Webster v White (No 2)

[1991] TASSC 80

Serial No 64/1991
List "A"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Webster v White (No 2) [1991] TASSC 80; A64/1991

PARTIES:  WEBSTER, Darren John
  v
  WHITE, Graham Ross

FILE NO/S:  LCA 110/1990
DELIVERED ON:  22 August 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  A64/1991
Number of paragraphs:  8

Serial No 64/1991
List "A"
File No LCA 110/1990

DARREN JOHN WEBSTER v GRAHAM ROSS WHITE (NO 2)

REASONS FOR JUDGMENT  ZEEMAN J

22 August 1991

1. On 13 August 1991 I held that none of the grounds upon which the applicant sought to review his convictions had been made out (Serial No 58/1991). I have yet to hear argument upon the ground contained in the notice to review upon the basis of which it is sought to review the sentences imposed. Upon the matter coming before me for such argument, counsel for the applicant sought to proceed with an application filed on 22 February 1991 seeking an order pursuant to s111 of the Justices Act 1959 ("the Act") that the complaint be heard de novo. That application has not previously been determined. Although the way in which this matter has previously proceeded gave the impression that the application for a hearing de novo was not being proceeded with, it has never been abandoned. Whilst a valid notice to review is a prerequisite to the exercise of jurisdiction under s111 it is not a prerequisite for validity that any ground be made out. It is a prerequisite for validity that the notice to review set forth as a ground an allegation of the type referred to in s107(4) of the Act. There appears to be no impediment to my now determining that application. Counsel for the respondent did not seek to submit otherwise. I therefore proceed to determine that application.

1. The orders sought to be reviewed do not fall within s111(3), so that there is jurisdiction to make an order. The jurisdiction conferred by s111 is discretionary. By virtue of s111(4), an order may not be made unless I am satisfied that having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo. The provisions of s111(5) specify particular circumstances in which an order may be made. None of those circumstances exist. The matters which I am to determine are:

1Whether I am satisfied that having regard to all the circumstances, the interests of justice require that the complaint be reheard de novo; and

2If I am so satisfied, whether the complaint should be reheard de novo.

1. The applicant has no prima facie entitlement to a hearing de novo (Mundy v Cole [1979] Tas R 311 (NC 14)), but must satisfy me that there ought to be an exercise of the discretion in his favour. Only one circumstance making it appropriate for me to exercise my discretion in the applicant's favour is suggested. It is that the applicant was deprived of a fair trial because an important witness for the defence was not called, and that he was not called as a result of the incompetent advice tendered to the applicant by his legal advisers. Upon the evidence which I have, I am satisfied of the following facts:

1The witness Steven Cole was an important witness in that if he had been called and if his evidence had been accepted, or if it had engendered sufficient doubt in the mind of the learned magistrate to lead him to the conclusion that his version of the facts might reasonably be true, it would have resulted in the acquittal of the applicant.

2The applicant was incompetently advised as to various matters relating to the calling of Steven Cole as a witness. I have referred to the specific erroneous advice in my earlier reasons for judgment.

3Had the applicant been properly advised, he would have requested Steven Cole to attend the hearing to give evidence, and Steven Cole would have attended for that purpose.

1. Upon the basis of those facts, I need to consider whether the interests of justice require that the complaint be reheard de novo.

1. Plainly, it is insufficient for the applicant merely to demonstrate that if his trial had been conducted differently, the outcome might have been different. With respect, I would adopt what Demack J said in Swan v R (1987) 27 A Crim R 289, at p293, as follows:

"It seems to me important to affirm that when a trial is properly conducted as the record of this trial shows occurred, a convicted person will not ordinarily be allowed a second attempt to acquire acquittal because he has not properly prepared for the first trial. It seems to me essential in the administration of justice that this rule should be regarded as one of prime importance.

It seems to me also important to affirm that when an accused person is represented by counsel he has to accept the manner in which counsel conducted the trial so that in the ordinary course it is not possible in this court to seek a new trial on the basis of counsel’s conduct which inevitably involves questions of tactics and of forensic advantage."

1. The interests of justice do not require a new trial merely because counsel does not call an available witness. I would adopt as a correct statement of principle what Hunt J said in Ristevski v R (1989) 39 A Crim R 11, at p14:

"In my view, it is not a miscarriage of justice where counsel for the accused, acting responsibly and upon apparently quite sound tactical grounds, makes a deliberate decision not to call evidence which was available at the trial to be called, notwithstanding that the accused is thereafter convicted and notwithstanding that, if that evidence had been called at the trial, the result could have been different."

1. In the present case there is no suggestion that Steven Cole was not called for any apparently sound reason, but rather that the failure to call him was the result of quite erroneous legal advice. It is not the case that that advice was given for reasons of then apparent force or by way of providing some tactical advantage, but rather it is the case that the advice was given upon the basis of a quite erroneous understanding of the law. The result of that advice was that the case was conducted in a way which may have been productive of a grave injustice to the applicant. I am satisfied that in those circumstances the interests of justice do require that the complaint be reheard de novo and that an order to that effect ought to be made. It follows that the orders of conviction and sentence ought to be quashed to enable a hearing de novo to proceed. I do not consider it expedient that the hearing de novo take place in this Court, but that it is expedient that the complaint be reheard by a magistrate. Section 111(8) of the Act enables me to order that the complaint be reheard by a magistrate.

1. Accordingly, I make the following orders:

1That the orders of conviction and sentence made against the applicant on complaint 908377 be quashed.

2That the said complaint be reheard de novo by another magistrate sitting at Launceston on a date to be fixed by the Clerk of Petty Sessions at Launceston.