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[2002] WASCA 45
Court of Appeal (WA)
2002-03-07
Malcolm CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : AVIS -v- THE QUEEN [2002] WASCA 45
Criminal law - Appeal and new trial - One ground sought to appeal against failure to rule that there was no case to answer - Further ground of error in directing the jury regarding parties to an offence - Counsel indicated that no submissions would be advanced in relation to grounds but they were not abandoned - Counsel sought and obtained leave to withdraw - Appeal adjourned
1 MALCOLM CJ: This appeal against the appellant's conviction on 6 April 2001 for wilful murder was listed to be heard together with the appeal by the appellant's co-accused Mark Douglas Winning in Winning v The Queen CCA 70/2001 on 10 December 2001.
2 The purpose of these reasons is to explain how it came about that the appellant's counsel sought and obtained leave to withdraw and the appellant's appeal was adjourned to a date to be fixed.
3 By a notice of appeal dated 23 April 2001 the appellant appealed against his conviction in the Supreme Court on 6 April 2001 of the offence of the wilful murder of one Howard Lister. Two other persons were convicted of the same offence, namely, Mark Douglas Winning and Julie Anne Harris. It was accepted by the learned trial Judge that Mr Lister's death resulted from a chance encounter between the appellant and his co-offender Mr Winning, on the one hand, and a Mrs Harris, on the other, at the Whitfords Tavern on 23 September 1999. Only Mr Winning gave evidence at the trial. All three of those accused were convicted.
4 The appellant's co-accused Mr Winning made an application for leave to appeal against his conviction on two grounds, namely:
"1. The verdict of the jury was unsafe evidentially in particular there was insufficient evidence to support a verdict of wilful murder.
2. The learned trial Judge erred in not allowing into evidence the criminal record of the co-accused Kevin Leslie Avis."
"1. The learned trial Judge erred in law in not granting an application that there was no case to answer at the completion of the Crown case.
2. The learned trial Judge erred in law in directing the jury in respect to parties of the offence when responding to a question from the jury in relation to an entirely different matter (tp 1195-1204)."
6 Submissions by counsel for the present appellant dated 7 December 2001 were as follows:
"1. Whilst it is not proposed to make any submissions in relation to the appellant's grounds of appeal instructions have not been received to abandon them.
2. Should it be determined that there has been a miscarriage of justice the appellant applies for orders that the jury's verdict be set aside and that there be a re-trial."
7 Upon receipt of those submissions I instructed my Associate to speak to counsel and seek an explanation for the adoption of the position taken in the submissions. As might have been anticipated, so far as ground 1 was concerned, it was acknowledged by counsel that there is no appeal against a rejection of a submission that the accused had no case to answer. Any appeal must be against the conviction: Davis (1990) 50 A Crim R 55 at 56 per Malcolm CJ.
8 As to ground 2, the submission concedes in effect that there was no substance in ground 2. The submission then contains the following in par 3:
"No instructions have been received by the appellant to advance any other grounds of appeal but nor have any instructions been received to abandon his appeal. Should the Court allow the appeal of the co-offender Winning, it is possible that a miscarriage of justice will be identified that also applies to the appellant."
9 Counsel for the appellant who appeared before us at the hearing on 10 December 2001 had earlier appeared before a single Judge and indicated that the appeal was ready to be listed for hearing together with the appeal by Mr Winning. At the request of counsel the two appeals were set down for two days commencing on 10 December 2001. Counsel informed the Court on 10 December 2001 that on 6 December 2001 he had given the appellant certain advice regarding the future conduct of his appeal that the appellant was not prepared to accept. He also indicated that he was not in a position to consider any alternative grounds of appeal.
10 The Court noted, however, that on 24 September 2001 counsel had appeared before a single Judge of this Court and informed the Court that:
"The position with respect to Mr Avis was that the appeals can and should be listed now ..."
An estimate was given that the total time would be about two days to argue both appeals. This led to the listing of the two appeals to be heard together but no appeal book was filed on behalf of this appellant. The matter should not have been listed unless and until an appeal book had been filed and the case had been prepared. In the result, the Court reserved its decision in relation to what steps should be taken in relation to the appeal by Mr Avis pending the hearing and determination of the appeal by Mr Winning.
11 In the result, counsel for the appellant sought and obtained leave to withdraw. Given the circumstances, it is appropriate to set out in full the relevant portion of the transcript leading to counsel's withdrawal. The relevant portion of the transcript is as follows:
"JONES, MR: Yes. Your Honour, it seems to me that given my review of the papers, and I can confirm that that has been a complete review, given my review of the law and in particular the summing up, as I mentioned to your Honours earlier, it seems to me that the two grounds of appeal as stated are clearly without merit, and I think that has to be acknowledged.
It's also the case, your Honours, that sometimes the court can bring to bear, as it were, better brains to an appeal and sometimes counsel can do, and it's also the case that occasionally sometimes the court comes up with an appeal ground that applies to one appellant or to both and it simply would be remiss I think of someone in my position to say that the appeal should be abandoned now in case there is such a ground that perhaps develops through argument that is pertinent to Mr Avis and which would mean that perhaps a miscarriage of justice occurred in his regard.
MALCOLM CJ: What are your instructions?
JONES, MR: Sir, my instructions today are that he doesn't wish to abandon his appeal. He says to me that he would like the opportunity to consider the transcript himself and he would like the opportunity to come back and argue grounds that he feels confident that he can develop in the time that's available to him.
STEYTLER J: Are you still his counsel?
JONES, MR: Sir, my role - in essence, it seems to me that my appearance today is - and I note that I haven't been of much assistance, but my role in some way is simply as a friend of the court.
STEYTLER J: No, that's not your role. You are instructed by Mr Avis. I have never heard of counsel instructed by anyone coming down to court and saying, 'I still appear for him for the purposes of arguing the appeal, but the appeal has no merit.' You either act for him, in which case you do your best for him, and what I'm hearing is a long way removed from that, or you withdraw.
JONES, MR: I think I will have to withdraw, sir. When I spoke to Mr Avis, I said to him, 'Look, these are your options: you can decide to bat on if you want to, if you feel that you can identify appeal grounds or,' as I mentioned earlier, 'there's another course that you can do which is to abandon your appeal. Do you feel confident that you would be able to do that?' He said to me that he wasn't and I said to him, 'Well, I'm happy to come down to court and explain the position to try and ease any confusion that there might be.' I haven't succeeded in that and my apologies for that, but that is his position.
MALCOLM CJ: Mr Jones, the court will grant you leave to withdraw but the court considers that the conduct in relation to this matter has been far from satisfactory and you have incurred a great deal of displeasure - - -
JONES, MR: Sir, I accept that.
MALCOLM CJ: - - - and not done your client a great service by putting him in this position. Mr Avis, could you please stand? Mr Avis, your counsel has sought and obtained leave to withdraw. This means that if you wish to pursue your appeal, you are now on your own and that's not an entirely satisfactory position."
12 Counsel then apologised to the appellant and to the Court and was given leave to withdraw. The Court then proceeded to hear the appeal by Mr Winning and reserved its decision. At the conclusion of the argument on the appeal by Mr Winning, the appellant Mr Avis indicated that he wished time to prepare to argue his appeal which was adjourned to a date to be fixed on the basis that it would be listed in February 2002 if possible.
13 STEYTLER J: I have read, in draft, the reasons of the Chief Justice. I agree with them.
14 OLSSON AUJ: I am entirely in accord with the reasons of the Chief Justice in relation to the grant of leave by the Court to the appellant's counsel to withdraw and the adjournment of the appeal to a date to be fixed.
# Avis
The Queen \[2002\] WASCA 45