Smythe v The Queen
[2018] NTCCA 6
•22 March 2018
CITATION:Smythe v The Queen [2018] NTCCA 6
PARTIES:SMYTHE, Patrick George
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Northern Territory jurisdiction
FILE NO:CA 2 of 2016 (20831329)
DELIVERED: 22 March 2018
HEARING DATES: 5 and 6 June 2017
WRITTEN SUBMISSIONS: 28 June, 24 July and 28 July 2017
JUDGMENT OF: Grant CJ, Blokland and Hiley JJ
CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MATTERS CONNECTED WITH CONDUCT OF DEFENCE – APPEAL AND NEW TRIAL
Application for an extension of time and leave to appeal – whether counsel refused to allow the applicant to give evidence in his defence – whether counsel failed to advise the applicant that the decision whether to give evidence was his – whether counsel failed to call an important witness in the applicant’s defence – applicant failed to establish counsel refused to allow him to give evidence in his defence, or did not adequately advise of right to give evidence – explanation and legitimate forensic basis for not calling other witness – decisions did not deprive applicant of fairly open chance of acquittal – no substantial miscarriage of justice – application to extend time dismissed – application for leave to appeal dismissed.
Criminal Code s 410, s 417, s 429
Bass v The Queen [2014] VSCA 350, Crabbe v The Queen (1990) 101 FLR 133, Craig v The Queen[2018] HCA 13, Edwards v R [2009] NSWCCA 199, Etchell v R [2010] NSWCCA 262, Green v The Queen (1989) 95 FLR 301, Nicholls v R [2016] VSCA 250, Nudd v R (2006) 225 ALR 161, R v Birks (1990) 19 NSWLR 677, R v Gregory [2002] NSWCCA 199, R v Heeremans (2007) 249 LSJS 49, R v The Queen [2008] SASC 35, Stamp v The Queen [2012] NTCCA 15, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, The Queen v King [2009] VSCA 190, TKWJ v The Queen (2002) 212 CLR 124, referred to.
REPRESENTATION:
Counsel:
Appellant:S Apps
Respondent: PM Usher
Solicitors:
Appellant:Koerner Lloyd Lawyers
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 100
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINSmythe v The Queen [2018] NTCCA 6
No. CA 2 of 2016 (20831329)
BETWEEN:
PATRICK GEORGE SMYTHE
Applicant
AND:
THE QUEEN
Respondent
CORAM: GRANT CJ, BLOKLAND and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 22 March 2018)
THE COURT:
Introduction
Background
Grounds of appeal
Applications for extension of time and leave to appeal
Relevant principles
Explanation for delay
The evidence before this court
Pre-trial meetings
The voir dire
The evidence
Olsson J’s remarks
The trial proper
Mr Read’s note dated 28 October 2009
Mr Read’s note dated 2 November 2009
Post-trial reviews
The question arising on Grounds 1 and 2
Evidence concerning the failure to call the applicant
The applicant
Peter Smythe
Madeleine Smythe
Ian Read
Julie Franz
Submissions and consideration
Miscarriage of justice
The question arising on Ground 4
The evidence concerning the failure to call Tanya Smythe
Tanya Smythe
Ian Read
Submissions and consideration
Conclusions and disposition
Introduction
The applicant seeks to appeal against his conviction on 3 November 2009 following a trial by jury of the offence in count 1 on the indictment dated 23 October 2009, namely having maintained an unlawful relationship of a sexual nature with a child under the age of 16 years between 18 July 1995 and 30 November 1998 at Palmerston and other places in the Northern Territory.[1] The child (HM) was his former stepdaughter. The applicant was sentenced to eight years imprisonment with a non-parole period of five years and eight months. The sentence was ordered to commence on 25 May 2009.
Because time within which to give notice of appeal or application for leave to appeal expired on 1 December 2009 the applicant requires an extension of time under s 417 of the Criminal Code. He applied for such an extension on 1 February 2016 and served that application on the Director of Public Prosecutions (DPP) on 25 February 2016. Because his proposed appeal does not involve a question of law alone he also requires leave under s 410(b) of the Criminal Code.
On 6 June 2016, a single judge refused the application for an extension of time and refused leave to appeal. On 10 June 2017, the applicant made application under s 429(2) of the Criminal Code for the matter to be determined by the Court of Criminal Appeal constituted by three judges.
No complaint is made about the summing up or any other conduct of the trial judge. The applicant’s complaints all relate to the conduct of the barrister who appeared on his behalf at the trial, Ian Read, who was employed by the Northern Territory Legal Aid Commission (NTLAC). Affidavit evidence of the applicant and a number of other people was filed by the applicant and affidavits of Mr Read and Julie Franz, a solicitor employed by the NTLAC, were filed by the respondent. The deponents gave evidence during the hearing of this application.
Background
The offending relevant to the charge was alleged to have occurred on various occasions and at various locations in Queensland, Western Australia and Darwin between October 1993 and November 1998. HM was born on 8 March 1983. Her mother (MM) married the applicant in January 1994. The family began living in Darwin in 1995. The applicant and MM separated on 30 November 2007.
The applicant was arrested in South Australia on 18 November 2008 and was in custody until 20 April 2009 when he was released on bail. The trial commenced with voir dire proceedings on 26 October 2009. The trial before the jury took place between 28 October 2009 and 3 November 2009. The NTLAC also represented the applicant during sentencing proceedings which concluded on 20 November 2009.
The voir dire hearing which was conducted on 26 and 27 October 2009 concerned the admissibility of certain evidence. This included evidence of a pretext telephone conversation between MM and the applicant on 7 March 2008 (which was wholly excluded), and evidence of certain admissions made by the applicant to MM on 30 November 2007 when she told the applicant to leave the family home (the admissions of 30 November 2007). The applicant gave evidence during the voir dire. For reasons which will become apparent, it is significant that in the course of giving his ruling in the voir dire on 27 October 2009 the trial judge expressed some reservations about the reliability of the applicant’s evidence.[2]
The trial proper began on Wednesday, 28 October 2009. The Crown called HM, MM, HM’s younger brother (RM), and James Parkhill. On Friday, 30 October the defence called three witnesses – Justin Bray (HM’s husband), and Dominic and Lorelle Pappalardo (previously neighbours of the applicant and his family for about 10 years in Darwin). The trial was then adjourned to the following week for addresses and summing up. The jury returned its verdict of guilty on count 1 on Tuesday, 3 November 2009.
Grounds of appeal
The proposed grounds of appeal are:
(a)that the applicant’s counsel refused to allow the applicant to give evidence in his defence (Ground 1);
(b)that the applicant’s counsel failed to adequately advise the applicant that the decision whether the applicant gave evidence before a jury was his and his alone (Ground 2);
(c)that the applicant’s counsel failed to adequately cross-examine the prosecution witnesses central to the case upon whom the prosecution principally relied, namely HM and MM (Ground 3); and
(d)that the applicant’s counsel failed to call an important potential witness as part of the applicant’s defence, namely his sister-in-law Tanya Smythe (Ground 4).
During the hearing of the appeal counsel for the applicant abandoned Ground 3.
Applications for extension of time and leave to appeal
Relevant principles
The principles applicable to the determination of an application to extend time are well-established. They were summarised by Rice J in Green v The Queen as follows:[3]
(1) An extension of time within which to appeal from conviction will not be granted as a matter of course. In every case the Court will require substantial reasons to be shown why an extension should be made.
(2) Where an appeal is lodged after the lapse of a considerable period of time, exceptional circumstances have to be established before the Court will be justified in granting an extension of time.
(3) After a lengthy delay, the Court will require exceptional circumstances before granting an extension unless there has been a manifest miscarriage of justice or unless the Court is satisfied that there are such merits in the proposed appeal that it would probably succeed.
(4) The greater the delay which has occurred before the application is made, the more difficult becomes the task of the applicant.
(5) The Court itself, in the administration of justice, has its own interest in seeing that time limits are observed and that an application for the extension of time is properly justified.
It is clear from the authorities that the court will usually require some satisfactory explanation as to why an appeal or application for leave to appeal was not brought within the time allowed, especially if the delay is considerable.[4] In Edwards v R, Johnson J stated:[5]
[13] The principle of finality of litigation is relevant on an application such as this. Although it may be, as here, that the Crown cannot point to any actual prejudice because of the delay in bringing the application, there is a public interest in avoidance of delay, and the finality of litigation, in the area of sentencing as with litigation generally. In many cases, the prospect of sentence being reopened long after the event may impact adversely upon victims of crime.
In R v Gregory, Hodgson J said:[6]
[41] ... an important factor in a decision as to whether an extension of time should be granted is whether the interests of justice require it; but the interests of justice must take into account not just the interests of the applicant, but also those of the Crown (and the community represented by the Crown), and of the administration of law generally. There are many factors relevant to those matters, including the powerful considerations supporting the finality of judicial decisions.
The greater the delay the more exceptional the reasons must be for it.[7] It has been held that delays of six months or more require "very exceptional circumstances" or "special and substantial reasons".[8]
Explanation for delay
The explanations proffered by the applicant for the delay in making application for leave to appeal were, in broad terms, impecuniosity up until early 2012; logistical difficulties thereafter in giving and receiving instructions; problems encountered in commissioning expert evidence in relation to the applicant’s memory dysfunction; and uncertainty as to whether all relevant materials had been produced by the NTLAC.
In his affidavit in support of his application for leave to appeal and an extension of time,[9] the applicant deposed that in 2010 and 2011 he did not have funds to instruct a solicitor to review his conviction. He began receiving an incapacity pension in early 2012, and thereafter was in a position to fund a review of the conviction. Members of his family arranged for Michael Lloyd, a South Australian solicitor from a firm named Barossa Chambers, to perform that review. Mr Lloyd first saw the applicant at the Berrimah Correctional Centre in July 2013. Since then the applicant has communicated with his solicitor by teleconference.
In the affidavit sworn by Mr Lloyd in support of the application for an extension of time,[10] he deposed that he was instructed to act for the applicant on 8 December 2011.[11] The applicant's brothers, Richard and Peter Smythe, gave Mr Lloyd six folders of materials that related to the criminal proceedings. Mr Lloyd deposed that he had considerable difficulty communicating with the applicant because he was serving his sentence at the Berrimah Correctional Centre in Darwin. In August 2012, the applicant advised Mr Lloyd that he was in a financial position to fund an appeal if so advised.
Mr Lloyd says he considered that the applicant’s principal complaint was that his counsel had refused to allow him to give evidence in his defence, notwithstanding his express strong desire to do so.[12] Mr Lloyd says he “had to write to the NTLAC to ask for their papers about the trial”.[13] He said his research was hindered by the fact that NTLAC appeared not to have obtained a formal statement of instructions from the applicant in relation to the events about which HM and MM attested in particular. This appeared to Mr Lloyd to be consistent with the applicant's complaint that a formal statement had never been taken from him in preparation for trial.[14]
Mr Lloyd deposed that he made enquiries of a number of psychiatrists concerning the possible relationship, if any, between the applicant’s post-traumatic stress disorder (PTSD) and his memory loss at or about the time of the admissions of 30 November 2007.[15] Mr Lloyd also deposed to the time involved in obtaining instructions from the applicant and engaging with counsel due to the fact that they were in Darwin and Adelaide respectively, and his office was at the Barossa Valley. He says that at one stage it became necessary for him to travel to Darwin for three days to meet with the applicant so that he could clarify certain issues with him.[16]
Mr Lloyd said that his review also involved “consideration of the tendency or propensity evidence and recent complaint evidence in light of the recent decision of the Northern Territory case of Murdoch and The Queen”.[17] Mr Lloyd said that although the applicant’s family had informed him of that case in early 2015 he did not have details of it until late October 2015.
During the conduct of the present application, counsel for the applicant drew attention to the logistical difficulties which presented to the applicant’s solicitors in getting instructions, and to the other difficulties necessarily involved in cross-checking instructions with various members of the applicant’s family “each of whom had a somewhat different recollection of the issue” raised by grounds 1 and 2.[18] Counsel for the applicant also drew attention to the fact that the applicant first considered the possibility of an appeal on the present grounds after he spoke to fellow prisoners.[19] However, as counsel for the respondent pointed out in his submissions, Mr Lloyd deposed that the principal complaint was identified from his reading of the evidence and in discussions with the applicant's family members – and in particular Richard Smythe – rather than coming directly from the applicant.[20]
Counsel for the applicant also submitted that there were doubts as to whether all relevant documentation had been disclosed, suggesting that the pursuit of those materials caused further delays.[21] Counsel for the applicant also stressed the “inordinate length of time” spent by Mr Lloyd “attempting to engage a psychiatrist who may be interested in providing an opinion” concerning a link between the applicant’s PTSD and his memory loss.[22] Counsel submitted that the basis for Ground 4 “only came to light in the course of Mr Lloyd’s investigations of other issues, and when he did learn of it, he had to make further enquiries about the historical incidents referred to in [Tanya Smythe’s] typed notes".[23]
Counsel for the applicant sought to characterise the application as "exceptional” because, unlike most appeals, it does not involve a challenge to the rulings or summing up of the trial judge; because the merits of the proposed appeal are such that it would probably succeed; and because the matter involves a miscarriage of justice.[24]
Mr Lloyd also deposed that: “The Department of Public Prosecutions have been given notice of the pending appeal in 2010, 2012 and 2013.”[25] The first such notice referred to was presumably the letter from NTLAC dated 26 November 2009 informing the DPP that Mr Smythe had applied for aid to investigate an appeal against his conviction and sentence, and that if aid was granted it was unlikely that the appeal papers would be filed in time.[26] The 2012 “notice” was presumably Mr Lloyd’s letter to the DPP dated 5 March 2012, in which he asked for a copy of the statement taken from HM’s partner at the time of the initial complaint or, if no such statement was taken, an explanation as to why that was so.[27] The third “notice" was Mr Lloyd’s letter to the DPP dated 21 February 2013 (discussed further below).[28]
During the hearing of the present application, counsel for the respondent drew attention to the fact that on 17 August 2010 the NTLAC had sent all papers in relation to the applicant’s trial to the applicant's brother, Richard Smythe.[29] That was done at the applicant’s direction. There was then a delay in excess of 12 months before Mr Lloyd was instructed in December 2011. Thereafter, a further 12 months elapsed before any form of complaint was made about the conduct of the applicant’s trial. That complaint was contained in a letter from Mr Lloyd to Mr Read dated 9 January 2013 (discussed further below in the context of the post-trial reviews).[30]
On 21 February 2013, three days after Mr Read had provided a detailed response dated 18 February 2013 (also discussed further below),[31] Mr Lloyd wrote to the DPP and referred back to his previous letter of 7 May 2012. He said:[32]
We had hoped to have this matter finalised by now but the tyranny of distance, communication difficulties and the complexity of the matter have not made this possible.
We advise that we have one issue to finalise in this matter before we are in a position to lodge an appeal. We anticipate this should be done in the near future.
We do not want to file a ‘blanket appeal’. We want to be able to file an appeal that is restricted to any real issue we identify.
(Emphasis added)
No further indication was given as to the nature of the “one issue” yet to be finalised, or that any kind of appeal was still to be pursued, until three years later in February 2016. That was when the applications for leave to appeal and an extension of time within which to appeal were filed in this court. Nor was any satisfactory explanation provided as to why so many years elapsed between the time when Mr Lloyd received Mr Read’s detailed letter of 18 February 2013 and when he obtained affidavits from the applicant, Madeleine Smythe, Tanya Smythe and Peter Smythe, notwithstanding that he had been thoroughly briefed with the trial materials in November 2011 and was funded to proceed by late 2012.
The applicant, as early as November 2009, and subsequently his solicitors, were fully aware of the requirement to act expeditiously in filing the necessary applications in order to pursue an appeal. The fact that an appeal may have been foreshadowed, albeit obliquely, is of little relevance in circumstances where no indication of the likely grounds was provided until February 2016.
We do not consider that the applicant has provided any satisfactory explanation as to why he took more than six years to file his applications or to notify the DPP of likely grounds of appeal. In these circumstances the applicant “has small, if any, claim to the exercise of the discretion of the Court in his favour”[33] and the application for an extension of time should be refused unless to do so would leave a miscarriage of justice unremedied. The applicant must demonstrate that “there are such merits in the proposed appeal that it would probably succeed”.[34]
The evidence before this court
The material before this court for the purpose of determining the applications included:
(a)the transcripts of the voir dire[35] and the trial;[36]
(b)Mr Read’s records, in particular:
(i) his notes of his instructions and case theory;[37]
(ii) statements of the applicant [38] and his brother Peter Smythe;[39]
(iii) his notes and memoranda made during and immediately after the trial;
(c)handwritten notes made by Julie Franz made in August 2013 (Ex A1);
(d)typed notes which Tanya Smythe said she made after the applicant was arrested on 18 November 2008;[40]
(e)post-trial correspondence regarding an appeal, including letters from the applicant to the NTLAC, and opinions of Suzan Cox QC and Stephen Odgers SC;
(f)the correspondence between Mr Lloyd and Mr Read in early 2013;
(g)the following affidavits in support of the applications for leave to appeal and extension of time:
(i) Michael David Lloyd sworn on 1 February 2016 concerning the application for leave;[41]
(ii) Madelyn Smythe (the applicant's sister) sworn on 11 January 2016;[42]
(iii) Tanya Smythe sworn on 28 August 2015;[43]
(iv) Peter Smythe sworn on 11 January 2016;[44]
(v) Michael David Lloyd sworn on 1 February 2016 concerning the extension of time;[45]
(vi) the applicant sworn on 27 January 2016;[46]
(h)affidavits of:
(i) Ian Read sworn on 1 June 2016;[47]
(ii) Ian Read sworn on 5 May 2017;
(iii) Julie Franz affirmed on 5 May 2017;
(i)oral testimony on 5 and 6 June 2017 of:
(i) the applicant;
(ii) Peter Smythe;[48]
(iii) Madeleine Smythe;[49]
(iv) Tanya Smythe;[50]
(v) Michael Lloyd;[51]
(vi) Ian Read;[52] and
(vii) Julie Franz.[53]
There is no reason to doubt the authenticity and accuracy of the transcripts of the voir dire and the trial, or of Mr Read’s records made contemporaneously with the events recorded at the time of the trial. The facts apparent from those documents, and the inferences to be drawn from those facts, would ordinarily be considered more reliable than facts asserted subsequently on the basis of memory rather than contemporaneous record. While the accuracy of Mr Read’s diary notes was not challenged, counsel for the applicant contended that they are incomplete in a material respect. The assertion is that they do not record that Mr Read told the applicant that he could not give evidence.
It is to be expected that following the lapse of a substantial period of time recollections of things said during and shortly after the trial will differ, and may be confounded by hindsight impressions of what people thought was or should have been said or done rather than what actually occurred. These cautions necessarily apply to much of the evidence that was adduced for the first time in affidavits filed for the purpose of these applications and in the course of the oral testimony in this court.
Pre-trial meetings
The applicant was initially represented by Peter Maley, a private solicitor. Mr Maley took instructions and prepared a statement of the applicant. After the matter was taken over by the NTLAC it was handled by Suzan Cox QC, the Director of the NTLAC, with the assistance of Ms Franz. Mr Read was allocated to be lead counsel for the trial in July or August 2009.[54]
Shortly before the trial Mr Read went to Adelaide for the purpose of conferring with the applicant and his family, and with a Dr Blood concerning the applicant's memory loss. After conferring with the applicant for some time at the premises of the Legal Services Commission of South Australia, Mr Read had a discussion with Richard Smythe and his wife Tanya Smythe.
Mr Read met and conferred with the applicant again at his office at the NTLAC during the weekend before the trial commenced on Monday, 26 October 2009. He also had discussions with Peter Smythe and Madeleine Smythe, who had also flown up from Adelaide with the applicant to support him during the trial. Consideration was also being given at that time to calling Peter Smythe during the trial to give evidence, particularly about the applicant's mental issues.
The voir dire
As noted at the outset, a voir dire hearing to determine the admissibility of certain evidence was run over the course of Monday, 26 October and Tuesday, 27 October 2009.
The evidence
The Crown called the complainant HM, her previous boyfriend Mr Parkhill, and the complainant’s mother MM to give evidence at the voir dire. Mr Read then called the applicant, Peter Mansell (who had helped the applicant with claims arising out of alleged mental disorders following his service as a soldier in Vietnam), and Peter Smythe.
MM gave evidence about the admissions of 30 November 2007. Her evidence was that an argument had taken place on the previous day between the applicant and HM. HM said to the applicant: “You wouldn’t be here if it wasn’t for me.” MM’s evidence was that after HM had left the room the applicant told her that “we have to get rid of her”. She said that HM had never liked the applicant. When they spoke on the telephone later that day MM asked HM to meet her at work because she wanted to talk to her.
The following day, HM came to where MM was working. MM asked HM to tell her what was going on. MM asked HM whether the applicant had touched her. HM said “yes”, and went on to say that the applicant had sex with her “more than once”, “all the time”, and “every week”.[55] MM said she hugged HM then went over to the phone, rang the applicant and said to him: “Get your stuff and get out.” The applicant said: “You’re going to listen to her side and not hear what I have to say.” MM said: “I’ll be there in five minutes.”
MM said she went straight home and spoke to the applicant. Her evidence in relation to that conversation was as follows:
I said ‘Sit down’ and I said ‘Did you have sex with [HM]?’ and he said ‘No” and I said ‘Don’t bullshit, don’t bullshit me, Patrick, did you have sex with [HM]’ and he said ‘Yes’ and I said ‘You had sex with her. She is a young girl, her dad had died, you were supposed to look after her and you have done the worst thing you could have done’ and then he said ‘You don’t understand’ he said ‘I tried to stop but she kept calling me in’. He described her as a conniving little bitch.[56]
MM said she asked the applicant whether he had worn a condom and he replied that he had. “He said at one stage he tried to hurt her, he wanted to hurt her, that’s why he had done it.” MM’s evidence was also that the applicant had said that he tried to stop himself but couldn’t.
MM then related how the applicant left and went for a drive after that conversation and later returned wet. He told her that he had tried to kill himself by walking out into the water at the beach. Meanwhile, she had rung the applicant's brother Peter Smythe and told him that the applicant had admitted having sex with HM. MM told Peter Smythe she wanted to get the applicant out of the house before HM returned from work that night. MM and Peter Smythe determined to tell the applicant that Peter was sick and that he should immediately fly to Adelaide to be with him. That was done, the applicant agreed to do so, and MM drove him to the airport.
During the course of the voir dire the applicant gave evidence in examination-in-chief concerning his circumstances leading up to the end of November 2007. He said he was concerned about the family’s financial situation and about his difficulty getting work. He said that he rang Bunnings to ask them if they had any positions vacant. His evidence in that respect continued as follows:[57]
Yes. And what happened then? --- All I can remember is putting the phone down after I spoke to the lady from Bunnings who said they’d just refilled the recruiting – the recruiting cycle - and they said for me to take up your resume and they would put it on file for me.
Yeah, and what do you remember after that? Nothing.
Do you remember what day that was, that that occurred? --- No, I don’t remember the day.
Do you know what you felt like? --- Pretty down, I know that. I was just shocked, especially when you can’t get a job at Bunnings.
Now you heard MM give evidence about conversations; you’ve heard HM give evidence about conversations? --- Yes
Are you able to shed any light on these conversations? --- I have no recollection at all.
…
Sorry, well after that, what do you recall after you put the phone down to Bunnings? --- I remember I have an image of seeing [K] going off to school on his bike. I have an image of standing at the airport and looking at the luggage carousel. It had stopped and I was standing in line. Then somebody was looking at me down this tunnel. And it was a doctor shining a light in my eye. And I remember going to the repat hospital in the ambulance and there was a female one side of the driver and there was a bloke sitting across from us. That’s basically it. I had two weeks …
When was that, Mr Smythe? --- I believe that was sometime in December, early December
Do you have a recollection of that date or is that only what’s been? --- That’s all I can recall. Everything else is just a blank to me.
Do you recall arriving in Adelaide? --- No
Do you recall going to see your family? --- No
Now you now know that you were admitted as an involuntary patient at Daw Park at Modbury, don’t you? --- Yes so I’ve been told yes.
The applicant was cross-examined about his depression and anxiety and his difficulties retaining employment. The applicant said he “knew … there were things were wrong with [him]” and he applied for an increase in his TPI pension. He was referred to a psychiatrist who diagnosed him as having “PTSD general anxiety”.[58]
When asked whether he had a recollection of a conversation with HM in November 2007 about her owing rent, he said: “No, I have no recollection.” However, the applicant accepted that it was possible that they had that conversation. The following exchange then took place:
Do you also accept that you were confronted by your wife about the allegation that you had sexually abused H since she was 12 years old? --- I have no recollection at all of ever having any conversation like that with my wife.
You have no recollection? --- None.
None at all? --- None at all.
… What is the last thing you remember in November 2007? --- I put the phone down talking to a lady from Bunnings. I remember that.
He was then cross-examined in the following terms about the call to Bunnings and the memory blanks he had described his evidence:[59]
Have you ever had such blanks before this? --- No, I have never had it like this.
The only time - November 2007 - you had this blackout, bang? --- That’s when it … happened, yes.
And that of course is when you are accused of sexually abusing your stepdaughter? --- Conveniently yes.
Yes, conveniently. And you’ve had them since have you? These blanks? --- No
No? Never had them? --- Nope.
The applicant was then asked about taking HM camping to Adelaide River. He said he took her there once when she was about 14. He said that MM had told him that HM had been smoking dope and cigarettes, and that they should take her bush, “get her to smoke a full packet of cigarettes so that she’ll become sick and then she’ll get over it, she’ll never smoke again.”[60]
When he was later asked more questions about the camping trip he said that he could not recall the exact date but recalls that he took her camping “because my wife insinuated – insisted that I take her camping". The following exchange then took place:
Going back to that camping with HM when you took her, just the two of you when you overnighted in this camp. Were you a little worried about her becoming perhaps familiar to you or trying to flirt with you? --- No she was tired.
Tired. There was no suggestion that she was encouraging you to have physical contact with her? --- No, she was too tired.
(Emphasis added)
Olsson J’s remarks
Olsson J provided extensive reasons for his rulings on the three issues raised by defence counsel on the voir dire.[61] After determining that the pretext evidence was inadmissible but allowing evidence of HM's complaints to Mr Parkhill, his Honour considered defence counsel’s submissions that MM’s evidence of the admissions of 30 November 2007 should be excluded. After canvassing the evidence in that respect, Olsson J said:
32. The defence submits that I should exclude this evidence on the basis adverted to by Gleeson CJ in the case of Parker i.e. by reason of the implications of the medical condition of the accused at the relevant time and, in particular, his intellectual or medical state – as related to the property of the means by which the confessional statements were obtained, the reliability of the statements themselves and the fairness involved in permitting the statements to be used against the accused.
33. It is fair to say that a considerable proportion of the voir dire proceedings focused on this issue and the evidence said to be relevant to it. It is, in my view, impractical and also unproductive, to attempt a fully detailed analysis of it at this time. Time constraints dictate that I confine myself to certain key aspects.
34. Although there was some conflict of the evidence in the issue, it is clear that, for some time prior to 30 November 2007, the accused had suffered from a number of physical ailments and experienced some level of emotional difficulty. He had left well-paid and secure positions in both the Department of Defence and the Charles Darwin University, because of either stress or difficulty in relating to his supervisor. He had not been in continuous paid employment since 17 March 2006.
35. He had thereafter applied for other positions but had been unsuccessful in obtaining them.
36. The evidence indicated that he had been a Vietnam veteran and had, with the assistance of the witness Mansell, pursued claims for the disability pension from the Department of Veteran Affairs in 2006 and early 2007. These were based on a variety of asserted disabilities, but, ultimately, they particularly focused on a condition of asserted post-traumatic stress disorder. This was a strategy recommended to the accused by Mansell, who personally suffered from such a condition. He explained to the accused what post-traumatic stress disorder was all about and gave him a publication concerning it.
37. The accused was at the instance of the Department of Veteran’s Affairs, assessed by a consultant psychiatrist, Dr Rose, on 23 May 2006. I have a copy of his report before me.
38. It is of interest that the report contains no reference to memory loss and actually records that ‘objectively, orientation and memory were good’. There was no evidence of pre-existing personality disturbance. Indeed, it was said that the accused presented in a normal manner and his intelligence was intact. There was mild anxiety and no evidence of clinical elevation or depression at the time of examination.
39. This consultant was of the opinion that the accused suffered mild chronic post-traumatic stress disorder stemming from his Vietnam experiences.
40. The accused was again examined by Dr Ewer, another consultant psychiatrist retained by the Department, on 20 June 2008.
41. This consultant confirmed the diagnosis of chronic post-traumatic stress disorder, involving intrusive recollections, flashbacks, nightmares, depression and anxiety. Inter alia, this was reported to include inability to cope with pressure, difficulties in interacting with people and poor memory and concentration. Significantly, the case history given by the accused made no specific reference to any periods of total memory blackout as referred to by him in the course of his evidence.
42. The accused testified that he has virtually no detailed memory of anything from about a time when he unsuccessfully applied by telephone for a job at Bunning in late November 2007 up until about a fortnight after he had been admitted to Daw Park Hospital in Adelaide on about 5 or 6 December 2007. He testified that he has a total blackout, save that he has some memory of standing in line at the Darwin airport and seeing a baggage carousel there and also has a memory of a doctor shining a light in his eye at some point and of being in an ambulance – presumably when he was being relocated from Modbury Hospital to Daw Park Hospital.
43. This was, he conceded, the only true blackout that he had ever experienced.
44. That evidence needs to be considered against the testimony of his wife and the fact that the evidence discloses both that he was able to conduct a telephone conversation with his brother Peter in Adelaide in the early afternoon of 30 November 2007 concerning a proposed flight to Adelaide to stay with him and sending of an e-mail by him to his brother at 1.55pm confirming his flight details. [MM] asserts that he was quite coherent and lucid when she went home and challenged him about his sexual activity with the complainant.
45. I understood the evidence of Peter Smythe to be to the effect that, on and immediately after his arrival in Adelaide, the accused was somewhat withdrawn and not entirely with it. He complained of being very tired and in fact slept for some time both at another brother’s home and at Peter’s house. Over the next day or so he seemed to be stressed and was still not entirely with it.
46. Peter Smythe related how, on what must have been 4 December 2007, he took the accused for a drive to look at the property near Burra. In cross-examination, he accepted that, during the trip to Burra, the accused was coherent and talking formally, but he seemed to have lost track of the time his memory appeared defective in certain respects. The Court was told that there was some discussion concerning the accused’s sons [RM] and [KM] and about the accused’s inability to get a job.
47. This witness said that, when he initiated conversation with the accused about his family situation, the latter became what he described as stony faced. Ultimately, when Peter said that they needed to talk about the serious allegations that had been made in relation to the complainant, the accused went into such a sudden frenzy and attempted to get out of the vehicle when it was travelling at about 80 km/h.
48. Peter Smythe said that, eventually he managed to calm the accused down to the point that he was able to drive him back to Adelaide where he was admitted to and detained in the Modbury Hospital. He was transferred to the psychiatric ward at Daw Park the following day, where he remained for about six weeks. He was subsequently re-admitted for short periods.
49. As I have indicated, a striking feature of the voir dire evidence is that the accused professes absolutely no detailed memory of relevant events from a time prior to his confrontation with his wife until after he had been in the Daw Park Hospital for some two weeks – a phenomenon not reported on by Dr Ewen. No other medical evidence has been called to establish his condition during that specific period.
50. Even given that he undoubtedly had some psychiatric episode when the topic of his alleged misconduct was raised by his brother and that, following the confrontation, there is some evidence that he attempted to drown himself before leaving for Adelaide, there is, in my view, no convincing evidence that he was in a state of memory blackout at the time of the confrontation itself.
51. The communications with his brother concerning his travel arrangements, the fact that, having been dropped off at the airport, he was able to board his flight without any apparent problem and the fact that, on arrival in Adelaide, his interactions with Peter Smythe did not indicate the existence of a total state of blackout, are inconsistent with what he now says – experienced at the time of the confrontation. Whether, as a result of his later psychiatric episode near Burra, he suffered some degree of retrospective loss of memory may be another question. There is no medical evidence bearing on this aspect.
52. I carefully studied him in the witness box and he did not come across as a convincing witness as to this topic. I do not doubt that the confrontation with his wife on 30 November 2007 caused him great anxiety and stress and may well have exacerbated his then current level of post-traumatic stress disorder. However on balance, I consider that, at the time of the confrontation, his mental health state was not such that he has no memory at all of the detail of the confrontation. His assertions in that regard in the witness box were quite unconvincing.
53. I do not doubt that his mental health state commenced to deteriorate after that time and that the further raising of the topic with him by Peter Smythe at Burra acted as a further exacerbating factor.
54. At the end of the day I see no reason to exclude the evidence of [MM], who was, prima facie, a credible and convincing witness, albeit that she presented with an obvious and perhaps understandable bitterness towards the accused.
55. It is to be remembered that the accused does not deny her version of what she says occurred. He simply professes no present memory of most of the relevant events of that day at all.
(Emphasis added)
The trial proper
The trial proper commenced on Wednesday, 28 October 2009. As already noted at the commencement of these Reasons, the Crown called HM, MM, RM and Mr Parkhill. RM is almost three years younger than HM and is also MM’s child of an earlier marriage. A number of documents and agreed facts were tendered. The Crown closed its case on the morning of Friday, 30 October 2009.
As also noted at the outset, the defence then adduced evidence from Mr Bray, HM’s husband, and Mr and Mrs Pappalardo, neighbours of the applicant and his family in Darwin. Mr Bray and HM had met in 2002 and married in August 2003.
Apart from the transcript of the trial proceedings, the only contemporaneous records of matters relevant to this appeal are two memoranda written by Mr Read dated 28 October 2009 and 2 November 2009 respectively.
Mr Read’s note dated 28 October 2009
Mr Read wrote a detailed note dated 28 October 2009, which was the first day of the trial proper.[62] Mr Read recorded that he had spoken to at least four medical experts about the applicant’s claimed memory loss associated with post-traumatic stress disorder or a combination of post-traumatic stress disorder and nervous breakdown or depression. None of them was prepared to draw such a link. Indeed, one of them was “quite lukewarm … in relation to such a sustained memory loss”, one was “positively sceptical about the memory loss”, one “did not sound at all enthusiastic about a sustained memory loss like this”, and the other was “positively sceptical”. Mr Read wrote that “any of these experts would be fatal to the defence".
After noting the advantages and disadvantages of calling Peter Smythe, Mr Read noted various factors relevant to the determination whether the applicant should give evidence in his defence. He wrote:
Finally, as usual, I have waxed and waned over whether to call the client. Initially he and the family obviously want to give evidence and generally after his evidence on the voir dire, I didn’t think he was too bad. However, he was hardly touched by Michael Stoddart who I believe is a clever cross-examiner unlike many prosecutors and the answers, notwithstanding some explanation might be able to be given to why [HM] didn’t flirt with him because she was so tired in my view I think is devastating. That is clearly Julie’s view as well. On top of that there is his memory loss issue. Notwithstanding directions as to whether even in the event that the jury disbelieves a defendant on oath, if they are to believe he is lying about that, this would be fatal. I do not believe a jury would have a reasonable doubt in finding that he is lying about that in all the circumstances. There is nothing to corroborate his memory loss other than his repeated assertion in a pre-text telephone call afterwards. Ultimately it is a question for him and I have explained to him his options but have not yet explained to him the problems that he may have giving evidence. If Michael Stoddart does have access or call for the medical records this would be the icing on the cake for the Crown.
(Emphasis added)
Mr Read’s note dated 2 November 2009
Mr Read’s diary note dated 2 November 2009[63] was apparently made on 29 October 2009.[64] It records the following matters:
I have tossed and turned about issues as to whether to call the client and the brother Peter a great deal and I have had a conference at the mid-morning break on Thursday with them explaining my views and tactical reasons and then did it again with Julie at lunchtime. In short my advice is as follows:
1. Patrick Smythe should not give evidence because upon the Voir Dire, although he was solid, he gave a very foolish answer at about page 104 of the voir dire transcript, answering that [HM] was too tired for him to be worried about her making sexual advances. This was then repeated and he gave the same answer again and it leaves little to the imagination for a half clever prosecutor to destroy the whole case with those answers.
Secondly, we have been successful in getting the pretext telephone call out which raises this whole issue of Patrick’s great memory loss (this is also bearing in mind that I have made enquiries of Dr Blood, Lester Walton, Bill Lucas and finally the long discussion with Tony Franklin who all, in my view, see previous file note were very cold on this type of memory blank). By giving evidence this whole issue would justify a consciousness of guilt direction for telling lies.**** to some extent incidentally His Honour, in the ruling on the voir dire, described him as an unimpressive witness.
Hospital records could be called for which corroborate the Crown's view that he was perfectly lucid at all times.
2. In relation to Peter there are a number of things which I think potentially are disastrous. (A) Should [HM] admit to her preparedness to make an allegation, this would be painted simply as her statement of the truth at an earlier stage, unwillingness to reveal it to Patrick’s brother quite understandable and consistent with someone who has been abused. (B) It would paint her as a credible witness.
3. This would again open up a lack of memory issue and he could be cross-examined up hill and down dale about the loss of memory. He would also be cross-examined about his conversation with Patrick and Patrick organising the air ticket and all that sort of thing. There is also the other factor about the incident of the near car accident which is totally consistent also with consciousness of guilt and frankly I don’t know how I would explain it with any convincing alacrity to the jury. I also made it quite clear to Patrick that it was his right, and this was in everyone’s presence, to give evidence and this was made quite clear.
Finally, I have spoken to Peter Smythe and he is flying back Friday night. Although…
(Emphasis added)
Post-trial reviews
On 4 November 2009, Mr Read provided a memorandum to Ms Cox entitled “Assessment of Merits for Appeal".[65] After referring to “a very difficult tactical position from time to time” (during the trial), Mr Read wrote that the trial judge had not provided the jury with certain warnings during his summing up. He then wrote:
Attached also are my notes in relation to the critical forensic decisions, which I am completely confident was conducted properly, openly and with some, perhaps unnecessary, detail.
The applicant was complimentary about the conduct of the trial and I believe that family were happy as well; should there be any complaints a later stage, but that applicant was particularly happy with the conduct.
(Emphasis added)
On 5 November 2009, Madeleine Smythe wrote to Mr Read advising him that she had flown up from Adelaide that morning to be with the applicant while he was being sentenced.[66] She asked about bail and whether an appeal is “at all possible”. She wrote: “Naturally the family is devastated with the outcome, but we know Paddy is innocent and therefore will fight to the end.”
Mr Read visited the applicant at the prison on 25 November 2009. He told the applicant that Ms Cox was reviewing the proceedings. The applicant continued to protest his innocence and said that some of his memory had returned. This included his memory of a conversation with HM concerning her attempts to blackmail him to get money. Mr Read told him that if he began to remember more he should write it down. The applicant said that he would tell his sister Madeleine about these things.[67]
Ms Cox wrote to the applicant on 14 January 2010 and advised him that she considered there were no viable grounds of appeal.[68] Ms Cox attached a detailed opinion entitled “Possible Appeal against Conviction”. She informed the applicant that he could ask to have her decision reconsidered by someone else. She also wrote:
I have written to the Director of Public Prosecutions advising that you do intend to appeal so that they are on notice. It is important, however, that there are no unnecessary delays if you intend to proceed with an appeal.
Ms Cox's opinion involves careful consideration of the trial judge’s rulings on the voir dire, the adequacy of the trial judge’s summing up to the jury, and whether the verdict could be considered unsafe or unsatisfactory. Ms Cox referred at length to the evidence-in-chief and cross-examination of HM, and concluded that her evidence “was consistent, given in a forthright manner and her responses under cross-examination appropriate and understandable”. Her evidence was also supported by that of her mother, and in particular MM’s evidence about the admissions of 30 November 2007.
In relation to the defence case, Ms Cox noted that the trial judge had found some of the applicant's evidence on the voir dire “unconvincing”. Ms Cox noted further that the defence had been unable to call any psychiatric evidence to corroborate the applicant's assertions of a memory blackout, and not even from his treating psychiatrist from Daw Park Hospital to which he had been admitted very shortly after making the admissions of 30 November 2007. Ms Cox also wrote:
In my view there were sound forensic decisions in not calling the accused. This was particularly the case in view of the accused’s evidence on the voir dire. His unhelpful answers given in cross examination would have provided ample material for devastating cross examination of him in the trial.[69]
The opinion concluded that there was no viable ground of appeal.
On 20 January 2010, the applicant wrote back to Ms Cox requesting a reconsideration of her opinion as a matter of urgency.[70] His letter comprised four pages. He began by strongly asserting his innocence and advising of his intention to conduct further hunger strikes and to refuse “all assistance including medical until I am free or my life ends”. He then asserted that there were a number of inconsistencies in the evidence of James Parkhill. He then raised a number of complaints about the conduct of the trial judge and Ms Cox. These included that the judge had failed to adequately take into account the reasons for HM’s delay in making her complaints; that the judge (and Ms Cox) had failed to recognise and accept that he was suffering from PTSD and that anything that he said or did during the period of his mental breakdown should not have been accepted by the court; that the judge (and Ms Cox) had failed to take into account MM’s threats to use unlawful means to have him sign over some property to her and to prevent him from taking care of their other child KM; and that the judge was not impartial during the trial and during his summing up.
Ms Cox replied by letter dated 1 February 2010 and advised the applicant that she had engaged “a very senior counsel, Mr Stephen Odgers SC” to provide an opinion as to whether there were any viable grounds of appeal.[71] If Mr Odgers did so advise, legal aid would be granted to prepare the appeal. Ms Cox said she would forward the applicant’s letter of 20 January 2010 to Mr Odgers “so that the matters you raise can be considered by him”.
Mr Odgers subsequently provided a memorandum of advice in March 2010.[72] In that memorandum he agreed with the conclusions previously drawn by Ms Cox. In so doing, he gave careful consideration to the various issues raised by the applicant in his letter of 20 January 2010. Mr Odgers addressed the applicant’s repeated insistence that MM had a motive to lie and to fabricate the admissions of 30 November 2007 in the following terms:
Most important, the suggested motive to fabricate a confession was unpersuasive. There was absolutely no doubt that HM had made the allegation of sexual abuse. That, on its own, justified MM in insisting that he move out and in ending the marriage. There was absolutely no need to fabricate a confession and then to tell Mr Smythe’s brother about it.
Mr Odgers then gave consideration to the applicant’s contentions that the admissions of 30 November 2007 should have been excluded on the basis of fairness in light of the applicant's testimony on the voir dire that he had no memory of that particular period of time and that he had a breakdown soon after that. After observing that the onus was on the defence to persuade the judge that the evidence of the confession should be excluded, Mr Odgers stated:
Mr Smythe’s claim that he was so traumatised by being knocked back for a job by Bunnings that he then suffered a complete memory lapse was not particularly plausible. The judge, who had the benefit of seeing Mr Smythe testify, did not regard him as a credible witness. I note, in that regard, Mr Smythe’s extraordinary evidence that he was not worried about HM encouraging physical contact between them when they were camping because “she was too tired”. For him to claim to have even thought about such a possibility completely undercut the defence case that no sexual activity of any kind ever occurred (and also provided some support for MM’s account of how he attempted to justify the abuse). Equally important, despite some documentary evidence that Mr Smythe had been assessed as suffering PTSD for the purposes of a TPI pension, the defence did not call any expert evidence in the voir dire to support that diagnosis and link it to the alleged confession.
Mr Odgers then considered the fact that the applicant did not give evidence at the trial. He wrote:
At this point, I should discuss the failure of Mr Smythe to testify before the jury. As I have said, the fact undoubtedly did not help his cause. However, it is apparent to me that he was well advised not to testify. The defence case as put to the jury was that he had not confessed to [MM] and that she was telling a lie in saying he had. However, that contention would have been significantly undercut if the jury knew that Mr Smythe claimed no memory of that time and thus could not say that he had not confessed. Of course, if he had testified to such a lack of memory, it would have been likely that the jury would have formed the same negative view of his credibility as did the trial judge, particularly in the absence of any expert evidence to support his claims. In his letter, Mr Smythe refers to “the only real and reliable evidence” being his medication records. However, such evidence was of marginal significance in the absence of any expert evidence being given at the trial. There was no doubt that Mr Smythe did have a breakdown in 2007 but the prosecution could make the obvious point that the allegations of child sexual abuse would have been particularly stressful and might well explain the breakdown. The fact of medication certainly did not, as Mr Smythe claims, “demonstrate my innocence”.
Mr Odgers concluded that an appeal against conviction did not have any reasonable prospects of success and lacked merit according to the criteria applied by the NTLAC to determine whether an appeal should be funded. On 29 April 2010, a Review Committee upheld the decision of the NTLAC to refuse assistance in respect of an appeal.[73] On 17 August 2010, following the request by the applicant described earlier in these Reasons, all papers in relation to the trial were sent to his brother Richard Smythe.[74]
On 9 January 2013, Mr Lloyd wrote to Mr Read and informed him that his firm acted for the applicant.[75] He raised a number of questions in the following terms:
Our first concern is that Mr Smythe gave evidence on the voir dire but not before the jury. We are instructed that he had wished to give evidence but that you decided that he should not. Having read the transcript we would have thought that although Mr Smythe had a legal right to remain silent the circumstances of the case dictated that he should give evidence. Would you please tell us the circumstances in which the decision was made that he not give evidence? Did you make that decision against his wishes? In any event would you please tell us whether you obtained written instructions on the matter? If you did so could we please have a copy of those instructions?
Secondly no other witnesses were called for the defence. We would be pleased if you tell us whether any consideration was given to calling other witnesses? In particular was there any discussion about Peter Smythe and Tanya Smythe or either of them giving evidence? Did you obtain written instructions on this topic? If so may we have a copy?
Thirdly did you consider calling any psychiatric evidence on Mr Smythe’s behalf? We understand that he had suffered from post-traumatic stress disorder and that a Dr Walton had seen him earlier in this year. Could you please tell us whether a letter of request was first sent to Dr Walton and if so may we have a copy? In any event would you please tell us why Dr Walton was asked to see Mr. Smythe? What effect if any did Dr Walton’s subsequent report have on your consideration of the question whether psychiatric evidence should be called in trial?
Fourthly but still on the subject of Mr. Smythe’s mental health did you consider whether Mr Smythe was psychologically unable to stand trial when he did. By that we do not suggest that he may have been mentally incompetent but did you ever consider that he was unable to cope with stress of a trial at that time and especially the demands of giving evidence? It has been suggested that you said something to that effect after Mr Smythe’s evidence on the voir dire.
Finally would you please send us a copy of any signed instructions that you obtained from Mr. Smythe, or notes that you made about instructions that he gave you for the trial?
(Emphasis added)
Mr Read replied on 18 February 2013 in the following terms:[76]
1. Although Mr Smythe was told that it was his right to give evidence upon his trial, I advised him against giving evidence for a number of reasons. Firstly, at page 104 of the Voir Dire transcript when being cross examined about a camping trip, he stated and repeated that [HM] was too tired for him to be worried about her making sexual advances. The connotations of such answers were devastating in the context of a man who denied any sexual relationship with the complainant. These answers would have been used to devastating effect either by way of direct evidence or prior inconsistent statement should he have given evidence. Any suggestion in front of the jury that he acknowledged that there was a flirtatious and sexual relationship between him and the complainant would have been most unhelpful. The second problem that Mr Smythe faced in cross examination was the issue as to whether the alleged admissions made to his wife were made. His account and assertion of denial/lack of recollection could not be supported by forensic medical evidence and some of the actions by him relating to the organisation of airfares etc were not consistent with a person who was out of touch with reality. I have not re-sighted the medical records from Modbury, but my clear recollection is that upon his admission the records reflected that he was suicidal but there was no suggestion that he was psychotic or out of touch. The records also reflected the taking of a clear and concise history which were factors also inconsistent with a person who was in severe post traumatic stress or otherwise psychotic. These issues were investigated at length and advice was sought from senior forensic psychiatrist, Dr Lester Walton, his treating psychiatric Dr Blood, senior forensic psychiatrist Dr Bill Lucas from Canberra and Mr Tony Franklin, a psychologist who has had extensive experience with post traumatic stress disorder, particularly with veterans. None of these experts could have been called to support the argument that at the time of the alleged disclosures it was likely that he did not have a clear recollection or, that he was in such a state that it would have been unfair to use the alleged admissions against him. Had Mr Smythe been called at trial the whole issue of his recollection and mental state would have been laid before the jury and would not have been supported by reliable expert evidence. An Edwards lies direction, capable of corroborating the allegation would no doubt have followed. Finally, in relation to the calling of Mr Smythe, the remark made by the Learned Trial Judge at the conclusion of the Voir Dire that Mr Smythe was an unimpressive witness, confirmed the forensic position as both my junior Ms Franz and I saw it.
2. Considerable thought was given to the issue as to whether the brother, Peter Smythe, could be called. There are again a number of forensic reasons why it would have been a poor decision to call Peter Smythe notwithstanding his obvious stature as a Federal Police Officer. The first problem was that the complainant had complained to Peter Smythe some time earlier in late 2006 that Patrick Smythe had had sex with her. Peter Smythe said that this was a false complaint and was in the context of other manipulative remarks. However, had the complainant been cross examined about this complaint, no doubt she would have agreed that she made the complaint to Peter Smythe but that it was true. This complaint would have been entirely consistent with the complaint she made to her previous boyfriend who was called to give evidence as to complaint in the trial. I considered that this made Peter Smythe a potentially very damaging witness. Secondly, Peter Smythe could have been cross examined about the circumstances and days following the allegations and alleged admissions. Peter Smythe’s evidence would have opened up the whole lack of memory issue in the context where the defence was unable in any forensic sense to provide a satisfactory evidentiary foundation for memory loss. His evidence also may have opened up and led to the playing of the pretext telephone call which although it contained no admissions, was in my view, very damaging and which we successfully argued to be excluded. The admission of the pretext call would have been devastating to the defence.
3. You ought to have seen that the transcript reveals that other witnesses were called either on behalf of the Defence or called by the Crown at the request of the Defence. Admissions of fact were also made by the Crown in relation to his previous post-traumatic stress disorder.
4. In relation to whether he was in a state to stand trial, my clear recollection is that he had considerable family support and I was confident and of the view that he was clearly fit to stand trial.
I hope these explanations address your queries appropriately. In my view, the best prospects of acquittal for this man were to run the defence that due to Mr Smythe’s deteriorating situation, his failure as the bread winner and the breakdown in the marital relationship, that these uncorroborated allegations (aside from admissions) were made in order to rid the family of Mr Smythe and ensure through the pressure of the allegations that the house was signed over to Mrs Smythe. It would appear that they regarded him as a difficult and controlling man. This scenario was sought to be supported by the fact that the report to Police was not made immediately and would appear that there may have been some attempt to have property put into Myrna Smythe’s name, the allegation being used to assert pressure on Mr Smythe. This defence was further supported by the facts that the complainant had made no suggestion of ill treatment other that a minor assault by Mr Smythe to her previous husband, an impressive naval officer, and had allowed her own child to be looked after and cared for by Mr Smythe, a man she alleged to have brutalised her over many years. In my view, this was the only realistic approach to this trial and avoided any evidence other than a complaint, being before the jury of sexual predilection or dishonesty arising out of evidence relating to the circumstances of the complaint. I have in the relatively short time available sought to give this explanation from the parts of the file I have reviewed and I do believe it is a sound reflection of the forensic issues and decisions that were made in our best endeavours to secure an acquittal.
(Emphasis added)
Apart from the letter dated 21 February 2013 which was sent to the DPP advising that there was one issue to finalise before being able to lodge an appeal (discussed earlier in these Reasons in the context of the explanation for the delay), it seems there was no further communication with the DPP regarding an appeal until February 2016 when the current applications were lodged.
The question arising on Grounds 1 and 2
Grounds 1 and 2 assert that the applicant’s counsel refused to allow the applicant to give evidence in his defence or, in the alternative, failed to adequately advise the applicant that the decision whether the applicant gave evidence before a jury was his and his alone. Each of these grounds turns on what advice was given to the applicant by his counsel during the days and hours prior to the close of the Crown case and the time at which it was determined to close the defence case without the accused giving evidence.
Counsel for the applicant contended that:[77]
8. The applicant had wished to give evidence in his defence. However his counsel had refused to allow him to do so. Mr Read’s refusal to permit the applicant to give evidence was witnessed by members of the applicant’s family Peter Smythe (Appeal Book p 755 para 3) and Madeleine Smythe (Appeal Book p 740 paragraphs 4 & 5).
9. It may be noted that his counsel has not produced signed instructions that support his assertion that he only advised the applicant not to give evidence, as distinct from refusing to allow him to give evidence cf Appeal Book p 784 at para [5].
Parts of the applicant’s submissions focus on the consequences of the failure to call the applicant as a witness.[78] The relevant question in the first instance is whether the applicant's counsel either refused to allow him to give evidence or failed to advise him that it was his choice. It is only if one or other of those matters is established that it is necessary to consider whether the failure, if made out, gave rise to a miscarriage of justice.
The difficult issues considered by Mr Read in the course of determining whether or not the applicant should give evidence, and reconsidered by Ms Cox and Mr Odgers in their subsequent opinions, provide important context for assessing the manner in which Mr Read's advice was communicated at the time, and the manner in which his advice might be remembered and construed some six years after the event.
Evidence concerning the failure to call the applicant
The applicant
In his affidavit of 27 January 2016[79] the applicant deposed to some of the events which occurred prior to trial. He had been seen at the prison by Ms Cox and Ms Franz at the time the committal proceedings took place. He deposed that:
38. Since my trial I have been shown a nine page statement, undated, the contents of which relate principally to my background. I do not remember seeing that statement at any time prior to my trial. I mark a copy of my statement as “Annexure A” and annex it to my affidavit.
39. Further I have never been shown a statement that contains my written instructions about the actual allegations against me.
40. About two weeks before my trial Mr Read met with me at the Adelaide office of the Legal Services Commission of South Australia. We spoke for approximately 90 minutes. During the meeting he referred to some documents that he had in front of him. He said that he was referring to statements of [HM], [MM], [RM] and James Parkhill. He wrote on them, or some of them, as we spoke. I told Mr Read that the allegations were a pack of lies but I was never given any witness statements by Mr Read or any other solicitor.
41. I flew to Darwin approximately a day before the date set for the commencement of the trial. I travelled with my brother Peter and my sister Madeleine.
The nine page statement annexed to the applicant's affidavit[80] is identical to that annexed to Mr Read’s affidavit of 1 June 2016,[81] except that the latter contains some handwritten annotations and a hand drawn diagram of the classroom and computer area referred to in paragraph 5 of the statement. Those rooms were in the small school at Ripple Creek in Ingham, Queensland, where the applicant first met MM and her children HM and RM.
During cross-examination in this court the applicant was asked about his meeting with Mr Read in Adelaide prior to the trial. The cross-examination included the following exchange:
… During this meeting with Mr Read in Adelaide where there was only you and Mr Read, was there any discussion in relation to you giving evidence at your trial? --- None that I can recall. All I can recall from that meeting was we went through my statement, what (sic) my response to their allegations.
Yes? --- And I made it known that as far as I was concerned, they were all lying.
The applicant was then shown the statement annexed to Mr Read’s affidavit and identified the diagram as a “rough sketch diagram” that he prepared and gave to Ms Cox previously. He said in his evidence:
I do know that the diagram that is there is incorrect. Ms Cox actually asked me to draw the classroom but I drew the classroom, what it looked like when we left, not when the so-called allegations were made. The classroom would have been cleared and the chairs all stacked up, ready for cleaning.[82]
The applicant acknowledged that all of the information contained in the statement was information that he had previously provided to either Ms Cox or Mr Read, and when reminded of what he had said about the statement in paragraph 38 of his affidavit he said: “I never saw this here - I never saw this until the trial … I never saw any of this until, well, after the trial.”[83]
In his affidavit of 27 January 2016 the applicant deposed to the following matters:
46. After the voir dire Mr Read said words to the effect that he thought the judge did not think much of my evidence. Mr Read said that he was not happy with an answer that I had given that I said “too tired”. He never asked me whether I could explain or clarified that answer. I was referring to [HM] when I said the words “too tired”. My answer was not in any sense sexual. I misunderstood the questions because of my difficulties in hearing and the stress I was under in the trial.
…
49. After the voir dire hearing Mr Read said that I could not give evidence in my “condition”. He did not explain what he meant by this. I felt very angry that he was denying me a chance to tell the jury my side of the story. I had not been interviewed by the Police. If I did not give evidence my side of the story was not before the jury.
50. I told Mr Read that I wished to give evidence. I told him this many times.
51. He said words to the effect: “You are not giving evidence in your condition.”
52. Over the course of the trial I told Mr Read on a number of occasions words to the effect that I wanted to give evidence to refute the blatant lies of [HM] and the other witnesses for the prosecution, but he always said words to the effect that I was not to give evidence.
53. At no time did I understand that I had a choice, and my choice alone, as to whether I would give evidence. Mr Read did not explain that to me. He did not tell me the advantages or disadvantages of giving evidence or not giving evidence. He did not ask me to sign any document about me giving evidence, or not giving evidence.
54. Mr Read said very little to me about the trial apart from telling me that he was not letting me give evidence and that he would call other potential witnesses. He did not discuss his strategy or tactics with me.
55. As a result of all this, I felt very disadvantaged. I felt Mr Read was not letting me tell the judge and jury my side of the story. They only heard the central story from the prosecution witnesses. There was little other evidence presented in my defence, certainly no evidence that I denied the offending or about my condition on the day when I had allegedly made admissions to [MM]. I would have been able to explain in evidence before the jury of my condition on the day I was confronted by [MM] and that I would not have made any admissions to sexually abusing [HM] to her. I believe she has made this up to get rid of me. [MM] knew that I was not well. I remember leaving a suicide note at the house.
56. Mr Read also informed me that he was not going to call my brother, Peter, to give evidence. He said words to the effect that the prosecution would “tear him apart”. Nor was my sister-in-law, Tanya Smythe, called to give evidence. At no time did Mr Read discuss proposed evidence with me.
…
59. As a consequence of my PTSD my memory of the events is not as good now as it was in 2009.
(Emphasis added)
During cross-examination before this court the applicant was adamant that Mr Read directed him and said: “You are not giving evidence, not in your condition.” The applicant said he understood that to be a reference to the fact that he was on medication, that he was suffering from chronic PTSD, and that he had problems with his recall. When asked whether he understood that he could override Mr Read’s advice he said: “No, your Honour. I did not.”[84] He said that his brother Peter did not say anything to him to suggest that it was his “call” whether or not to give evidence.[85]
The applicant was also cross-examined as to why he did not complain about not being permitted to give evidence when he wrote the detailed letter to Ms Cox on 20 January 2010.[86] He said he did not consider that he needed to make that point because he was innocent and should not have been in gaol.[87] At some later stage, following discussions with some other prisoners and one of his brothers, he started to consider how “the failure of [him] not defending [himself] had affected [his] trial.”[88] He was not sure whether he ever raised that issue with Mr Lloyd.[89]
During re-examination the applicant said that he had told numerous people during the trial, including his sister and brother and Ms Franz, that he wanted to give evidence. When the applicant was asked about his failure to mention that matter in the letter he sent to Ms Cox after the trial, he said that he was afraid that if he started criticising someone working for the same organisation (a reference to the NTLAC), “it wouldn’t go down too well, because I was seeking help from them in the form of aid to mount my appeal and it was against someone who worked for them.”[90]
Peter Smythe
In his affidavit of 11 January 2016 (which was filed on 26 April 2016),[91] Peter Smythe deposed:
8. After the evidence had been given in the voir dire, Mr Read came out of the courtroom. He took Madeleine, Patrick and myself to one end of the building. He told Patrick that he would not be calling him to give evidence at his trial because it was clear Patrick wasn’t coping. Patrick asked why he could not give evidence. He said he wanted the jury to hear his side directly from him. Mr Read replied with words to the effect: “One of the answers you gave to the prosecution concerns me.” Patrick asked: “Which one?” Mr Read said: “When you were asked about being concerned that [HM] may have sexual interests with you on the first night you camped near the Adelaide River you replied: “No I didn’t, she was too tired.”
9. Patrick tried to explain to Mr Read that he had trouble hearing a lot of what was going on. I know Patrick has a hearing problem and I know he can have difficulties hearing. Patrick appeared to be stressed and appeared to not understand what was happening. He was confused and he did not understand why the allegations of sexual offences were being raised by the prosecution that occurred in Queensland if the Queensland Police hadn’t indicated any interest in him. Mr. Read told him this evidence was to show a course of conduct regarding his relationship with [HM]. Patrick appeared not to understand what Mr Read was saying.
10. Mr Read did not answer Patrick. He turned to me and said: “Peter, I will not be asking you to give evidence either.” I asked: “Why not? Mr Read said words to the effect: “I am not going to go down the character assassination path and a lot of your evidence goes towards that.” I remember Mr Read saying words to the effect that the Judge did not like my comment of “leaving the gate open” in my evidence in the voir dire. I asked “Are you intending to call anyone as a witness for Patrick”. Mr Read said words to the effect: “It’s up to the prosecution to prove the case beyond a reasonable doubt and based on the evidence I have seen I do not believe they could do that. So I am simply going to attack the evidence presented and focus on that.”
11. I then said words to the effect “Ian, by leaving witnesses such as me out, the jury doesn’t get to see the other side of [HM] and [MM], what they are really like.”
12. Mr Read then said words to the effect “We only have four days and I have to fit this in with the time I have”. Both Madeleine and I then said “in other words you don’t want to run over budget on this”. I tried to explain to Mr Read that I could provide firsthand accounts and provide further witnesses to what I had to say but Mr Read replied: “Yes and some of it can be used by the prosecution to cross examine Patrick and I do not think he is mentally up to a severe examination of his evidence.”
13. When Mr Read came back from the afternoon break on the first day of the trial before the Jury he approached me and asked if I could stay another day just in case. What he meant by that I do not know.
14. After the voir dire evidence had been completed Patrick said to Mr Read many times that he wanted to give evidence in his defence. I remember Patrick saying on at least four occasions to Mr Read during trial breaks words to the effect “that evidence is a load of crap”, “I recall this” or “I can explain this”. On each occasion Mr Read said: “No I’m not going to put you in the box.” Patrick said: “I want to give evidence.”
15. The next day, that is the second day of the trial before the jury, Patrick and I spoke to Mr Read about Patrick giving evidence in his trial. I told Mr Read that Patrick wanted to give evidence and I asked him to change his mind. Mr Read replied that “to change my strategy at this crucial time would surely cost me the case.” This was on the morning of the trial when [MM] was giving evidence.
16. I left Darwin the day before the trial was completed. By then Mr Read had told me he was not calling me as a witness. Mr Read told me that he was confident that Patrick would be found “not guilty” after [HM] gave an unusual answer to one of his questions.
17. After I learnt that Patrick had been found guilty of the charges, Mr Read rang me and apologised for “messing this up”. Mr Read asked me if I would pay for an appeal. I told him that I could not afford this and that Patrick would need the help of NTLAC and that he should focus on that.
(Emphasis added)
Peter Smythe had been an investigator for some 30 years, including with the Department of Customs, the Australian Taxation Office and the Australian Federal Police.[92] During cross-examination before this court he was adamant that Mr Read did not make it clear to the applicant, either during the meeting following the voir dire[93] or during the trial,[94] that it was the applicant's choice whether or not to give evidence. He said that on each of the four occasions referred to in paragraph 14 of his affidavit, himself, the applicant, Madeleine Smythe, Mr Read and Ms Franz were present.[95] He said that he heard Mr Read say to the applicant that he could not give evidence “at least once”.[96]
He was asked about the accuracy of his memory of what Mr Read had said to the applicant some six years earlier at the time he swore his affidavit in June 2016. He initially referred to “notes … of recollections” that he had taken. When pressed as to why those notes were not annexed to his affidavit he said they “were taken prior to the trial”.[97] He said he had only spoken to members of Barossa Chambers and Mr Apps about what Mr Read had said to the applicant. He then said he had also spoken to his brother Richard, who has been the person authorised to act on behalf of the applicant while he was in prison.[98]
Peter Smythe was then asked about his evidence in paragraph 15 of his affidavit that: “I told Mr Read that Patrick wanted to give evidence and I asked him to change his mind.” He said that the applicant “was asking me why he couldn’t [give evidence], because being a policeman he relied on my opinion". The following exchange then took place:[99]
Mr Smythe, as a police officer and a former investigator with both Customs and the ATO were you aware at this time that ultimately it was the client’s determination whether or not to give evidence - whilst barristers might give vigourous advice in relation to those matters, that ultimately it was the client’s call? --- Vigourous advice, yes, a bit of an understatement. But I would argue that I was aware of my brother’s mental health issues and with his pleading to go and speak to Mr Read, that’s why I did it.
But you were also aware, I take it from your answer, that ultimately it was your brother’s call to instruct whether or not he gave evidence? --- Certainly that’s … the legal definition. But I understand there is discretion allowed in courts. And if it ever became an issue … I was convinced and so were a number of other people that [the applicant] just, he wasn’t playing with a full deck of cards.
…
… But as at that time though, in terms of the relationship between [the applicant] and his lawyer, Mr Read, you understood that [the applicant's] legal right was to insist on giving evidence regardless of what advice his barrister gave him about that? --- And I told [the applicant] that.
(Emphasis added)
When he was asked what he meant when he said that the applicant wasn’t playing with a full deck of cards, Peter Smythe said that the applicant “hasn’t been well for a long time". He also said that he did have concerns about the applicant giving evidence in the trial. He was very angry. Peter Smythe said he had harboured concerns about the applicant since his return from Vietnam.[100]
Madeleine Smythe
In her affidavit of 11 January 2016[101] Madeleine Smythe deposed:
4. On the first day of the trial and after the evidence without the jury being present was concluded I remember a discussion between Mr Read, Patrick, Peter and myself. I remember the following parts of the discussion:
Mr Read said words to the effect: “I do not want you (Patrick) to take the stand because of the comment you made when you went camping with [HM].”
Patrick said: “I want to take the stand; I want to tell my side of the story.”
Mr Read said words to the effect: “The prosecution will take you (Patrick) to pieces.”
Patrick was adamant he wanted to take the stand.
5. In an interview room inside the court building at the end of the first day of the trial hearing, Peter and I asked Mr Read why he was not going to let Patrick take the stand. Patrick was with us. Mr Read kept saying that what Patrick said about the camping trip was the problem. I do not remember Mr Read asking Patrick to explain why he gave the answer about the camping trip that concerned Mr Read.
6. Patrick appeared to be in a state of shock. He was bitterly disappointed that Mr Read was not going to let him give evidence.
7. I think on the third day of the trial Peter spoke to Mr Read regarding the calling of medical evidence and whether Mr Read was going to call him and Tanya Smythe to give evidence. Mr Read said he would let Peter know about giving evidence.
8. During the remainder of the trial Patrick kept asking Mr Read to let him give evidence. Mr Read still said no. This happened on numerous times in my presence. Patrick was never given a choice about giving evidence by Mr Read in my presence.
9. I know that after court Patrick kept saying to me that the evidence was a load of crap and he wanted to give evidence to tell his side of the story.
10. I do not remember any conversation between Mr Read, Patrick, and Peter regarding Patrick’s mental health during the trial.
11. I had continually queried Mr Read about his conduct of the trial. At one stage he told me that we do things differently in the Northern Territory. He said: “You are not in South Australia now.”
(Emphasis added)
[154]Tanya Smythe's evidence concerning the dealings in November 2001, both in her affidavit and in her notes, concerned conversations she says she had with MM and HM during a four-day visit to see the applicant and his family in Darwin. Tanya Smythe’s husband and daughter also travelled to Darwin at that time. Tanya Smythe says that during that four day period MM often spoke about her unhappy relationship with the applicant. She says that MM and HM talked about “how they would get rid of boyfriends and a hubby”, including to “call rape”.[150] In the notes she emphasised, in capital letters, that at no time while she and her husband were in Darwin “was there any suggestion from [HM] to watch out for any unusual behaviour from [the applicant]".
[155]Tanya Smythe's evidence concerning the dealings in October 2005, both in her affidavit and in her notes, concerned an occasion three or four days before the wedding of Kylie Smythe (a niece) in Adelaide. The applicant and MM, together with their children RM and KM (but not HM), had driven down to Adelaide for the wedding. In her affidavit, Tanya Smythe describes a conversation which took place at a café in Adelaide during which MM expressed hatred for the applicant and wished him gone in profane and highly disparaging terms. During the car trip on the way back from the cafe to where MM was staying, MM continued to complain about the applicant, saying amongst other things that she wanted him to drop dead and that if he was dead she would get everything.
[156]Tanya Smythe said in her evidence that she was concerned about what MM was saying and told Richard Smythe of her concerns. In her notes she capitalised the words “full tirade” when describing MM’s complaints at the café about the applicant. She also capitalised the words “have to get rid of him”, which she records MM as saying during the car trip home from the café.
[157]Tanya Smythe's notes then refer to an occasion when she and Richard Smythe were visiting Davina Smythe and her husband Kieron Smythe, who is the applicant’s youngest brother. She describes a conversation between herself, Davina Smythe and Kylie Smythe (Davina’s daughter) about the applicant and MM. During the course of that conversation Davina Smythe said that she had been in contact with MM who had disclosed she “didn’t want to be with [the applicant] anymore”. During the course of that same conversation Kylie Smythe said that "she totally supports [MM] and that it would be no loss if [the applicant] committed suicide and that she would help him with that”.
[158]Tanya Smythe's notes then refer to another conversation that she had with Davina Smythe in which Davina told her that she had been in constant conversation with MM “wanting to try and sort something out with the girls allegations”. The notes also record that Davina Smythe said derogatory things about Peter Smythe and others, and made allegations about money being embezzled and about Peter Smythe helping the applicant to fly somewhere in Western Australia so “he wouldn’t be around to answer to the sexual abuse allegations”.
[159]The next entry in the notes is headed “13th 14th 15th December”. Tanya Smythe records that she received a phone call from Kylie Smythe “asking whether she should telephone HM and tell her to go to the police and corroborate both their allegations, and that by the pair of them getting together it should be a sure thing to get the f--king bastard.” The notes also record that Kylie Smythe said “she felt she had better ring HM because HM at this stage was RELUCTANT TO WANT to proceed with going to the Police Station and making a statement.”
[160]The final page of the notes begins abruptly and is incomplete. It starts with the sentence: “Also came through Davina to us on telephone November - December 2007 that Patrick had sexually assaulted Kylie.” The notes record that Davina Smythe had requested Tanya Smythe and Richard Smythe to visit them as she was feeling very distressed about this news; and that MM had rung Davina Smythe stating that the applicant had sexually assaulted HM and had suggested that Davina Smythe should speak to Kylie Smythe to see if she had been sexually assaulted as well. The entry records further that Davina Smythe said that she had gone around to Kylie Smythe's house the next day and told her that HM had accused the applicant of wrongdoing; and that Kylie Smythe had then told Davina Smythe that the applicant had inappropriately touched her but that she didn’t want to go into any details as that would be disturbing for Davina Smythe.
[161]The notes then record that Kylie Smythe rang Tanya Smythe, apparently at some time in the period between 18 and 21 December 2007, and asked if she could come and have a chat with her about her situation. Kylie Smythe told Tanya Smythe that the applicant had inappropriately touched her on a number of occasions, but she had not told her parents as she did not want to upset them.
[162]During her evidence in this court Tanya Smythe could not remember when she prepared the notes, but said that it was some time after the applicant was arrested.[151] She said that she and Richard Smythe sat at the table in the cafe in Adelaide with Mr Read “chatting about the case”. She “handed Mr Read [her] notes, he perused them for a few seconds and gave them back to [her].”[152] She later said Mr Read “read it for about 10 to 20 seconds and he handed it back saying he didn’t want a character assassination and that was that. He didn’t read through all the notes. He never ever turned the first page.”[153]
[163]She said that she did not do anything further with the notes after that. She did not give a copy to the applicant or to Peter Smythe or Madeleine Smythe, or send them to the NTLAC. When she was asked whether she did any of those things she said “of course not”, and “I would never do that” because “this is my stuff … I wouldn’t share it.”[154] When she was asked whether it occurred to her that the allegations made by Kylie Smythe might be damaging to the applicant's defence of the allegations made by HM, she said that did not occur to her when she made the notes and that she “just noted everything down”.[155]
Ian Read
[164]In his affidavit of 1 June 2016[156] Mr Read says relevantly:
I have great difficulty accepting [Tanya Smythe's] allegations that I was made aware of and I was ambivalent about introducing evidence which disclosed a motive to lie which could have undermined the credibility of the victim and particularly her mother to whom the applicant confessed. Having stated that, and given the passage of time, I comment as follows: I do remember meeting the family in Melbourne Street, Adelaide, having previously conferred at length with the applicant at the SA Legal Services Commission. I have no recollection of being handed the notes attached to Tanya Smythe’s affidavit and I cannot believe that I would have been so dismissive of a family member who was trying to assist with the central issue of motive to lie. Had I been shown such a detailed document, I would have accepted them and studied them further in order to make a forensic decision which was in the client’s best interests. I sought to make the most of the materials available to me which legitimately raised a motive to lie. I note that none of this material was raised in the lengthy pre-trial memorandum prepared by Susan Cox QC or the statement I believe I took from the applicant. I also took a statement from the brother, Peter Smythe, who was with the AFP which concentrates on other issues and the complainant’s conduct.
[165]Mr Read swore another affidavit on 5 May 2017 after refreshing his memory from the notes he made when he was speaking with the applicant and other family members in Adelaide prior to the trial. At the start of his notes appear the words, “Divina: Made allegations against her first husband’s family”. Opposite the word “Tania”, his notes refer to a conversation with MM “five years ago” and “Kylie’s wedding”, and on the following page under the heading “Tania” there are references to the Snakes and Ladders café, and to MM complaining in the car. Under the heading “Richard”, his notes refer to 2001 “Pat’s 50th” and “[HM] there OK – no problems”.
[166]During cross-examination before this court Mr Read said that when he was in Adelaide he wanted to speak to the applicant's family “to get a feel for the family, you know, what problems there may have been etc.” He was also hoping to see Dr Blood about the memory loss issue.[157] He said that he does not believe that he would have used the expression “character assassination”.[158] He understood that term to connote “just seeking purely to denigrate a person’s character, their credibility, that type of attack I suppose.”[159] He repeated what he had said in his affidavit to the effect that he does not believe that he would have behaved in such a cavalier way by returning the document to Tanya Smythe after perusing it for 30 seconds.[160]
[167]Mr Read was asked about the words at the start of his notes: “Divina: Made allegations against her first husband’s family.” He recalled that: “There was definitely in the background an allegation against [the applicant] that there had been some – a sexual offence against a family member … but the allegations didn’t proceed.” He said:
I think we knew about that at an earlier stage because there was this issue. So I mean character was, you know, potentially a difficult issue to raise.
Difficult issue to raise the character of any Crown witness? --- Yeah, well that’s right, if you put your own character in issue.[161]
Submissions and consideration
[168]Shortly before this court adjourned to enable the parties to prepare and file written submissions it made the observation that Tanya Smythe’s notes included material regarding complaints previously made by another family member against the applicant, and that counsel for the applicant would need to explain “why a defence counsel might not have been very wary about calling [Tanya Smythe] given what is contained in those notes.”[162] Counsel was asked to indicate exactly what evidence Ms Smythe could have given or is likely to have given if she were called.[163]
[169]In the Applicant's Written Submissions counsel contended that the failure to call Tanya Smythe as a witness led to a miscarriage of justice. That submission was made in the following terms:[164]
Her potential evidence was highly relevant, in that it not merely would have contradicted the evidence at trial of HM and MM, but it provided motives for both women to make their respective false allegations against [the applicant].
There was a denial of due process to [the applicant], for which there was no rational explanation.
As a result of Mr Read’s incompetence, [the applicant] lost a chance of acquittal.
His failure to call Tanya Smythe was a miscarriage of justice.
…
Her evidence should have been central to the defence case.
If she were to be believed, she had heard MM speak badly of [the applicant].
[170]The submission in relation to Tanya Smythe's evidence concerning what MM and HM had said to her in 2001 was that it:[165]
… may well have been the basis for their actions in the present matter e.g. on the day in question, MM saw that [the applicant] was ill. She arranged with his brother Peter for [the applicant] to fly to Adelaide when [the applicant] was told that Peter was ill. MM then set about obtaining the assets of [the applicant].
[171]The submission followed that when Tanya Smythe met MM again at the time of the wedding in 2005, MM “expressed similar sentiments to those that she had expressed in 2001”. Evidence of those matters would have shown that MM despised the applicant, that she did not love him as she asserted in evidence, and that she wanted to be rid of him.[166]
[172]Counsel contended that Tanya Smythe’s evidence about Mr Read’s dismissal of her notes and his use of the expression “character assassination” should be accepted. The consequence was said to be that if Mr Read had carefully considered the material he would have realised its potential significance as to the motive of both MM and HM in making the allegations they had.[167]
[173]In relation to the court’s advertence to the possible dangers that would have presented had Tanya Smythe been called to give evidence, counsel for the applicant submitted:[168]
If the material had been carefully handled, there was no risk that a reference to an alleged assault by [the applicant] upon Kylie - not proceeded with by SA police - would have been disclosed. It was entirely irrelevant to the proceedings.
[174]On the other hand, counsel for the respondent submits that Tanya Smythe is mistaken in her evidence and that she did not provide the notes to Mr Read. Counsel referred to Mr Read’s very clear evidence that had he been provided with the notes he would have scrutinised them to ascertain whether they assisted in the applicant’s defence. Counsel for the respondent also drew attention to the fact that Richard Smythe had not been called to give evidence in relation to the meeting with Mr Read in Adelaide despite the fact that he was also in attendance. The clear implication in the submission is that the court should infer that Richard Smythe's evidence in relation to that meeting would not have provided any support for his wife's account.
[175]There are a number of difficulties with Tanya Smythe’s evidence concerning the meeting with Mr Read in Adelaide.
[176]First, only a grossly careless and incompetent criminal practitioner would have dismissed and not read a closely-typed five page document handed to him by a close relative and supporter of a defendant leading into a trial in circumstances where that relative had indicated the document contained material which reflected adversely on the credit and motive of the two principal Crown witnesses. There is no suggestion in the objective evidence that Mr Read is such a practitioner. The file notes and correspondence would suggest otherwise. The account is inherently improbable.
[177]Secondly, if the relevant interactions with MM and HM were as recorded in Tanya Smythe’s notes, one would have expected Richard Smythe not only to corroborate her account of the meeting with Mr Read but also to corroborate the dealings recorded in those notes to which he was privy. He was not called to do so.
[178]Thirdly, Tanya Smythe's response when asked why she did not provide a copy of the notes to anyone else, and in particular to the applicant, Peter Smythe and Madeleine Smythe, was not compelling.[169] She would have known of Peter Smythe’s experience, including as a police officer, and that he would have been in a good position to press the notes, or the information contained in them, on the applicant's legal representatives in preparation for the trial.
[179]Fourthly, no explanation has been provided as to why Tanya Smythe did not make this complaint about Mr Read’s conduct and provide her notes to anyone earlier than the time at which she did, some six years after the trial. In particular, she must have known that her husband had been engaged since 2010 in obtaining the files and other documents necessary to prosecute an appeal on behalf of the applicant.
[180]Finally, it is apparent from the notes that Mr Read made during the meeting with Tanya Smythe in Adelaide that he was aware of her assertion that, well before these allegations against the applicant had surfaced, MM had said things to her on a number of occasions that were critical of the applicant; and that allegations had been made that the applicant had also sexually assaulted another young female relative. That does not sit comfortably with an account in which Mr Read dismissed the notes without reading them, and refused to take a copy. It is perhaps more consistent with Mr Read being apprised of those matters in conversation rather than in written form.
[181]We are not satisfied that Tanya Smythe gave the notes to Mr Read, and that having done so he peremptorily dismissed them. Further, we are not satisfied that the notes had been brought into existence at the time of that meeting. It may be that they were created at some time after the applicant’s conviction. That would provide a more plausible explanation of Mr Read’s conduct; Richard Smythe’s failure to corroborate his wife’s claim that the notes were produced at the meeting; Tanya Smythe’s failure to provide the notes to anybody else prior to the trial; and the fact that Mr Read’s record suggests these matters were raised in conversation rather than in written form during the course of the meeting. However, we are satisfied that Tanya Smythe and/or Richard Smythe did tell Mr Read about some of the things recorded in the notes, including the animosity MM is alleged to have expressed towards the applicant during the trip to Darwin in 2001 and at the time of Kylie Smythe’s wedding in October 2005.
[182]That being the factual finding, the issue is then whether Mr Read’s failure to call Tanya Smythe to give evidence in relation to those matters disclosed to him by Tanya Smythe and/or Richard Smythe was “incompetent” and, if so, whether that failure led to a substantial miscarriage of justice. Whether or not Tanya Smythe gave the notes to Mr Read during the course of the meeting in North Adelaide is practically immaterial to those questions. In one way or other, Mr Read was told by Tanya Smythe before the applicant’s trial that MM had expressed her dissatisfaction with and enmity towards the applicant prior to the allegations of sexual abuse being made (perhaps “five years” earlier). Had Mr Read sought to explore that matter with Tanya Smythe she would have furnished him with the information contained in the notes, or some version of that information.
[183]The analysis of whether a forensic choice made by counsel during the course of a trial has resulted in a miscarriage of justice was described by Gaudron J in TKWJ v The Queen in the following terms:[170]
Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that "when viewed in combination with the evidence given at trial ... the jury would have been likely to entertain a reasonable doubt about the guilt of the accused" [Mickelberg v The Queen (1989) 167 CLR 259 at 301].
[184]The first question, then, is whether Mr Read made an informed and deliberate decision not to call Tanya Smythe to give evidence during the course of the trial. Had he been given the notes, and had he studied those notes in accordance with his usual practice, it would be possible to infer that he did make an informed and deliberate decision concerning the matter. However, the finding we have made is that he was not provided with those notes and was given a more spare oral account of the matter.
[185]On the evidence received during the hearing of this application, it is not possible to say that an informed and deliberate decision was made in that respect. We would go further and find on the balance of probabilities that one was not. Although Mr Read’s case concept was that MM and HM had fabricated the allegations to rid the family of the applicant and to have the house signed over to MM, no statement was taken from Tanya Smythe in relation to the question of motive and there is no evidence of an exploration of her account and a consequent determination of whether or not she should be called.
[186]The second question, then, is whether, on an objective assessment, the evidence that Tanya Smythe could have given would have yielded a forensic advantage to the defence such that she should have been called; and, if so, whether that evidence gave rise to reasonable doubt as to guilt. Viewed objectively, there would be both an explanation and a legitimate forensic basis for not calling Tanya Smythe to give evidence at trial. The potential forensic advantage in doing so was outweighed by the risks in pursuing that course.[171]
[187]First, as both the tenor of the notes and the evidence she gave before this court disclose, Tanya Smythe might well be characterised as a partial and unreliable witness who was given to making attacks on MM and HM, and other family members, based upon hearsay and arguably irrational inferences. It would have been necessary to give very careful consideration to the damage that may have done to the defence case before any positive decision to call her was made.
[188]Secondly, had the notes in fact been in existence at the time of the trial, the necessary assumption would have been that the prosecutor would cross-examine Tanya Smythe thoroughly about the accuracy and reliability of her memory of the conversations alleged to have taken place in 2001 and 2005 and compel her to produce the notes, including the allegations of sexual assault made by Kylie Smythe. Even if the notes were not in existence at that time, there remained a very substantial risk that a thorough cross-examination would have teased out that information. There would certainly appear to have been a persistent connection in Tanya Smythe’s mind between the allegations made by MM and HM, and those made by Kylie Smythe.
[189]Thirdly, and contrary to the submission made by counsel for the applicant, there was a real risk that if Tanya Smythe had been called to give evidence the character of the applicant would have been brought into play. It is not correct to say that evidence concerning the applicant’s alleged dealings with Kylie Smythe was entirely irrelevant to the proceedings. That depended on how the defence case was conducted. There is no doubt that calling Tanya Smythe to give evidence of the statements alleged to have been made by MM and HM would have been to cast imputation concerning their character or credit. Three consequences would have flowed from that. First, there would have been an obligation on defence counsel to put the substance of Tanya Smythe’s evidence to MM and HM in cross-examination. Secondly, that would have opened the way for the prosecution to adduce evidence to support the credit of MM and HM which might possibly have extended to a tendency on the part of the applicant to engage in similar conduct. Thirdly, it would have exposed the applicant to cross-examination in relation to matters of character, in circumstances where prior to the conduct of the voir dire proceedings the intention was to call the applicant to give evidence in the trial proper.
[190]Ranged against the forensic risks of calling Tanya Smythe to give evidence, it is objectively likely that her evidence of the conversations in 2001 and 2005, even leaving aside questions of partiality and reliability, would have been assessed by a defence counsel to carry little weight in terms of undermining MM’s evidence concerning the admissions of 30 November 2007. That is particularly so having regard to the fact that those admissions were made to MM at a time many years after the conversations were alleged to have taken place, and many years after HM had left the family home. Nor, for those same reasons, would evidence of the conversations in 2001 and 2005 have carried much weight in relation to HM’s primary allegations of the applicant's offending behaviours between 1995 and 1998.
[191]For Tanya Smythe's evidence to give rise to a fairly open chance of acquittal, or reasonable doubt, it needed to be capable of persuading a jury to doubt both the reliability of MM’s evidence concerning the admissions of 30 November 2007 and HM’s primary evidence concerning the applicant's offending behaviours when she was a child.
[192]There is an air of improbability attending the submission put by counsel for the applicant that Tanya Smythe’s evidence would have led the jury to conclude that on 30 November 2007 MM saw the applicant was ill and took advantage of the situation to arrange with Peter Smythe for the applicant to fly to Adelaide. The more likely scenario is that the conduct of the defence case in those terms would have drawn attention to Peter Smythe’s complicity in that plan and the reasons for it, potentially raising the fact that HM had complained to him in late 2006 that the applicant had sexually abused her.[172]
[193]No substantial miscarriage of justice has been demonstrated by reason of the failure to call Tanya Smythe.
Conclusions and disposition
[194]It follows from what we have said that the proposed grounds of appeal are not made out either factually or on the basis that the incompetence alleged on the part of counsel, even if it had been established as a matter of fact, gave rise to a miscarriage of justice.
[195]As the proposed grounds of appeal involve questions of mixed law and fact, leave is required under s 410 of the Criminal Code. Accordingly, the application for the extension of time is properly characterised as an application for an extension of time within to which to bring application for leave. The merits of the proposed appeal are not such that in the circumstances of this delay an extension of time within which to make application for leave should be granted.
[196]Accordingly, we dismiss the application to extend time within which to make application for leave to appeal against the applicant’s conviction on 3 November 2009, and we dismiss the application for leave to appeal brought under s 410(b) of the Criminal Code. Had an extension of time and leave not been required, we would have dismissed the substantive appeal in any event.
----------------------------
[1] Application Book (AB) 6, 17.
[2] See paragraph 52 of the ruling quoted in [49] below.
[3] (1989) 95 FLR 301 (NTCCA) at 312 (Asche CJ and Kearney J agreeing). That summary was subsequently adopted by Riley CJ in Stamp v The Queen [2012] NTCCA 15 at [12].
[4] Edwards v R [2009] NSWCCA 199 at [8] per Johnson J (Allsop P and Kirby J agreeing); The Queen v King [2009] VSCA 190 at [6] per Ashley JA (Neave JA and King AJA agreeing); Etchell v R [2010] NSWCCA 262 at [18] per Campbell JA.
[5] [2009] NSWCCA 199 at [13].
[6] [2002] NSWCCA 199 at [41] (Levine and Simpson JJ agreeing).
[7] Green v The Queen (1989) 95 FLR 301 at 303 per Asche CJ.
[8] See the examples cited by Asche CJ in Green v The Queen (1989) 95 FLR 301 at 303. See also Crabbe v The Queen (1990) 101 FLR 133 (NTCCA) at 136-137.
[9]Sworn on 27 January 2016: AB 763-770 at [64]-[74].
[10]Sworn on 1 February 2016: AB 758-762.
[11] AB 758 at [3.2]
[12] AB 759 at [3.8].
[13]This is presumably a reference to the letter dated 9 January 2013 addressed to Mr Read: AB 831.
[14]AB 760 at [3.11].
[15]It is relevant to note here that Mr Read discussed this issue at some length in his letter of 18 February 2013: see AB 834.
[16]AB 761 at [3.16].
[17] This is presumably a reference to IMM v The Queen [2014] NTCCA 20 and IMM v The Queen (2016) 257 CLR 300.
[18]Submissions on Behalf of the Applicant dated 26 June 2017 (Applicant's Written Submissions) at 22.4.
[19]Applicant's Written Submissions at 21.5.
[20] Transcript of Proceedings dated 6 June 2017 (TS) at 74.2.
[21]Applicant's Written Submissions at 22.9.
[22] Applicant's Written Submissions at 23.3.
[23] Applicant's Written Submissions at 23.5.
[24] Applicant's Written Submissions at 23.9.
[25]AB 761 at [3.20].
[26]AB 879.
[27]AB 881.
[28]AB 883.
[29] AB 829.
[30]AB 831.
[31]AB 834.
[32]AB 883.
[33] The Queen v King [2009] VSCA 190 at [6].
[34] Green v The Queen (1989) 95 FLR 301 at 312.5.
[35] AB 10-328.
[36] AB 329-724.
[37]AB 844-850.
[38]AB 851-860.
[39]AB 840-843.
[40]TS 65.
[41] AB 736.
[42]AB 739.
[43]AB 743.
[44] AB 753.
[45]AB 758.
[46]AB 763.
[47] AB 782.
[48] TS 29.
[49] TS 50.
[50]TS 61.
[51] TS 72.
[52]TS 80.
[53]TS 122.
[54]TS 84.
[55] AB 87.
[56]AB 88.
[57]AB 135-6.
[58] AB 139.
[59] AB 145.
[60] AB 152.
[61] AB 805-811.
[62] AB 804. There is no evidence as to when the note was written beyond the date it carries (see TS 92-3), but it is clear from the content that it was written shortly after the applicant had given evidence on the voir dire.
[63] AB 802.
[64]See Applicant's Written Submissions at 6. Mr Read’s evidence was that the date of 2 November 2009 was reflective of when it was dictated. Mr Read says he may have dictated it over the weekend (see T92), and agreed it may have been a record of a meeting that took place on 29 October 2009.
[65] AB 801.
[66] AB 838.
[67] File Note at AB 800.
[68] AB 788.
[69] AB 797.
[70]AB 814.
[71] AB 213.
[72]AB 820.
[73] AB 827.
[74] AB 829.
[75] AB 831.
[76] AB 834.
[77] Outline of Argument dated 8 November 2016 (Applicant's Outline of Argument).
[78]See for example the heading “Ground 1 – the failure to call PGS as a witness” in the Applicant's Written Submissions at 8.
[79] AB 763.
[80] At AB 772-780.
[81] At AB 851-860.
[82] TS 7.
[83]TS 8.
[84] TS 21.
[85] TS 21.7.
[86]AB 814.
[87]TS 24.
[88] TS 24-5.
[89] TS 25.
[90] TS 27.
[91]AB 753-7.
[92] TS 39.
[93] TS 38.
[94] TS 41.2.
[95] TS 40.
[96] TS 40.
[97] TS 42.
[98] TS 43.
[99] TS 45-6, 47.6-48.3.
[100]TS 47.7.
[101] AB 739.
[102] TS 52.9.
[103] TS 54.
[104] TS 55.
[105] AB 838.
[106]TS 56-7.
[107]AB 782-786.
[108] TS 87.
[109] TS 89.
[110] TS 96-7.
[111]TS 101-6. Mr Read also referred to his notes dated 28 October and 2 November 2009.
[112] TS 107.5.
[113] TS 107.
[114] TS 107.
[115] TS 108.
[116]TS 113.2.
[117]TS 116-118.
[118] Affidavit of 5 May 2017 at [9].
[119]TS 124.
[120] TS 125.
[121] TS 125.
[122]Exhibit A1.
[123]TS 128.
[124]TS 128.8.
[125]AB 831.
[126] AB 834.
[127]TS 132.7.
[128] TS 129-130.
[129] TS 132.8.
[130] TS 134.7.
[131] TS 134.9.
[132] Applicant's Written Submissions at 8.
[133] Applicant's Written Submissions at 10.
[134] TS 102.2.
[135]TS 104.2.
[136]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at [90]-[91].
[137] See Lloyd letter dated 9 January 2013 at AB 831.
[138]See Read letter dated 18 February 2013 at AB 834.
[139]See [82] above, which evidence was contradicted by Peter Smythe in the passage underlined in [88] above.
[140]See Reply to Respondent’s Submissions on the Evidence dated 28 July 2007 (Applicant's Reply) at [1.4] – [1.11].
[141]R v Birks (1990) 19 NSWLR 677; Nudd v R (2006) 225 ALR 161; TKWJ v R (2002) 212 CLR 124; R v The Queen [2008] SASC 35; R v Heeremans (2007) 249 LSJS 49; Bass v The Queen [2014] VSCA 350.
[142][2018] HCA 13 at [23]-[24].
[143]Craig v The Queen [2018] HCA 13 at [27].
[144]Craig v The Queen [2018] HCA 13 at [33]-[34].
[145]The issue in Craig v The Queen was that the appellant's counsel had incorrectly advised him that giving evidence would likely lead to cross-examination on prior convictions.
[146]See, for example, TKWJ v R (2002) 212 CLR 124; Nicholls v R [2016] VSCA 250.
[147]See Nicholls v R [2016] VSCA 250 at [99], [112], [116].
[148] Outline of Argument dated 8 November 2016.
[149] AB 743-752.
[150] The words “call rape” were written in capital letters in the notes.
[151] TS 65.
[152]TS 67.
[153] TS 68.
[154]TS 68-9.
[155]TS 70.
[156]AB 785 at [6].
[157] TS 110.
[158] TS 83.8 and 110.6.
[159]TS 83.9.
[160]TS 111.9.
[161]TS 114.8.
[162] TS 137.
[163] TS 138.6.
[164] Applicant's Written Submissions at 14.
[165] Applicant's Written Submissions at 15.4.
[166]Applicant's Written Submissions at 15.
[167] Applicant's Written Submissions at 16.
[168] Applicant's Written Submissions at 16.
[169] That response is described at [163] above.
[170]TKWJ v The Queen (2002) 212 CLR 124 at [33].
[171]See, for example, TKWJ v R (2002) 212 CLR 124; Nicholls v R [2016] VSCA 250.
[172] See the examination of that matter in the context of the question whether Peter Smythe should be called to give evidence at AB 835.
Key Legal Topics
Areas of Law
-
Criminal Law
-
Evidence
Legal Concepts
-
Appeal
-
Charge
-
Procedural Fairness
-
Sentencing
-
Expert Evidence
0
20
0