Sethi v The State of Western Australia
[2020] WASCA 173
•23 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SETHI -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 173
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 16 SEPTEMBER 2020
DELIVERED : 23 OCTOBER 2020
FILE NO/S: CACR 158 of 2019
BETWEEN: CHAYNIKA SETHI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEVENSON DCJ
File Number : IND 2068 of 2019
Catchwords:
Criminal law - Appeal against convictions for stealing as a servant - Whether miscarriage of justice arose from incompetence of trial counsel in failing to adduce, or advise the accused about adducing, evidence of prior good character
Legislation:
Criminal Code (WA), s 378(7)
Result:
Applications to adduce additional evidence allowed in part
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | S Vandongen SC & S Nigam |
| Respondent | : | L M Fox |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
BGH v The State of Western Australia [2020] WASCA 124
Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202
Durani v The State of Western Australia [2012] WASCA 172
George v The State of Western Australia [2020] WASCA 139
Parsons (a pseudonym) v The Queen [2016] VSCA 17
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
ZHA v The State of Western Australia [2020] WASCA 101
JUDGMENT OF THE COURT:
Summary
On 22 August 2019, the appellant was convicted after trial of 98 counts of stealing as a servant, contrary to s 378(7) of the Criminal Code (WA). The charges arose out of 98 transactions occurring between 6 May 2016 and 7 February 2018. A total of $162,805.87 was transferred to the appellant's personal bank account from the bank account of the physiotherapy practice where the appellant was employed as a practice manager. On 6 September 2019, the appellant was sentenced to a total effective sentence of 2 years 8 months' imprisonment, with eligibility for parole.
The appellant now appeals against her convictions on one ground of appeal. She contends that the incompetence of her trial counsel, by failing to adduce good character evidence or advise the appellant in relation to good character evidence, occasioned a miscarriage of justice.[1] The application for leave to appeal was referred to the hearing of the appeal.
[1] The appellant was granted leave to amend her ground of appeal at the hearing of the appeal: appeal ts 21.
In our view, that ground of appeal has no reasonable prospect of succeeding. Leave to appeal should be refused, and the appeal should be dismissed.
Uncontroversial facts
We begin by noting some facts established by the evidence which were not contentious at trial or on appeal.
The physiotherapy practice
The alleged victim of the offences was a physiotherapy practice operated by a company as trustee for a family trust. It will be convenient to refer to the alleged victim as the physiotherapy practice in these reasons. The physiotherapy practice was controlled by a physiotherapist to whom it is convenient to refer to as the principal physiotherapist.[2]
Admitted facts
[2] Trial ts 56 - 57.
At the commencement of the trial, the appellant made a number of admissions under s 32 of the Evidence Act 1906 (WA).[3]
[3] Trial ts 54; exhibit 1.
Between March 2008 and March 2018, the appellant worked as a receptionist and practice manager at the physiotherapy practice. In that role, she was required to perform bookkeeping and banking functions on behalf of the physiotherapy practice. For that purpose, the appellant was provided with a customer number and password for the Business Transaction bank account of the physiotherapy practice (Business Transaction Account).
Between 6 May 2016 and 7 February 2018, a total of $162,805.87 was transferred in 98 transactions from the Business Transaction Account to the appellant's personal bank account. With three exceptions, the appellant is either recorded as working, or there is no record as to whether she was working, on the days when the transactions were performed. The transaction descriptions on the Business Transaction Account indicate that the payments were for business expenses of the practice, other than the appellant's wages.[4] Generally speaking, the balances of the appellant's personal bank account were low or negative at the time the payments were made to that account from the Business Transaction Account.[5]
[4] Exhibit 1.
[5] Exhibit 3.
On 27 December 2017, 7 January 2018 and 8 January 2018, three payments of business expenses totalling $5,706.79 were made from the appellant's personal bank account. Between 20 February 2018 and 14 March 2018, nine payments totalling $93,000 were made from the appellant's personal bank account to a trust account operated by the physiotherapy practice (Trust Account).[6]
Documentary evidence
[6] Exhibit 1.
The following uncontroversial facts were established by documentary evidence at trial.
The appellant was also a client of the physiotherapy practice and regularly received treatment, although no treatment was recorded as being received from the principal physiotherapist in the relevant period.[7]
[7] Exhibits 15, 16 and 17.
In addition to her personal account, the appellant also held a credit card account, with the balance generally close to the credit limit, and consecutive loan accounts (generally with a debit balance of between $16,000 - $23,000) over the relevant period.[8]
[8] Exhibits 19 - 21.
Business Transaction Account banking receipts tendered at trial recorded that a person using the appellant's login details authorised the transactions the subject of counts 60 - 98.[9] In a number of those cases, a person using the appellant's login details also authorised transactions paying legitimate business expenses, such as wages, at about the same time.[10] The tendered receipts also indicated that the principal physiotherapist had authorised 'drawings' from the Business Transaction Account to the Trust Account.
[9] Exhibit 13.
[10] Exhibit 13. Transactions on 29/9/17 (including those the subject of counts 75 and 76), 16/10/17 (including that the subject of count 80), 19/10/17 (including that the subject of count 81), 30/10/17 (including that the subject of count 83), 8/12/17 (including that the subject of count 87), 18/12/17 (including that the subject of count 89) and 3/2/18 (including that the subject of count 97).
The appellant and the principal physiotherapist signed a letter dated 14 February 2018 on the letterhead of the physiotherapy practice. The letter indicated that the appellant had willingly given her passport and her family's passports to the principal physiotherapist to hold. The letter also indicated that the appellant was aware that she could request them back at any time, that she was not being coerced to give the principal physiotherapist the passports and that she was happy to comply with the principal physiotherapist's request to hold the passports.[11]
[11] Exhibit 11.
Also on 14 February 2018, the appellant sent the following text message to the principal physiotherapist's phone:[12]
My dad just confirmed that he can arrange 100k but he just has to figure out a way to send them through as due to the big amount it will lead to an income tax inquiry for him. He'll start sending money through in installments [sic] hopefully within this week so as soon as i receive it i'll let u know. I am meeting a broker tomorrow from century 21, i'll be borrowing the balance amount through him. Re the interest, when u ready let me know the amount and i'll start paying for it.
Thanks for understanding. (emphasis added)
The principal physiotherapist responded 'Ok, keep me posted'. Subsequent text messages between 15 February 2018 and 7 March 2018 refer to the appellant arranging for her father to send her $100,000 in instalments for her to pay into the Trust Account and the appellant attempting to arrange for a loan.[13]
[12] Exhibit 10.
[13] Exhibit 10.
The appellant signed a letter dated 16 February 2018 on the letterhead of the physiotherapy practice confirming that the Trust Account, the principal physiotherapist's credit card and another account 'were never used to pay for my personal expenses during my employment at' the physiotherapy practice. The letter also stated that:[14]
I do understand that a legal action will be taken against me if the above statement is proved to be false.
[14] Exhibit 8.
A handwritten note dated 19 March 2018 on the letter referred to at [14] above indicated that the principal physiotherapist was returning the appellant's passports as she requested them back. The appellant and the principal physiotherapist signed this handwritten note.[15]
[15] Exhibit 11.
On 3 April 2018, the appellant emailed the principal physiotherapist inquiring about termination payments (unpaid salary and leave entitlements). On 4 April 2018, the principal physiotherapist responded stating that the appellant's employment was terminated for serious misconduct. On the same day, the appellant responded providing a link to a page on the Fair Work Commission's website. On 5 April 2018, the principal physiotherapist sent the appellant the following email:[16]
I have discussed this with an industrial relations lawyer. In cases like this where a significant amount of money has been stolen the amount owed in wages and annual leave may be negotiated to reduce the amount of the stolen funds that need to be paid back.
This may be viewed more positively by all concerned should there be a third party review of the events that have transpired. As such we request that you consent to us retaining your final wage and accrued annual leave which would be in line with your original suggestion to me that you pay all the money back with interest after you confessed to taking the money. At that time you suggested that I hold back your wages as payment for the theft and I decided not to do so as you were making an effort to pay the money back. Since you have ceased to make an effort to pay the money back it seems logical that you consent to us withholding your final wage and accrued annual leave as a step towards repairing the damage done by taking the money wrongfully.
[16] Exhibit 12.
Later on 5 April 2018, the principal physiotherapist again emailed the appellant asking that she indicate, by the close of business the following day, whether she agreed with the above proposal. On 6 April 2018, the appellant emailed the principal physiotherapist asking for a meeting to 'discuss this further'. The principal physiotherapist responded indicating that he did not feel there was any need to meet and asking for a response to his proposal by close of business. At 10.05 am on 6 April 2018, the appellant responded:[17]
You can use my wages and my other entitlements including annual leave and long service to reduce the amount I owe you.
I will keep repaying the money as I was doing earlier, but could you please cancel the criminal charges on me? I would like to settle this matter without the involvement of the police or court. Please [principal physiotherapist's first name]!
The principal physiotherapist responded, indicating that it was for police to decide what action would be taken, and encouraging the appellant to seek legal and other assistance.
[17] Exhibit 12.
The principal physiotherapist's evidence at trial
The principal physiotherapist gave evidence to the following effect at trial.
The principal physiotherapist confirmed that the appellant had been employed by the physiotherapy practice since 2008 and worked on a permanent part time basis. She worked as a receptionist and practice manager, and in the latter role was responsible for calculating employees' pay and transferring the money, paying business expenses and working with a bookkeeper to prepare tax statements.[18] He and the appellant were the only persons with access to the Business Transaction Account with separate logins. The principal physiotherapist did not know the appellant's login and, as far as he knew, she did not know his.[19]
[18] Trial ts 58 - 59.
[19] Trial ts 61 - 62.
After referring to the fact that the appellant also operated her own fashion business,[20] the principal physiotherapist gave the following evidence about his relationship with the appellant up to February 2018:[21]
Up until February 2018, how would you describe your relationship with [the appellant]?---Very good. She did her job well. I regarded her very well. We had a good working relationship. I felt as though we looked out for each other. We never had any harsh words through the whole 10 years pretty much. I can't remember any times of it being difficult. She helped me a lot and it felt as though she - it was just a - she was good at her job and I was very happy with her.
Did you have any concerns about her integrity?---No.
[20] Trial ts 62.
[21] Trial ts 63.
On 12 February 2018, after noticing irregular transactions on the Business Transaction Account which had been paid to the appellant's personal account,[22] the principal physiotherapist approached the appellant who was sitting at the front desk. He said that it seemed that the appellant had made a mistake and proposed that they go back over the past 5 years to see if other mistakes had been made. The appellant, who was clearly emotionally affected, said that she needed to talk to the principal physiotherapist in private. They walked to the principal physiotherapist's office where the appellant was shaking and said:[23]
I need to tell you that I've been stealing from you for the past two years. We've been going through a terrible time.
[22] Trial ts 63 - 65.
[23] Trial ts 66.
The appellant explained that her husband's information technology business had failed, and that she started to take money out of the Business Transaction Account. The appellant was crying, shaking and very distressed. When asked by the principal physiotherapist, the appellant indicated that she had taken between $10,000 and $20,000.[24] The principal physiotherapist described his reaction in the following terms:[25]
I was in shock as well. So I was trying to, you know, just piece together what was happening. But I felt very disappointed, just - it was a gut shot just to - you know, someone that you think is really on your side. You know, it felt like she was like really a - a core part of the team. Everybody loved her at work and she was kind of the heart of the team. And it was a big blow and I said, 'Look, we'll just - you know, if you've - you've made a very bad error. It's extremely bad but, you know, you just - we need to start figuring out how we're going to put this right', you know.
The appellant said that she would pay the money back and 'make this right'.[26]
[24] Trial ts 66 - 67.
[25] Trial ts 67.
[26] Trial ts 67.
The appellant remained employed and, on 14 February 2018, the appellant provided the principal physiotherapist with copies of her bank statements with amounts she had stolen circled. The appellant indicated that she believed the amount taken was about $142,000.[27] The principal physiotherapist and his wife checked their own statements for the Business Transaction Account, and calculated the amount taken as $162,000 ($5,000 of which had been repaid).[28]
[27] Trial ts 67 - 72; exhibit 3.
[28] Trial ts 74 - 76; exhibit 5.
The principal physiotherapist informed the appellant of his calculation of the amount owed, and asked her to pay back the money. The appellant said that she would do everything within her power to pay it back. She said that she could possibly go to her father, who lived in India, to see if he could help with the repayments. At his request, because he was concerned the appellant was a flight risk, the principal physiotherapist received the appellant's passports and prepared the letter dated 14 February 2018 referred to at [14] above.[29]
[29] Trial ts 86 - 89.
The appellant remained an employee, with her access to bank accounts removed, and agreed to make repayments. The appellant created and signed the letter dated 16 February 2018, referred to at [16] above, at her own initiative.[30] She also indicated that she had 'put some money back' because she felt guilty. The appellant was aware that the principal physiotherapist had to sell his house and move his children from a private school to a State school due to his own financial strain.[31] The appellant repaid $93,000, which she told the principal physiotherapist was money sent by her father, and said that she was trying to borrow money on her home.[32]
[30] Trial ts 89 - 91.
[31] Trial ts 91 - 92.
[32] Trial ts 95 - 96.
The principal physiotherapist spoke to the appellant by telephone on a Thursday evening, possibly 15 March 2018, and she told him that it seemed as if the loans 'wouldn't come through and no more money would come through'. The principal physiotherapist suggested that the appellant consider selling her house, as he had done. The appellant did not take that very well, and called in sick the next day.[33]
[33] Trial ts 101 - 102.
On 19 March 2018, the appellant again spoke with the principal physiotherapist by telephone. She told the principal physiotherapist that she had had enough and was not going to pay any more money back. She also said that she wanted her passports back. The appellant and the principal physiotherapist met at the physiotherapy practice clinic. He returned the appellant's passports and they made the handwritten note referred to at [17] above.[34]
[34] Trial ts 102.
After the passports were returned at the front desk of the clinic, the appellant told the principal physiotherapist that if he tried to get any more money back:[35]
[S]he would say to people that I'd been harassing her for the money, that she would ruin my reputation and ruin the clinic …
[35] Trial ts 103.
At that point the principal physiotherapist started to cry and the appellant said:[36]
It'll be okay. Just, you know, don't try to get any more money back.
The principal physiotherapist then told the appellant that he had tried to be reasonable, but she was no longer being reasonable and was threatening him, so she needed to go. He called another physiotherapist out to witness the appellant pack up her things and leave. He signed a letter terminating the appellant's employment the next day, 20 March 2018, and reported the matter to police on 21 March 2018.[37]
[36] Trial ts 103.
[37] Trial ts 103 - 104.
The principal physiotherapist maintained the above account in cross-examination and, when it was put to him, denied the account of events which the appellant would give in her evidence.
The appellant's evidence at trial
The appellant gave evidence at trial, to the following effect.
Examination
The appellant related her history of employment with the physiotherapy practice. She confirmed that she had been given a login to the Business Transaction Account, and she kept the access number and password on a card in a folder on the reception desk. She said that the principal physiotherapist had also given her his own login details as well as details for his personal accounts.[38]
[38] Trial ts 209 - 212.
The appellant said that she did not make the 98 payments, which were the subject of the charges, into her personal account, but was aware that they were being made.[39]
[39] Trial ts 233 - 234.
The appellant said that, in late April or early May 2016, the principal physiotherapist (who did not usually treat her) offered to give her some physiotherapy treatment, which she accepted. She went into his treatment room and lay face down on the treatment table with her top and bra off. As the principal physiotherapist was massaging her shoulders and they were conversing, his hand went onto her right side and squeezed her right breast for a couple of seconds.[40]
[40] Trial ts 226 - 229.
The appellant put her head out of the headrest and asked the principal physiotherapist what he was doing. The principal physiotherapist apologised and said that he did not know what he was thinking. The appellant said that she needed to report the incident and it was not right. The appellant gave the following evidence:[41]
And he said, 'No. No. Chaynika. No. Please, don't do that. I'm so sorry. I don't know what I was thinking. Don't tell anyone. It will destroy me, it will destroy my family. Please, don't say anything to anyone'. And … then he said, 'I'll - I'll pay you 200,000 over the years. Don't … have to say anything. It'll be between you and me. Don't … have to say anything to anyone'. … I was in a shock position.
The appellant gave evidence that she did not know what to do, and told the principal physiotherapist that what he had done was really wrong. She then left the clinic.[42]
[41] Trial ts 230 - 231.
[42] Trial ts 231.
On the next day she was working in the clinic, the appellant noticed that a payment, described as 'ARM office expense' or 'ARM', had been made from the Business Transaction Account into her personal account. The principal physiotherapist spoke to her and told her to enter the payment into the MYOB accounting software as a practice expense. It then hit the appellant that the principal physiotherapist was paying her not to say anything to anyone. She felt that the appellant was sorry for what he had done, and this was his way of apologising.[43]
[43] Trial ts 232 - 233.
The appellant continued working at the physiotherapy practice, and she and the principal physiotherapist did not speak about the incident or payments and their relationship became more formal. The appellant was aware of the payments being made into her account, accepted the payments and spent the money. In December 2017, the principal physiotherapist told the appellant that he had to sell his house and move his children to a State school. The appellant told the principal physiotherapist he did not have to keep making the payments, but he indicated that he had to keep paying.[44]
[44] Trial ts 234 - 235, 237, 240.
Because the appellant felt sorry for the appellant, she made some payments for business expenses (being the three payments totalling $5,706.79 made on 27 December 2017, 7 January 2018 and 8 January 2018).[45]
[45] Trial ts 237 - 238.
In mid-January 2018, the appellant had a further discussion with the principal physiotherapist. She said that she wanted to leave the clinic because she felt guilty about the payments. The principal physiotherapist told her that he wanted her to sign something because it would destroy him if she told people what had happened. The principal physiotherapist said that if someone found out about the payments to her then he would say she was stealing the money. The appellant told the principal physiotherapist she would not sign anything, and he told her that if she paid the money back nobody needed to know. The appellant told him that she did not have that kind of money. The principal physiotherapist said that the police would become involved unless she paid him back. The appellant gave evidence that:
He said, '[t]hink about it, Chaynika. All these transactions coming to you and, you know - no - nobody's going to believe you, it's your word against all this paperwork.
The appellant told the principal physiotherapist that she would try and arrange the money to pay him back.[46]
[46] Trial ts 240 - 243.
The appellant asked her father, who lived in India, for $100,000 on the basis that she was in financial trouble. She obtained her bank statements, circled the payments to be repaid and gave the statements to the appellant. She also provided her passports to the appellant and signed the letters dated 14 February 2018, referred to at [14] above, and 16 February 2018, referred to at [16] above, at the principal physiotherapist's direction.[47]
[47] Trial ts 243 - 249.
The appellant gave evidence that the 'cracking point' came for her when, after she had been unsuccessful in obtaining a loan, the appellant suggested that she sell her family home. She obtained her passports back on 19 March 2018, signed the handwritten note referred to at [17] above and said that she had to go. The principal physiotherapist told the appellant that he was going to report the matter to the police.[48]
[48] Trial ts 249 - 250.
The appellant accepted that she engaged in the email exchange referred to at [18] - [19] above. She said that she allowed the principal physiotherapist to keep her termination entitlements because she did not want to argue about the amount and thought that the principal physiotherapist could keep the money if that was what he needed.[49]
Cross-examination
[49] Trial ts 253 - 254.
The appellant maintained the above account under cross‑examination. The following points about the appellant's evidence under cross-examination may also be noted.
The appellant gave evidence that she was married with two children and the family arrived in Australia in 2005. She and her husband bought a house which was subject to a mortgage. She developed a community of good friends in Australia, completed a TAFE course and launched a fashion label in 2006. The appellant owned her own business called CVS Fashions. She had been presented a prestigious international award, called 'Iconic Women Creating a Better World for All', by the Women Economic Forum.[50]
[50] Trial ts 256 - 257.
The appellant accepted that she formed the view that the right thing to do would be to report the alleged sexual assault, and said that the principal physiotherapist came up with the idea of paying her $200,000 over a couple of years.[51] They never spoke about the incident again,[52] and the appellant never asked the principal physiotherapist to transfer money to her.[53] They never discussed the transactions.[54] The appellant was unable to give an explanation for the fact that, on occasions pointed out to her in cross-examination, the amount allegedly paid to her by the principal physiotherapist matched the amount required to cover her payments or put her personal account into a positive balance.[55]
[51] Trial ts 270.
[52] Trial ts 271.
[53] Trial ts 273.
[54] Trial ts 290 - 291.
[55] Trial ts 292 - 294.
The appellant accepted that she made entries concerning the payments into the MYOB accounting software knowing that they were not legitimate business expenses and knowing that the entries would be used to prepare tax statements lodged with the Australian Taxation Office.[56]
[56] Trial ts 278 - 282.
The appellant initially accepted that she was responsible for paying wages and, apart from times she was on extended leave, she made the payments. She could not recall the principal physiotherapist doing so.[57] However, when the proximity of payments into her account and various payments for wages and other business expenses was pointed out to the appellant, she said that the principal physiotherapist sometimes made the latter transactions.[58]
[57] Trial ts 294 - 295.
[58] Trial ts 296 - 301.
The prosecutor pointed out that, while the appellant had given evidence that the principal physiotherapist had demanded repayment in mid-January 2018, two payments were made from the Business Transaction Account to the appellant's personal account in early February 2018. The appellant responded that she thought the discussion occurred around mid-January, but she was not sure about the exact date and it could have been the beginning of February.[59]
[59] Trial ts 310.
Ground of appeal
The appellant was granted leave at the hearing of the appeal to amend her sole ground of appeal to the following terms:[60]
A miscarriage of justice was occasioned as a result of the incompetence of counsel by:
(a) failing to give the appellant any or any sufficient advice about whether it was open to, or whether to, adduce evidence of her good character at the trial; and/or
(b) failing to adduce evidence of the appellant's good character, including evidence of the fact that she did not have any criminal record, at her trial.
[60] Appeal ts 21.
Applications to adduce additional evidence in the appeal
The appellant and respondent both made a number of applications to adduce additional evidence in the appeal. However, most of those applications were not pursued once the ground of appeal was amended in the above terms. It was common ground at the appeal hearing that the appellant did not receive any advice from her trial counsel as to adducing evidence of her good character at trial, and that the appellant's trial counsel did not adduce any evidence of the appellant's good character. It was also common ground that the appellant did not have a prior criminal record.[61]
[61] Appeal ts 22 - 23.
In light of that factual common ground, the appellant sought only to adduce the evidence of the character witnesses on whom the appellant could have relied. The respondent did not seek to adduce any additional evidence. The only application ultimately pursued was the application in an appeal filed on 12 March 2020 for leave to rely on the following affidavits as additional evidence in the appeal:[62]
(1)the affidavit of Varun Arora sworn 27 February 2020;
(2)the affidavit of Nivedita Saddi sworn 27 February 2020; and
(3)the affidavit of Sapna Chawla sworn 27 February 2020.
[62] Appeal ts 23 - 24.
The respondent objected to the admissibility of some paragraphs of those affidavits. Those objections were resolved by agreement between the parties, and we have not taken account of the parts of those affidavits which were agreed to be excised.[63]
[63] Being pars 2.10, 2.12 and 2.13 of Ms Arora's affidavit; the second third and fourth sentences of par 2.9, and the whole of pars 2.10, 2.12 and 2.13 of Ms Saddi's affidavit; and pars 2.10, 2.12, 2.13 and 2.16 of Ms Chawla's affidavit.
In our view, the application in an appeal filed on 12 March 2020 should be allowed to the extent of admitting the evidence referred to at [53] above, subject to the excisions referred to at [54] above. As the applications were not ultimately pursued, we would dismiss the application in an appeal filed on 12 March 2020, so far as it seeks to adduce the appellant's affidavit as additional evidence in the appeal, and the other applications to adduce additional evidence.
Each of the persons referred to at [53] above deposed that they were close friends of the appellant who would catch up for coffee or a meal every two weeks and communicate by text or phone each week. Ms Chawla had worked for the physiotherapy practice for about 5 months when the appellant was on maternity leave in 2013 - 2014. Each of her friends said that the appellant was a very honest and trustworthy person of excellent character and reputation. They deposed that they were aware of the charges of which the appellant had been convicted, and would have given the above evidence at the appellant's trial if they were asked to do so.
The appellant's submissions
Senior counsel for the appellant put the appellant's case on appeal on two alternate bases.
First, the appellant sought to draw an analogy between the present case and cases, such as Craig v The Queen,[64] where the impact of inadequate legal advice on an accused's choice to give evidence may give rise to a miscarriage of justice. In Craig, the High Court recognised that a trial may be 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.[65] In such a case, 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 on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision.[66]
[64] Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202.
[65] Craig [32].
[66] Craig [33].
The appellant submits that, in the present case, the failure to give advice as to character evidence deprived her of a free and informed choice about whether or not evidence of good character would be sought and tendered at trial. That resulted in a fundamental unfairness in the trial, beyond a mere irregularity, regardless of whether it was a reasonable forensic decision not to adduce character evidence. The character evidence was relevant and admissible, and the failure to provide the appellant with advice about that matter deprived the appellant of a trial in which all relevant and admissible evidence was adduced.[67]
[67] Appeal ts 26 - 30.
Secondly, the appellant relies on the two stage test that this court recently reiterated in BGH v The State of Western Australia,[68] by reference to the High Court's decision in TKWJ v The Queen.[69] This involves the appellant showing that a material irregularity in the trial arose from trial counsel's conduct, and that there is a significant possibility that the irregularity affected the outcome. The appellant accepted that, in cases such as the present, this court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage.[70] Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. The question is whether there could there be any reasonable explanation for the decision. The test is objective in character.[71]
[68] BGH v The State of Western Australia [2020] WASCA 124 [46].
[69] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124.
[70] Appeal ts 24, 30, 34 - 35.
[71] This was also recently reiterated in George v The State of Western Australia [2020] WASCA 139 [108].
The appellant submits that the decision of her trial counsel not to adduce evidence of good character in the circumstances of the present case was not a rational decision capable of reasonable explanation. There was no forensic disadvantage to calling character evidence, which would have been relevant to the jury's assessment of the appellant's credibility and whether the appellant engaged in the dishonest conduct alleged by the prosecution.[72]
[72] Appellant's Submissions, par 17 - 18; appeal ts 32 - 35.
Advice as to character evidence
We do not accept the appellant's submission that an analogy is to be drawn between the present case, where no advice was given as to the calling of good character evidence, and a case where no advice is given as to an accused's election to give evidence. The material distinction between the two cases is that the decision to give evidence or not is a personal decision of the accused, while the decision as to whether or not to adduce evidence of good character is within the remit of trial counsel.
This distinction was fundamental to the High Court's decision in Craig. As the court noted in that case:[73]
As the appellant observes, the analysis in TKWJ is concerned with challenges to forensic judgments that are within counsel's remit. The objective test that TKWJ holds is to be applied to the determination of challenges of that kind takes into account the wide discretion conferred on counsel under our adversarial system of criminal justice. A necessary consequence of that discretion is that the accused will generally be bound by counsel's forensic choices. It is only where the appellate court is persuaded that no rational forensic justification can be discerned for a challenged decision that consideration will turn to whether its making constituted a miscarriage of justice.
By contrast, the appellant points out that his challenge is not to a forensic choice made by counsel but to the circumstance that counsel's incorrect advice was material to a forensic choice which was reserved for him to make personally. The appellant's argument is posited on the proposition that the accused's informed choice to give evidence is an essential condition of a fair trial according to law. At its widest, the argument is that any material error in legal advice on the accused's choice to give evidence denies that a choice not to give evidence is an informed choice and for that reason occasions a miscarriage of justice. The appellate court, on this analysis, does not stay to consider the causal relation between the incorrect advice and the conduct of the trial or its outcome. (emphasis added) (citation omitted)
[73] Craig [23] - [24].
The approach taken in Craig is therefore premised on the decision as to whether or not an accused gives evidence in his or her own trial being a forensic choice for the accused to make personally.
By contrast, the decision as to what other witnesses to call, and what evidence to adduce from witnesses other than the accused, is clearly a forensic judgement within counsel's remit. As Mazza JA (McLure P and Buss JA agreeing) noted in Durani v The State of Western Australia:[74]
A fundamental feature of a criminal trial is that defence counsel has, subject to the rules and ethical considerations that apply, complete freedom to run the trial, as he or she sees fit, in the interests of the accused. It is the responsibility of defence counsel to make the many and varied forensic decisions involved in a criminal trial, such as what evidence to call or not to call. These decisions are often difficult and finely balanced. They are matters on which reasonable minds can and often will differ. Counsel, with their assumed intimate knowledge of the strengths and weaknesses of their case will almost always be in a better position than an appellate court to judge these things.
The general position is that counsel's decisions bind the client, even when those decisions are made without, or are contrary to, instructions and even when those decisions involve errors of judgment or negligence. It is not a trial judge's role to tell counsel how to conduct a trial and it is not an appellate court's function to assess, with the benefit of hindsight, how a case could have been conducted so as to achieve a more favourable outcome from the perspective of the appellant.
[74] Durani v The State of Western Australia [2012] WASCA 172 [110] - [111].
In Durani, this general principle was applied to trial counsel's decision as to whether or not to adduce evidence of the accused's good character.
Because the decision as to whether or not to adduce evidence of an accused's good character falls within counsel's remit, the approach discussed in TKWJ is appropriate. The fact that advice is not provided on a question within counsel's remit does not give rise to an unfair trial or a miscarriage of justice in the circumstances of this case.
Material irregularity and miscarriage of justice
It is then necessary to consider the appellant's alternative argument based on TKWJ, and consider whether there was a material irregularity in the appellant's trial and, if so, whether there is a significant possibility that the irregularity affected the outcome of the trial.
As Mazza JA noted in Durani,[75] because the test of whether there is a material irregularity is objective, the question to be answered in relation to defence counsel's conduct is not, 'why did counsel act as he or she did?'. The correct question is, 'could there be any reasonable explanation for what counsel did?'.
[75] Durani [118].
Evidence of an accused's prior good character is admissible even when, as often happens, it throws little, if any, light on whether the accused committed the crime in question. The common law recognises that evidence of good character may be relevant to the credibility of an accused, on the basis that a person of good character is thought to be more likely to be an honest witness and is thus more believable. The common law also recognises that evidence of good character may be relevant to the guilt of an accused, on the basis that a person of good character is thought to be less likely to commit an offence and therefore less likely to have committed the offence or offences before the court.[76]
[76] Durani [106] - [107].
The mere fact that evidence of good character is admissible does not mean that the failure to adduce such evidence by counsel, who has a discretion as to what admissible evidence should be adduced, constitutes a material irregularity in the accused's trial. Depending on the circumstances of the particular case, counsel's failure to call evidence of an accused's good character may or may not amount to a material irregularity.[77]
[77] See, in addition to the decision in Durani itself, the cases referred to at [129] - [132] of that decision, the decision of the Victorian Court of Appeal in Parsons (a pseudonym) v The Queen [2016] VSCA 17 [78] - [84] and the decision of this court in ZHA v The State of Western Australia [2020] WASCA 101 [183] - [199].
In our view, it was a reasonable forensic decision for the appellant's trial counsel to have considered it unnecessary to adduce evidence of the appellant's good character in the present case, having regard to the following matters.
First, the appellant's apparent honesty was a premise of the prosecution case. The principal physiotherapist gave evidence as to the appellant's ostensible honesty and integrity in his evidence referred to at [22] - [24] above. The prosecutor's cross-examination of the appellant, referred to at [46] above, began by emphasising the point. It was common ground that the appellant had acted honestly in her role and given no reason to question her integrity between starting work at the physiotherapy practice in 2008 and the first alleged stealing in May 2016. The appellant's reputation as an honest and trustworthy person was not a fact in contention which required further evidence to prove. It was, on the prosecution case, a characteristic of the appellant which put her in the trusted position of having access to the bank accounts of the physiotherapy practice.
Secondly, there was nothing to suggest that the appellant had any prior convictions and nothing which might give the jury cause to apprehend that she might have previously offended.
Thirdly, the evidence of reputation which the appellant could have adduced, summarised at [56] above, was weak. The evidence before this court is from persons with whom the appellant socialised from time to time. Those persons do not give evidence of having interacted with the appellant in a business context, or of having had occasion to place trust in the appellant in financial or other matters.[78]
[78] This may be contrasted with decisions involving a failure to adduce 'impressive' or 'powerful' character evidence: see the cases referred to in Durani at [129] - [132].
Fourthly, on her own evidence the appellant had acted dishonestly. She claimed to have accepted over $162,000 in 'hush money' for not reporting conduct which she knew to be wrong. She accepted that she entered the payments, which she appreciated were not legitimate business expenses, in accounts which she appreciated would form the basis of tax statements. The appellant's own evidence involved her engaging in disreputable conduct despite her good reputation. In that context, trial counsel could reasonably consider that evidence of the appellant's good character would not materially improve the prospects of a jury accepting the appellant's evidence or considering that it raised a reasonable doubt as to her guilt.
Fifthly, adducing evidence from the proposed character witnesses was not without forensic risk to the appellant's case at trial. As the respondent's appeal counsel noted,[79] the trial prosecutor could have cross-examined those witnesses as to the consistency of the appellant's admitted dishonesty with those witnesses' view of her integrity. That would have emphasised an unattractive feature of the appellant's case during the evidence of the last witnesses the jury would have heard. It could reasonably be taken to illustrate the appellant's ability to act dishonestly (on her own evidence) while maintaining a trustworthy facade.
[79] Appeal ts 40 - 43.
Having regard to all of the above matters, the appellant's trial counsel could reasonably have taken the view that in the present case it was unnecessary (and potentially counterproductive) to adduce evidence of the appellant's good character. In these circumstances, trial counsel's decision not to adduce evidence of the accused's good character did not give rise to a material irregularity in the appellant's trial.
Even if material irregularity were to be established, in our view there is no significant possibility that, had the additional evidence as to the appellant's good character been introduced, the verdict might have been different. The evidence of the principal physiotherapist was internally consistent, maintained under cross-examination and consistent with the documentary evidence. By contrast, there were a number of compelling reasons for positively rejecting the appellant's account:
(1)The proposition that the principal physiotherapist, who was facing his own financial difficulties, would offer to pay the appellant $200,000 and actually pay her $162,000 because he squeezed her right breast for a couple of seconds strained credulity.
(2)The appellant's evidence was inconsistent with the text messages she exchanged with the principal physiotherapist, particularly the concluding words - '[t]hanks for understanding' - to the message of 14 February 2018 quoted at [15] above.
(3)The appellant's account was inconsistent with the email messages referred to at [18] - [19] above, in which the appellant accepts that she owes money and does not contradict statements that she had stolen money.
(4)The appellant's evidence offered no reasonable explanation for the temporal proximity of the payments into her account and payments of legitimate business expenses for which she, as practice manager, was responsible. The appellant's resort in cross-examination to the contention that the principal physiotherapist made the legitimate payments was inconsistent with her earlier evidence (see [49] above).
(5)The appellant was also unable to give any reasonable explanation as to why the principal physiotherapist would continue to make payments into her personal account after demanding repayment of money already paid. The appellant's attempt to change her evidence as to when the principal physiotherapist demanded repayment appeared to be a response to this inconsistency being pointed out to her in cross-examination.
(6)The appellant was evidently under financial pressure and payments from the Business Transaction Account often reflected what was required to place or keep the appellant's personal account in a positive balance or allow her to cover payments from her personal account. On the appellant's evidence, the principal physiotherapist had no way of knowing this, and the fact that the amounts paid often reflected the amounts the appellant required was a highly unlikely coincidence.
In our view, it is fanciful to suggest that, in a context where the appellant's reputation for honesty and integrity was a premise of the prosecution case, the above difficulties in the appellant's case might have been overcome by evidence of the appellant's social friends as to her reputation for honesty and evidence as to the appellant's lack of prior convictions. In our view, there is no significant possibility that, if additional evidence of the appellant's good character had been adduced, the jury might have accepted the appellant's evidence or considered that her evidence, combined with the additional evidence of good character, raised a reasonable doubt as to the appellant's guilt of the charged offences.
Orders
For the above reasons, the appellant's sole ground of appeal is not established and had no reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed.
For the above reasons, we would make the following orders in the appeal:
(1)The appellant's application in an appeal filed on 12 March 2020 is allowed to the extent of admitting the following affidavits (subject to the excisions referred to at [54] above]) as additional evidence in the appeal:
(a)the affidavit of Varun Arora sworn 27 February 2020;
(b)the affidavit of Nivedita Saddi sworn 27 February 2020; and
(c)the affidavit of Sapna Chawla sworn 27 February 2020.
(2)The appellant's application in an appeal filed on 12 March 2020 is otherwise dismissed.
(3)The respondent's application in an appeal filed on 7 April 2020, the appellant's application in an appeal filed on 12 May 2020, the respondent's application in an appeal filed on 29 July 2020, the appellant's application in an appeal filed on 25 August 2020 and the appellant's application in an appeal filed on 16 September 2020 are dismissed.
(4)Leave to appeal is refused on the sole ground of appeal.
(5)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell23 OCTOBER 2020
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