Sharman v Police

[2015] SASC 159

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

SHARMAN v POLICE

[2015] SASC 159

Judgment of The Honourable Justice Vanstone

7 October 2015

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISCONDUCT OF COUNSEL - IN GENERAL

Appeal against convictions for assault and assault causing harm - whether defence of the appellant was conducted with flagrant incompetence - whether necessary to show that the incompetence affected the result of the trial.

Held:  appeal allowed.

Criminal Law Consolidation Act 1935 (SA) s 353, s 353(1); Magistrates Court Act 1991 (SA) s 42, s 42(5); Criminal Appeal Act 1912 (NSW) s 6(1), referred to.
TKWJ v The Queen (2002) 212 CLR 124, discussed.
Wigg v Architects Board (SA) (1984) 36 SASR 111; Police v Cadd (1997) 69 SASR 150, considered.

SHARMAN v POLICE
[2015] SASC 159

Magistrates Appeal:   Criminal

1. VANSTONE J:     On 27 May 2015 the appellant stood trial before a magistrate on charges of assault and aggravated assault causing harm.  The trial occupied one day only and the appellant was convicted for both counts.  He now appeals against those convictions of the basis that his counsel conducted the trial in an incompetent manner.

   Background

2. The prosecution case was that the incident giving rise to the charges occurred at about half past two or three o’clock on the morning of 10 May 2014.  It was alleged that the appellant had come to the home of the prosecution witness, Mr Shaw, that he had entered the home and there assaulted the victim of count 2, Ms Lanc, by repeatedly kicking her.  It was further alleged that her son Jordan, who was nine years old, protested against the appellant’s actions and was then pushed through a sliding glass door by the appellant, causing Jordan to suffer a gash to his forehead.

3. Ms Lanc and the appellant were in some sort of relationship at this time, although Ms Lanc had been staying with Mr Shaw for a period.  By the time of the trial Ms Lanc had indicated that she was not prepared to give evidence, and neither she nor Jordan were called by the prosecution.  Indeed, as will be seen, Ms Lanc was called as a defence witness.  However, Mr Shaw claimed to have witnessed both incidents and gave clear and coherent evidence about them, which was accepted by the magistrate.  In support of that eye-witness evidence, the prosecution tendered photographs of the broken glass door and the scene generally, as well as medical evidence relating to Jordan’s injuries.

4. The appellant gave evidence in his defence.  He said that he had arrived at Mr Shaw’s home to return Ms Lanc’s car and to receive repayment of a loan which he had made recently to Ms Lanc for Mr Shaw’s benefit.  He said that he and Ms Lanc argued about that money and at one stage he took hold of her jumper, causing her to fall, dislodging the glass door from its rail.  He denied having kicked her.  He said that Jordan intervened, and accidently hit the appellant in the testicles.  The appellant remonstrated with Jordan and that led to Jordan accidentally running into the glass door.  The magistrate described the appellant’s evidence as “longwinded and rambling”.  He said it lacked detail and coherence and was unbelievable.  The appellant was found to be evasive and “completely unreliable”.  The magistrate rejected out of hand the appellant’s suggestion that Jordan had caused his own injuries by colliding with the glass door.

5. As mentioned, the appellant called Ms Lanc as part of his defence case.  That was always a forensically dangerous tactic, since Ms Lanc had given a five page signed statement to police soon after the incident, in which she claimed that the appellant had hit her repeatedly and had kicked her while she lay on the ground.  When cross-examined on that statement she said that she had lied to the police.  She explained that she told the police that the appellant hit her because “I didn’t know what to say”.  She went on to say that Mr Shaw had wished her to get a restraining order against the appellant and that too led her to claim that the appellant had assaulted her.  Ms Lanc was also cross-examined to the effect that she had told a doctor that Jordan had been pushed by a man into a glass door.  Not surprisingly, the magistrate rejected Ms Lanc’s evidence.  He found she was lying in her account to the Court.

   Arguments on appeal

6. Upon the appeal Mrs M Shaw QC, for the appellant, argued that defence counsel’s conduct of the trial amounted to flagrant incompetence.  Mrs Shaw referred to the judgment of McHugh J in TKWJ v The Queen (2002) 212 CLR 124 at 149 and following. The appeal in that case was brought under s 6(1) of the Criminal Appeal Act 1912 (NSW) which closely conforms with the wording of s 353(1) of the Criminal Law Consolidation Act 1935 (SA).

7. In TKWJ McHugh J spoke at [76] of the circumstances in which conduct of counsel might deprive a defendant of a fair trial according to law. However, his Honour went on to say at [78] that it was not always necessary to show as much. The critical issue was whether a miscarriage of justice had occurred. That was said, at [79], to subsume two issues. Those were whether counsel’s conduct resulted in a material irregularity in the trial, and whether there was a significant possibility that the irregularity affected the outcome. McHugh J said that where flagrant incompetence was shown it was likely that the appellant would have established a material irregularity and that this would provide a “stepping stone” to the finding of a miscarriage of justice: [80]. Once a material irregularity was established it was for the court to determine whether there was a significant risk that it had affected the outcome. If it had then a miscarriage of justice would have occurred: [97].

8. The asserted incompetence in TKWJ was a failure to either call character evidence or seek an advance ruling as to whether such evidence would effect a throwing away of the shield.  All of the High Court Justices determined that the appeal should be dismissed, but there were four different judgments.  In all judgments there was consideration of the discretion vested in trial counsel as to the way in which the trial was conducted.  All Justices agreed that the decision taken by trial counsel was one reasonably open to him.  Accordingly, no incompetence was made out and there was no miscarriage of justice.

9. The present appeal is brought pursuant to s 42 of the Magistrates Court Act 1991 (SA). There are of course material differences between s 42 and the Criminal Law Consolidation Act section and indeed between the nature of an appeal under the respective sections. Importantly, in the present context the powers of this Court are set out in s 42(5) of the Magistrates Court Act 1991 (SA) and are as follows:

   (5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:

   (a)     it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;

   (b)     it may remit the case for hearing or further hearing before the Magistrates Court;

   (c)     it may make any other order (including, subject to subsection (5a), an order for costs) that may be necessary or desirable in the circumstances.

   Relevantly, there is no reference in s 42(5) to a miscarriage of justice or a substantial miscarriage of justice, but rather, the Court is simply given the power to confirm, vary or quash the judgment subject to the appeal and remit the case for rehearing.

10. A critical difference between the present case as compared with TKWJ and indeed as compared with most of the cases dealing with suggested incompetence of counsel, is that those cases are almost all concerned with one or more forensic decisions taken by counsel for reasons that counsel, presumably, thought to be good ones.  Here, it is plain from the affidavit of trial counsel which has been tendered upon this appeal, that he went into the hearing totally unprepared for it.  He was not expecting a trial to occur on that day, because he was forewarned that Ms Lanc would not give evidence for the prosecution.  He was in possession of a statutory declaration made by Ms Lanc which stated that she wished all charges against the appellant to be withdrawn.  Trial counsel further held the view that Mr Shaw did not wish to attend at a trial.  Therefore he believed that on the trial date the only two charges remaining on the information would be dismissed.  For these reasons he made no preparations for the trial.  He neither obtained any written instructions from the appellant setting out the appellant’s account of events or his instructions on the various statements which had been disclosed by the prosecution, nor explored the availability of evidence which might support his client’s case.

11. In support of the appeal Mrs Shaw pointed to the fact that trial counsel’s cross-examination of the witness Mr Shaw was wholly inadequate.  Although it was put to Mr Shaw in a general way that his evidence was not accepted, there was no attempt to put the appellant’s instructions to him.  As well, he was not cross-examined on two important topics which could have affected his credibility, namely on text messages which he had allegedly sent to Ms Lanc potentially contradicting his evidence about the nature of his relationship with her, and about the loan which the appellant claimed he had advanced for Mr Shaw’s benefit. 

12. Mrs Shaw then pointed to the fact that in his evidence, the appellant was led in examination in such a way as to result in a rather scattergun account.  A reading of the transcript shows a certain degree of frustration in the appellant as to the eliciting of his version of events.  Furthermore, Mrs Shaw argued that the decision to call Ms Lanc as a defence witness was forensically unjustifiable.  Trial counsel had no instructions from her and, moreover, knew or should have known that her statements to police supporting the prosecution case would be put to her. 

13. It is true, as Ms J Litster for the respondent forcefully argued, that the magistrate made very firm findings about the evidence of the three critical witnesses.  Plainly, the case did not turn on a knife edge.  Mr Shaw’s evidence reads well and, on the face of it, was the evidence of an independent witness.  Ms Litster argued that no miscarriage of justice could be shown.

    Consideration

14. In Wigg v Architects Board (SA) (1984) 36 SASR 111 Cox J considered the nature of an appeal under the Architects Act 1939-1975 (SA) and in so doing, considered the various types of appeals.  His Honour said that the first kind of an appeal was “strictly so called”.  Next was described an appeal by way of rehearing, which the current proceeding is.  At 113 Cox J said:

    This is a rehearing on the documents, but with a special power to receive further evidence on the appeal. The latter power is necessary, because the question on a rehearing of this kind is whether the order of the court below ought to be affirmed or overturned in the light of the material before the appeal court at the time it hears the appeal.

    His Honour went on to contrast this with an appeal de novo.

15. In Police v Cadd (1997) 69 SASR 150 Lander J discussed the nature of an appeal under s 42 of the Magistrates Court Act 1991 (SA). He said (at 189):

    It is an appeal by way of rehearing which means a rehearing “of the cause at the date of the appeal, that is ‘by trial over again on the evidence used in the court below;  but there is special power to receive further evidence’:  in Re Chennell: Jones v Chennell (1878) 8 Ch D 492)”, per Mason J in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 at 619. See also Wigg v Architects Board (SA) (1984) 36 SASR 111. An appeal under the Justices Act 1921 (SA) was in the nature of a rehearing:  Gray v Jones [1948] SASR 201.

    The other judges making up the court did not find it necessary to discuss this issue but I do not consider that there is any controversy in what Lander J said.

16. In circumstances where the appellant claims that conduct of his trial by counsel was incompetent it seems to me that the contrast between the nature of an appeal under s 42 of the Magistrates Court Act 1991 (SA) as against s 353 of the Criminal Law Consolidation Act 1935 (SA) might be important. I consider that there is some scope for saying that if the appellant satisfies the court that there has been a miscarriage of justice in the sense of a material irregularity, then there is no warrant for the court to go further to determine whether that irregularity had an impact on the result of the trial.

17. It is most regrettable that defence counsel allowed this trial to proceed in circumstances where he was entirely unprepared to act effectively for the appellant.  In his affidavit he frankly acknowledged that he should have sought an adjournment and did not.  The charges were serious and, the appellant having engaged a legal practitioner, was entitled to expect that he would be properly prepared to represent his client to the best of his ability.  I consider that allowing the trial to proceed when he was in such a state of disorganisation and dereliction of his duty to his client reflects very poorly on trial counsel.

18. Ms Litster’s argument that the appellant’s evidence effectively collapsed under its own weight has some strength to it.  The magistrate was plainly completely dismissive of his account and of his credibility.  Nonetheless, that evidence was given in a context where there had been no real challenge to Mr Shaw’s account.  Such ammunition as the appellant had was simply not utilised.  I think the facts of this matter disclose that there was a material irregularity in relation to the running of the trial caused by counsel’s neglect.  I do not consider that I have to go further and determine whether that irregularity had an impact on the result of the trial.  In my view the appellant was deprived of any effective presentation of his case and in those circumstances should succeed on this appeal.

19. I note that trial counsel allowed his practising certificate to lapse as at 30 June 2015.  Notwithstanding that fact I consider that it is appropriate to refer this judgment to the Legal Profession Conduct Commissioner.

    Conclusion

20. For these reasons I would allow the appeal.

21. The orders I make are:

    1.     allow the appeal;

    2.     set aside the verdicts of the magistrate;  and

    3.     remit the matter to the Magistrates Court for a new hearing.