreclosed by incorrect advice or that his will was overborne.
As regards Mr Rowson Snr, the evidence he could have given is described in his affidavit in the following terms:[172]
[11]My evidence would have gone to a description of the property (contrary to the prosecution case), that [the applicant] and Nikki were going to Time zone with the kids, and then to our house for dinner after [that] on the day the co offender had attended our residence.
[172] Affidavit of Neil Rowson, filed 11 September 2024, 3.

As regards Ms Bell, the evidence she could have given is described in her affidavit in the following terms:[173]
[6]My evidence would have provided relevant and material information as to what occurred on the day of the alleged offending and supported a proposition contrary the prosecution case.
[173] Affidavit of Nikeeta Bell, filed 11 September 2024, 2.
It is not apparent what admissible evidence Mr Rowson Snr and Ms Bell could give. At best it appears that they could have given some evidence regarding the description of the house and the plans that the applicant had made for later in the day that he was arrested. It is far from clear that this evidence could possibly have affected the outcome. In any event it is not apparent that Mr Dobson was informed of the details of this evidence. Even if he was, it was within the proper remit of trial counsel to decide what witnesses to call. There is no reason to think that any decision not to call Mr Rowson Snr and Ms Bell was not, in objective terms, a sound forensic decision. It has not been demonstrated that it is arguable that the failure to call those witnesses resulted in a miscarriage of justice.
The applicant has fallen well short of establishing that his proposed ground of appeal has any merit.
Furthermore, there has been a very significant delay in bringing this application. That delay has not been satisfactorily explained. It has occasioned prejudice to the respondent in that Mr Dobson has died and it is not possible to obtain evidence from him regarding the allegations the applicant has made regarding his conduct. Those considerations weigh heavily against the exercise of the discretion to permit the notice of discontinuance to be withdrawn.
This is not an appropriate case for the exercise of the court's discretion to grant leave to the applicant to withdraw the notice of discontinuance.

Conclusion

For the reasons we have given, the notice of discontinuance was not a nullity. Further, there are no grounds for the exercise of the court's discretion to grant leave to the applicant to withdraw the notice.
The application should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MO
Associate to the Honourable Justice Hall
19 SEPTEMBER 2025