(b) Ordinarily, an accused is bound by the way the trial is conducted by counsel regardless of whether counsel's conduct accorded with his or her wishes. It is not a ground for setting aside a conviction that decisions made by counsel were made without, or were even contrary to, the accused's instructions or involved errors of judgment or negligence [24].
(c) There will be a miscarriage of justice regardless of whether counsel's conduct might have affected the outcome if the accused has been deprived of a fair trial according to law [25].
(d) Two questions arise where the conduct of counsel has not deprived an accused of a fair trial according to law but counsel's conduct was nevertheless irregular in some respect: first, did the conduct result in a material irregularity in the trial and second, was there a significant possibility that the irregularity affected the outcome [26].
(e) The test of whether there was a material irregularity is objective and ordinarily, a material irregularity will not occur where the alleged error of counsel concerned forensic choices about which competent counsel might have differing views. Nevertheless, there will be a miscarriage of justice even though the error involved a forensic choice or judgment if it plainly affected the outcome of the trial [27].
(f) A failure to cross-examine on a particular matter may be a material irregularity. Where the alleged error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence [27] (and see Smith v The State of Western Australia [2014] WASCA 90 [2] (McLure P)).
36 In Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, the High Court emphasised that the ultimate issue is not whether counsel was incompetent but whether what happened or did not happen at the trial was a miscarriage of justice [25] (Gummow and Hayne JJ).The rule in Browne v Dunn
36 Broadly, the appellant alleged that his counsel had failed to put his case to the complainants (that the dealings had not occurred) by not cross-examining them to suggest that their evidence was fabricated or the product of suggestion by their parents or that they were mistaken about what had actually happened. It was submitted that the appellant's counsel had failed to comply with the rule in Browne v Dunn (1893) 6 R 67 HL on fundamental aspects of the appellant's defence. This was described as both a 'process' and 'outcome' error.
37 The rule in Browne v Dunn must be applied with care when considering the conduct of an accused's defence in a criminal trial: MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 [18]. The reasons for caution were explained by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 and King CJ R v Manunta (1989) 54 SASR 17.
38 Birks and Manunta were cases in which the trial judge, in directing the jury, referred to the failure of counsel to have put matters to prosecution witnesses. King CJ (with whom Legoe and Bollen JJ agreed) explained in Manunta that:
It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply be overlooked (23).
39 Significantly, in this case neither the prosecutor nor the trial judge made any reference to the failure of the appellant's counsel to question AW or BW on the matters that it is now suggested ought to have been pursued in cross-examination. The jury were not invited to draw any adverse inference about the facts or the truthfulness of the appellant's statements to the police from the alleged failure to have cross-examined AW or BW on some particular matter. 40 The purpose of the rule in Browne v Dunn is to ensure fairness in the conduct of adversarial proceedings. Consequently, the rule is to be applied flexibly according to the particular circumstances of the case. In Thomas v Van Den Yssel (1976) 14 SASR 205, Bray CJ (with whom Jacobs and King JJ agreed) commented that the rule in Browne v Dunn could not be applied without qualification to a challenge to a witness's credit generally. His Honour stated:
And in many other cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, 'I put it to you that your evidence is false', or 'I suggest that that is a deliberate lie' or the like. … The rule in Browne v Dunnhas much more force when applied to evidence relating to a particular fact or topic than when sought to be applied to the general credit of the witness … (207).
41 Those comments have been cited with approval by McLure P in Lazarevic v The State of Western Australia [2007] WASCA 156 and Merrey v The State of Western Australia [2010] WASCA 62. The President noted that it was unnecessary to put questions that permit only one response - a bare denial (Lazarevic [20]; Merrey [16]).Analysis
42 The evidence of BW and AW was comprised of their recorded interviews with the police and their pre-recorded evidence. They each gave the interviewing police officers a detailed account of the incidents that were the subject of the charges. The appellant had no difficulty in identifying the occasions on which the incidents were alleged to have occurred when he was interviewed by the police. The identity of the alleged offender was not in issue.
43 In that context, a number of the matters on which it was submitted the appellant's counsel ought to have cross-examined were, in effect, bald assertions that almost inevitably would have elicited bare denials if they had been put to the complainants. An example can be found in the following exchange that occurred early in the cross-examination of AW:
Now, remember how we were just talking about the shower; you were talking about that to the - to my friend?---Yes. Okay. I'm just wondering what makes you remember this incident when it occurred?---What - what makes me remember it?
What - I apologise. That was probably a really confusing question. I'll rephrase that question so it's a little easier to understand?---Yeah.
What makes you so certain about maybe when it happened?---Because I lived it and I seen it with my own eyes.
Okay. Just wondering what makes you so sure when it occurred?---I'm not so sure about the actual time or date it occurred but I know it occurred.
You seem to be getting a little bit upset. I don't want to - I certainly don't want to upset you. Do you want to take a minute or have a drink or anything?---No. I just want to get through with it, thank you (29 October 2014, ts 37 - 38).
44 Contrary to the appellant's submissions, his counsel did endeavour to explore the accuracy of the accounts given by BW and AW to the police having regard to matters such as the passage of time. However, the above exchange illustrates the difficulty that she faced in cross-examination. 45 There were further problems with the appellant's submissions. For example, it was contended that evidence ought to have been elicited from the complainants about their knowledge of problems in the relationship between their parents and the appellant and his wife. It was submitted that evidence about that matter would have provided a context for suggesting to the complainants that they had fabricated their allegations because of a falling out between their parents and the appellant - that is, that the complainants were influenced directly or indirectly by their parents to make the allegations in the context of a hostile relationship with the appellant and his wife.
46 However, the evidence indicated that it was the complaint made by BW that (understandably) disrupted the relationship between the complainants' parents and the appellant and his wife. That was consistent with what the appellant told the police. The appellant made a number of disparaging remarks about his son-in-law in his second and third interviews with the police. However, in the third interview he stated, '[u]p until the incident came up with [BW], there was no bad blood as such … So, yeah, that just sort of, you know, it's all gone pear shaped since then' (6 May 2013, ts 43).
47 The appellant suggested in his interviews with the police that the complainants' parents were behind the allegations made against him. So, for example, in his third interview the appellant said:
The only reason why I say you really need to talk to the parents is because they're obviously - they're turning something obviously that was innocent and, you know, into something sordid. And it was the same with the [GW] allegations (ts 40 - 41).
48 He was asked to explain what he meant by that comment and the following exchange occurred:
THE APPELLANT: Well, you've gotta go back to the first allegation, which was from [BW]. CON DOBSON: Alright.
THE APPELLANT: Alright. And you remember when we first started - oh, you may not have been in the room. When we first started talking I said right back from the first interview, when I was first interviewed, I said to the detectives back then, 'Have you talked to the other kids?', because I knew that if the parents didn't get satisfaction, we would be back here again talkin' about, they've got three other kids, and they would, knowing the parents as I know them, they would come up with some other allegations.
CON DOBSON: Just when you say, 'the parents get satisfaction', why would they - - -
THE APPELLANT: Because I don't think they're happy with the way things have gone.
CON DOBSON: Okay.
THE APPELLANT: And obviously they want to see me guilty or something, and they're doing everything they can, so, um, you know, they're using the kids and things like this (6 May 2013, ts 41).
49 Those comments were speculative and provided no factual material on which to challenge the complainant's evidence apart from questions of the 'I put it to you …' variety. 50 It is also necessary in assessing the forensic issues that confronted counsel to consider the appellant's contention that the complainants ought to have been cross-examined on whether they were aware of the allegations made by their siblings. AW stated in his evidence-in-chief that he had not told his parents 'the specifics' of the appellant's alleged dealings with him. He also stated that he had not 'specifically' spoken about those matters with BW, GW or his eldest brother, JW.
51 The issue was pursued in cross-examination. Again, AW denied discussing what had happened 'in specifics' with any other person. He stated:
I didn't tell my mum anything. My - I told my - I said to my dad that the same thing that's happened to my brother and my sister has happened to me and that - that was it (ts 39).
52 He then explained that he had heard in relation to BW and GW that, 'my pop had done something in some sort of way to them … I heard sexually assaulted them' (ts 39). The appellant's counsel asked further questions about what AW had heard. The effect of AW's answers was that he was aware that GW and BW had made allegations against the appellant but he did not know the detail of what had been alleged. He also stated that his mother had asked him whether 'it had happened to me' after BW and GW had made their complaints (ts 40). 53 BW also stated in his evidence-in-chief that he had not discussed 'specifically' what had happened in the tent with AW, GW, JW or his parents (ts 63 - 64). He was asked what he told his parents in cross-examination:
What did you tell your parents when you first told them about what happened?---When I first – when I first told them I said – I cannot remember the exact words but I said something along the lines that he had touched me and I was crying and that is when my mum started to ask me about it and I – yes, told them what happened. So you did tell your mum and dad what had happened?---Yes.
Okay?---Not in detail, no, but I did.
What do you mean by – by that?---I told them that he had touched - not in this exact words, I told him that they - he'd touched me inappropriately and then that is when they had organised and called up the - I think it was the Merredin police station and that is when the first interview was - like, when it was plan - like, planned to happen, like that's when they first called up, yes (ts 70).
54 Accordingly, the appellant's counsel did pursue in cross-examination the question of whether BW and AW had discussed with their parents and siblings the allegations that they had made against the appellant. The questions did not produce any significant admissions. 55 There was a line of questioning that the appellant suggested ought to have been explored with BW concerning the extent to which he had discussed what had occurred with JW. The second interview between the police and BW was conducted three years after the first interview. BW stated that he agreed to participate in the second interview following an incident involving JW:
Mum and dad's been asking me to do it for the past year, so since I was year, like, 7 to now. So been, like, three years. And then, um, just recently, my brother had his 18th. And he got, um, really drunk and he, um, started going off and saying how – like, how he wanted to kill my -- my granddad. And so – and he was just going off. Not – me and my dad were holding him down. So we took him to the hospital and then he was just, like, going off and telling the doctor what happened to me. So then the doctor was talking to mum, and yes, that's how we came in here and had this interview' (29 October 2012, ts 3).
56 BW was not asked about that incident or about what, if anything, he had discussed with JW concerning the appellant's alleged indecent dealing. JW was cross-examined on the incident. He stated that he could only recall saying something to BW 'to the effect of not being able to protect him' (ts 341). He also stated that AW and GW had not confided in him. 57 Presumably, a decision on whether to cross-examine BW about this incident was made having regard to JW's statement to the police that formed part of the prosecution brief (the statement was dated 17 July 2013). JW stated that he was at home from boarding school in about May/June 2009. He asked 'everybody if they wanted to go and see Nan and [the appellant]'. BW and AW immediately said 'no'. He went to his room and was followed by his father who 'looked upset and practically in tears'. His father said that BW had told him and his mother that he had been sexually abused by the appellant (pars 123 - 131). JW added, 'what was said at that time wasn't spoken about again' (par 132).
58 JW then described the incident on his 18th birthday. He did not indicate that BW had disclosed the detail of what had occurred but rather gave an account of his guilt over not protecting his brother; that he had become so angry and agitated that he had been taken by ambulance to the Peel Health Campus; that a few days later, he found his mother and GW crying and that his father had said, 'he got to her as well' (pars 164 - 179).
59 JW's evidence was consistent with the evidence of BW and his parents that it was BW's complaint that had destroyed the relationship between the appellant and his step-grandchildren and their parents and that the detail of what had occurred was not discussed. His statement to the police was charged with emotion and bound up with the allegation made by GW. Again, the statement presented a forensic quandary for the appellant's counsel. Another counsel might have adopted a different approach to the evidence about how JW came to learn of the allegation made by BW but, in my view, the failure to cross-examine BW and JW on the issue cannot be characterised as a material irregularity.
60 The difficulty in following this line of questioning was compounded by the statements made by BW and AW to the police about the circumstances in which they had made their complaints about the appellant. It was apparent from his first record of interview that BW was too upset to be questioned about what he alleged had occurred. He stated in cross-examination that he had 'emotionally broken down' (ts 70) (the recording of the interview was an exhibit).
61 BW was questioned by the police in the second interview about the period between the alleged indecent dealing and when he had first complained to his parents. He stated that he had spent weekends at his grandparents' house; that he was too scared to say anything; that he would stay up all night so that he would 'know that nothing would happen to me because I was so scared' and that he eventually told his mother what had occurred because 'I just couldn't stand going there anymore and, like, seeing him and staying there' (interview 29 October 2012, ts 27 - 29).
62 The submission that BW ought to have been cross-examined to the effect that his 'reluctance to pursue the allegations in 2009 was because the allegations were not true' (appellant's submissions, par 41.4) ignored the forensic difficulties that confronted the appellant's counsel. There was nothing in BW's first interview with the police to suggest that his distress was not genuinely caused by the subject matter and nature of his complaint. There was no apparent basis for doubting his account, and that of his parents, as to the circumstances in which he first complained about the appellant's conduct (and there was independent evidence on the timing of the complaint). There was also nothing in the circumstances that suggested an explanation for why he would have fabricated the allegation (given that there was no real evidence of hostility between BW's parents and the appellant prior to the complaint and no evidence that BW was aware of any deterioration in the relationship between parents and the appellant even if that had occurred). Accordingly, the appellant's counsel would not have had any reasoned basis for challenging a denial by BW that he had terminated the first interview with the police because he knew that his complaint about the appellant was untrue. The effect on the appellant's defence of pursuing that line of questioning without obtaining an admission by BW is obvious.
63 AW told the police that he had been close to the appellant, but that he had become upset about what had occurred during an argument with his father. He said, 'well, it all started because me and dad had a fight - - just argument and then, um, I don't know. I was just upset about it so I just came out and told them' (interview 7 February 2013, ts 17). He also told the police that he had spoken to his girlfriend about what had occurred shortly prior to telling his parents.
64 AW told the police that he had stopped seeing the appellant when BW 'first said about what had happened in Beacon'. However, he had 'only just told mum and dad, like, a couple of weeks ago so have really held it for, like, years now' (7 February 2013, ts 17).
65 Accordingly, BW and AW each gave an account to the police that was detailed, plausible and not apparently animated by malice. Rather, the distress and hurt caused by the appellant's alleged dealings with them was evident (made more poignant by the fact that they had both been close to the appellant). Those matters provided the forensic context within which they were cross-examined.
66 The appellant did not identify precisely what propositions he alleged ought to have been ultimately put to the complainants. Were they coerced or manipulated or influenced by their parents? Had they colluded between themselves? If so, when and how had that occurred given that their evidence-in-chief substantially comprised the electronically recorded interviews with the police (see s 106HA and s 106HB of the Evidence Act 1906 (WA))? Was their evidence deliberately fabricated or the product of suggestions that they had come to believe were true? Counsel seeking to explore those questions for the first time in cross-examination, and without any proper factual basis, would obviously be embarking on a dangerous forensic exercise.