SANDLAND-DOW v Police - [2014] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SANDLAND-DOW v POLICE
[2014] SASC 31
Judgment of The Honourable Justice Kelly
14 March 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - WHAT CONSTITUTES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - TIME FOR APPEAL AND EXTENSION THEREOF
Appeal against conviction of one count of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) – the prosecution case was that the appellant assaulted the complainant when he punched his fist into his open palm, which was placed by the complainant’s head.
Whether the appellant’s conviction involved a miscarriage of justice on account of counsel’s failure to call character evidence, failure to call a witness, failure to cross-examine the complainant on certain topics and failure to produce a video of the record of interview with the appellant – whether the Magistrate’s reasons were satisfactory.
Held (dismissing the appeal):
1. Extension of time to file notice of appeal refused.
2. The appellant has not demonstrated any incompetency of trial counsel which has produced a material irregularity that has resulted in a miscarriage of justice.
3. The Magistrate provided adequate reasons.
Criminal Law Consolidation Act 1935 (SA) s 20(1), s 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 19A, referred to.
Nudd v The Queen (2006) 162 A Crim R 301; TKWJ v The Queen (2002) 212 CLR 124, applied.

SANDLAND-DOW v POLICE
[2014] SASC 31
Magistrates Appeal: Criminal
KELLY J.

Following a trial in the Christies Beach Magistrates Court, the appellant was convicted on 15 July 2013 of one count of assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the Act). He was discharged with a $1,000 good behaviour bond of two years. An intervention order was also ordered against the appellant pursuant to s 19A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act). The Notice of Appeal (Notice) filed by the appellant appeals against “the whole of the order including the intervention order.” However the grounds demonstrate that the appeal is against conviction only.
In filing his Notice almost two months after judgment was delivered, the appellant applies for an extension of time within which to appeal.
The central issue in this appeal is whether the appellant’s conviction involved a miscarriage of justice on account of incompetent representation by his defence counsel.
Background
The events which gave rise to the charge were alleged to have taken place during a meeting between the appellant and Ms Vicki Scott, the complainant, in an office of the Education Department at Noarlunga House on 14 March 2012. The appellant was in a protracted conflict with the headmaster of his son’s primary school, and was meeting with the complainant, who was a social worker employed by the Department, in an attempt to resolve the conflict. The complainant and appellant had met on seven previous occasions, in similar circumstances. It was the prosecution case that during this meeting the appellant assaulted the complainant by punching his fist into his open palm, which was placed by the complainant’s head.
At trial, the appellant was represented by Ms Jo-Anne Milen. Both the appellant and complainant testified. Their accounts of what was discussed in the room, and in relation to the physical act alleged, were in direct conflict. When asked whether he made a fist to punch into his hand the appellant responded “no not at any time.”
The Magistrate found that the appellant had committed an assault in terms of s 20(1)(e) of the Act. His Honour found that the appellant punched the palm of his hand as his hand was alongside the complainant’s face and that the only inference that could reasonably be drawn from such conduct is that he intended for her to feel frightened and intimidated. The complainant believed that there was a real possibility the appellant would punch her and it was reasonable for her to have this belief. The Magistrate considered the complainant a very impressive witness, concluding “the account she gave was consistent and had verisimilitude. I considered her to be an honest and reliable witness.”
On appeal the appellant raises five complaints which he says should result in an order by this Court that the Magistrate’s orders be set aside and the matter be remitted for trial. Four of those complaints concern the conduct of defence counsel, Ms Milen. The appellant complained first that counsel failed to adduce certain evidence, second to call available character evidence, third to locate material witnesses or issue summons contrary to instructions, and fourth to obtain audio record of interview contrary to instructions. The fifth ground is that the Magistrate’s reasons are unsatisfactory.
Prior to the hearing I sought and later received further affidavit material concerning the first four grounds.
On appeal, counsel now acting for the appellant clarified grounds one and three to mean that defence counsel failed to locate material witness Debbie Pink, or issue a witness summons, contrary to the appellant’s instructions. Her statement was annexed to a further affidavit filed by the prosecution. Ms Pink, a receptionist at Noarlunga House who saw the appellant and complainant on 14 March 2012, provided a different account to the complainant. Counsel for the appellant submitted that calling Ms Pink would have revealed inconsistencies between her and the complainant’s version of events, which would have cast doubt on the complainant’s credibility and reliability. In respect of ground two, the appellant submitted that counsel failed to call good character evidence from Pam Borthwick. Ms Borthwick had a working relationship with the appellant at the school for several years. However, at the hearing I was informed by counsel for the appellant that Ms Borthwick would not provide evidence except by subpoena in any case. Regarding ground four, counsel submitted that the tendering of the video recording of the record of interview into evidence would have been favourable to the appellant.
Discussion
It is helpful to start with some general observations about the principles which apply when a complaint is made on appeal about the competence of a legal representative at trial. The leading authority remains Nudd v The Queen.[1] In that case Gleeson CJ explained the relationship between a party and their counsel and the scope of counsel’s discretion:[2]
A criminal trial is conducted as adversarial litigation. A cardinal principal of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or seek to have excluded, and what lines of argument to pursue.
[1] (2006) 162 A Crim R 30.
[2] Nudd v The Queen (2006) 162 A Crim R 301 at [9] per Gleeson CJ.
In the same case Gummow and Hayne JJ stated:[3]
Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material regularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.
[3] Nudd v The Queen (2006) 162 A Crim R 301 at [24].
In TKWJ v The Queen[4] the appellant alleged unfairness on account of counsel’s failure to lead good character evidence. The Court rejected that argument and held that the failure to call such evidence was the result of a decision by counsel; that decision, viewed objectively, was a rational one.[5] McHugh J described the standard for determining whether counsel’s conduct is a material irregularity as follows:[6]
The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
…
If counsel omits to call a material witness because of a memory lapse or a breakdown in communication and there is a significant possibility that the omission affected the outcome, the appellant will usually establish that a miscarriage of justice has occurred.
[4] (2002) 212 CLR 124.
[5] TKWJ v The Queen (2002) 212 CLR 124 at [16] per Gleeson CJ; at [26]-[27] per Gaudron J; at [95] per McHugh J; at [107] per Hayne J.
[6] TKWJ v The Queen (2002) 212 CLR 124 at [79]-[85].
The practical issue which arises in the context of these facts is whether any of the alleged acts or omissions of Ms Milen constitute a material irregularity in the conduct of the trial and, if so, whether there is a significant possibility that the Magistrate would have acquitted the appellant if counsel did do the things the appellant claims he instructed her to do and that she should have done.
Analysis
In considering each of the grounds of appeal I have had regard to the affidavits filed upon the hearing of this appeal including the affidavit of Ms Milen dated 8 November 2013, both affidavits of the appellant dated 12 August and 7 December 2013 respectively, together with further affidavits from Mr Carlin on 13 November 2013 and Mr Opacic of 31 October and 12 December 2013 respectively.
Failure to call character evidence
It is convenient to start with the complaint that counsel failed to call available character evidence.
There is no doubt that the failure to call character evidence when it is available could affect the outcome of a trial, particularly where, as here, the resolution of the disputed factual issues depended almost wholly on the Magistrate’s assessment of the credibility and reliability of the witnesses including the appellant. Evidence of good character may have been relevant both as to the credibility of the appellant and also to the likelihood of the appellant committing the offence.
In her affidavit sworn 8 November 2013 Ms Milen deposed to the fact that according to her best recollection, the topic of calling any evidence as to character was never discussed with the appellant and she at no stage received any instructions to call any available character witnesses.
In light of Ms Milen’s concession that the topic of character evidence was never raised, I enquired what, if any, character evidence the appellant would have called had he been given the opportunity. The hearing of this appeal was twice adjourned for the specific purpose of enabling the appellant to produce any further material in support of the grounds of appeal, but in particular, in support of this ground.
The appellant identified a Ms Pam Borthwick as the proposed character witness. Ms Borthwick is a parent liaison co-ordinator at Christies Beach High School. The appellant asserted that Ms Borthwick would and could have given evidence as to his character, volunteer work at the Christies Beach High School and rapport with both students and parents, and about the issues the appellant was having with Mr Filer the school principal.
I was informed that the appellant and Ms Borthwick had a working relationship at the high school for some seven years. She was aware of the conflict between Mr Filer and the appellant. The conflict arose out of ongoing custody issues which the appellant was having with his former partner over the appellant’s son. In the end however, there was no affidavit forthcoming from Ms Borthwick. Indeed it transpired that Ms Borthwick refused to give evidence unless subpoenaed to do so. That state of affairs does not imply that the appellant had an available witness ready, able and willing to give evidence of the appellant’s good character.
Even if Ms Borthwick had been called, it is not clear to me how the evidence which the appellant proposed to lead from her about the appellant’s volunteer work with the high school, his relationship with the students and parents and his ongoing conflict with principal would have advanced the appellant’s claim to good character.
Some of this material was in any event already before the Magistrate. The appellant himself gave evidence about his role as a volunteer mentor at the school and his membership of school boards. The appellant’s ongoing protracted conflict with the school principal Mr Filer was also raised at the trial. Exploring those issues in further detail may well have been a dangerous course for the appellant to have taken, particularly in light of the appellant’s prior antecedent history.
Although the appellant asserted that he had no antecedent history apart from one offence of possessing firearms in 1996, the antecedent report produced at the hearing of the appeal revealed that in fact the appellant has had previously confirmed restraining orders against him as long ago as 1998 and more recently in 2007, as well as a domestic violence restraining order confirmed in 2007. These are all matters which would have been relevant had the appellant led any evidence of good character.
For this reason properly instructed counsel might well have made a legitimate forensic decision not to put the appellant’s character in issue.
However the point is now academic as after due enquiry, the appellant’s assertion that there was an available character witness who would give evidence as to his good character was never made good.
The appellant has failed to demonstrate either that he had an available character witness to be called, or even if he did, that the failure to call character evidence has resulted in any material irregularity in the trial such as to produce a possibility that the failure to call character evidence affected the outcome of the trial. On the contrary to have put his character in issue may well have been counter-productive for the appellant in light of his previous history.
In these circumstances the failure to call character evidence at the trial does not amount to a miscarriage of justice and this ground of appeal must be dismissed.
Failure to adduce certain evidence
I turn now to the issue of whether the failure of counsel to adduce certain evidence resulted in a miscarriage of justice. Counsel for the appellant on the hearing of the appeal clarified that by this ground of appeal the appellant was complaining about the failure of defence counsel at the trial to call Debbie Pink.
The appellant alleges that he instructed Ms Milen to call Ms Pink who he knew only as “Debbie”. He raised the issue with his counsel on a number of occasions and, according to the appellant, Ms Milen responded by saying words to the effect of “it is going to cost too much”.
Ms Milen in a sworn affidavit concedes that the topic of calling Ms Pink was raised. Ms Milen said that Ms Pink was not subpoenaed as she was never provided with Ms Pink’s name or address nor what evidence she was capable of giving. She suggested that the appellant contact Ms Pink directly as he knew her and she was an employee of the Education Department.
Ms Milen said in an interview pre-trial she asked the appellant if he had contacted “Debbie” to which the appellant responded “no”. She said she did not receive any instructions that day, or any subsequent day, to subpoena Ms Pink. If she had done so, she would have written those instructions down.
For the purpose of assessing the complaint that there has been a miscarriage of justice by the failure to call Ms Pink, I sought and received a declaration of the statement Ms Pink would make if called. In a statement dated 13 October 2013 Ms Pink said she was outside the room during the meeting between the appellant and the complainant on the day of the offence. Ms Pink said:
I could not hear or see anything that took place during that meeting, there is a wall obstructing my vision and I wear an ear-piece in my left ear. The phones constantly ring and I have people coming and asking me things also. I don’t generally listen to any meetings that take place.
I could hear mumbling coming from the room that SANDLAND-DOW and SCOTT were in but could not hear any conversations.
I recall Mr SANDLAND-DOW popping his head out at one stage during the meeting but I don’t recall what he said but I think he was just trying to be funny. I recall Mr SANDLAND-DOW nudging the door as he popped his head out which caused the door to slightly close behind him, however the door did still remain open.
After the meeting was finished Mr SANDLAND-DOW and SCOTT left the room where she walked him to the elevators. Mr SANDLAND-DOW said to me “Thank you very much.”
I formed the opinion that something wasn’t right as SCOTT was holding her head and patting her hair down at the back as she walked SANDLAND-DOW to the elevator where she said goodbye to him. Vicki then got into a separate elevator.
I would say the meeting between Mr SANDLAND-DOW and SCOTT lasted for approximately 45 minutes.
SCOTT never mentioned anything about the meeting to me.
A few weeks after this incident in March 2014 [sic], Mr SANDLAND-DOW contacted the office. I cannot recall whether it was in person or over the phone.
I recall Mr SANDLAND-DOW asking how one goes about making a complaint about the Education Department. In my opinion he was trying to obtain information from me about what I would say regarding the situation. I replied to him “I am really sorry Andrew, I cannot help you.”
There were two topics in respect of which the appellant claimed the evidence of Ms Pink would have been crucial in that it departed from the account given by the complainant. Those topics were the issue of whether the door between the meeting room and the outside area remained open or closed during the meeting, and whether the table in the meeting room was round or rectangular at the time. According to Ms Pink, at the relevant time the table “would have been rectangular” although now it was round. The complainant claimed that the table at the time was round.
Ms Pink’s testimony was that she could not hear or see what went on inside the meeting room. The door remained open, though it closed slightly behind the appellant when he popped his head out on one occasion.
This evidence, far from being inconsistent with the account of the complainant, actually supported her evidence. The complainant conceded in cross-examination that the door was never totally shut.
The important point which I take from Ms Pink’s statement is that on the subject of the actual offence Ms Pink had nothing to say. She did not see it and did not hear it.
It was said that Ms Pink’s evidence could have cast doubt on the credibility and reliability of the complainant’s evidence as to the incident.
It was never satisfactorily explained how any misdescription of the table as rectangular or round was a material inconsistency. On the topic of the door I am satisfied that not only is Ms Pink’s evidence not inconsistent with the complainant’s, but in some respects supports it.
In these circumstances in my view the failure to call Ms Pink was not a material irregularity. It most certainly has not resulted in any forensic disadvantage to the appellant and the failure to call Ms Pink may well have been justified.
Failure to cross-examine the complainant
The appellant’s complaints regarding counsel’s failure to cross-examine the complainant Ms Scott on certain topics of evidence, were articulated as follows:
7.1Defence Counsel failed to adduce certain evidence:
7.1.1From Vicki Scott regarding our ten/eleven prior meetings, with no prior issues that had been brought my attention, and on no occasions had she felt it was necessary to have anyone else present during any of meetings;
7.1.2From Vicki Scott regarding her knowledge of my dealing with both Mr Ian Filer, Christies Beach Primary School Principle [sic] and Ms Jenny Sommers, Deputy Director of Southern Region of Education and Child Development, regarding schooling problems/issues with my son Ambrose and my complaints regarding Mr Ian Filer.
7.1.3From Vicki Scott regarding the conclusion of our meeting on 14 March 2012 at the Education Office at Noarlunga Centre when we exited the office, walked towards the lifts and when I asked her if she wanted to have a coffee together and she replied “No. Thanks. I’m going up stairs to speak Leslie.”
7.1.4From Vicki Scott as to why it had taken her ten days to report the alleged assault to police and from whom in the Department of Education had she been influenced to make the complaint against me?

The trial transcript reveals that much of this material was before the Magistrate in any event.
The appellant himself spoke of his previous involvement with the complainant. The complainant was cross-examined about it with the view to the appellant demonstrating that he had previously had a cordial relationship with the complainant. She did not disagree.
As to the late complaints made by the complainant some 10 days after the incident, the complainant was cross-examined on that topic and gave an explanation for the delay. The conversation in the lift in the context of the events that day is of little moment.
In my view the appellant has not demonstrated that there was any forensic advantage at all to be gained by any more extensive cross-examination of the complainant about the appellant’s dealings with the school principal, with the deputy director of Southern Region Education, Ms Sommer, or issues and conflicts over the appellant’s son. On the contrary, for the reasons which I have explained earlier, there was some potential for any detailed exploration of that conflict to disadvantage the appellant.
Failure to produce video of interview
The appellant complains that defence counsel failed to produce in evidence at the trial the video of the interview with the appellant.
I have viewed the video of the interview. Although it does reveal something of the appellant’s demeanour throughout the interview, it has not been explained how this could have assisted the appellant at the hearing. This is especially so in light of the fact that the Magistrate had the appellant sitting in his court for the better part of a day and had the opportunity to observe him in evidence and cross-examination during the trial. There is nothing additional in the video of the interview which in my view could have assisted the Magistrate to evaluate the evidence of the appellant.
Moreover there was no dispute at the trial about the accuracy of the transcript of the record of interview.
In the circumstances the failure to tender the video of the record of interview does not constitute an irregularity, let alone a material irregularity, in the conduct of the trial. In the circumstances it was perfectly reasonable for the parties to agree that a transcript of the interview be tendered.
The Magistrate’s reasoning
The last ground of appeal is a complaint that the Magistrate failed to provide satisfactory reasoning in his judgment. Counsel for the appellant identified the appellant’s main complaint under this ground to be that the Magistrate failed to provide adequate reasons for accepting the evidence of the complainant in preference to the appellant’s evidence, in light of the fact that the complainant’s evidence was uncorroborated and inconsistent with the appellant in several respects. The appellant also complains that the evidence of the complainant was unclear and at some points Ms Scott was uncertain, which should have caused the Magistrate to have some doubts about her credibility.
I have previously referred to some of the inconsistencies in the evidence of the complainant in the context of the appellant’s complaint that counsel failed to adduce certain evidence. For the reasons I have explained earlier, I find that the inconsistencies in the complainant’s evidence are trivial in the scheme of things and not of such moment that they ought to have undermined the reliability and credibility of the complainant.
I bear in mind that this was a reasonably short trial with the evidence being completed in less than one day. There were really only two witnesses; the complainant and the appellant. At trial, both gave accounts which were irreconcilable as to what happened in the room at the time of the assault upon Ms Scott. The Magistrate commented favourably about the complainant. He found her an impressive witness whose answers were “not coloured by any obvious antipathy or hostility towards the defendant”.
My own reading of the trial transcript reveals that the complainant was a restrained witness, not prone to embellish or exaggerate and prepared to make appropriate concessions. The Magistrate said he found her evidence compelling.
In my view the appellant has not demonstrated that the Magistrate’s conclusion was erroneous or that his findings of fact were glaringly improbable or contrary to compelling inferences.
Conclusion
Upon my review of the whole of the evidence I am not satisfied that the appellant has demonstrated any incompetency of trial counsel let alone incompetency which has produced a material irregularity affecting the outcome of the trial. The Magistrate’s reasons are clear and comprehensive. After reviewing the whole of the evidence I have no misgivings about the verdict.
Having reviewed the whole of the evidence, I have concluded that there is no substance in any of the complaints made by the appellant. For this reason I refuse the appellant’s application for an extension of time within which to file the notice of appeal. The appeal is dismissed.