Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against conviction - Whether incompetent self­representation made trial unfair

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Durani v The State of Western Australia [2012] WASCA 172

Lancaster v The Queen [1989] WAR 83

McMahon v The State of Western Australia [2010] WASCA 143

Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614

R v Frawley (1993) 69 A Crim R 208

SAM v The State of Western Australia [No 2] [2016] WASCA 64

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

Wimbridge v The State of Western Australia [2009] WASCA 196

Wong v The Queen [2001] WASCA 32; (2001) 159 FLR 328

1 Neil James Duckworth applies for an extension of time within which to appeal from his conviction on 21 charges of stealing as a director of a company, contrary to s 378(8) of the Criminal Code (WA), following trial by judge and jury in the District Court. He was acquitted on two other counts of the same offence - in one instance as a result of a determination by the trial judge that there was no case to answer and in the other instance by the verdict of the jury.

2 Mr Duckworth represented himself during the trial. The circumstances in which he came to represent himself will be described in more detail below. In May 2015, approximately 18 months after the expiry of the time limited for the commencement of an appeal, Mr Duckworth, still acting on his own behalf, lodged an appeal and an application for an extension of time within which to appeal.

3 The appellant's case originally lodged by Mr Duckworth in support of his appeal identified 42 separate proposed grounds of appeal. Happily, Mr Duckworth subsequently obtained legal representation for the purposes of his appeal and the grounds originally proposed were all abandoned and replaced by a single ground, to the effect that Mr Duckworth's trial was unfair and constituted a miscarriage of justice because he was so incompetent in representing himself. Leave to appeal has been granted in respect of that ground, although the application for an extension of time has been referred to this court for consideration in conjunction with the appeal.

4 Mr Duckworth was charged with stealing various amounts from Ocean Key Holdings Ltd (OKH), a company of which he was as director at all material times.

5 OKH was incorporated as a proprietary company (Ocean Key Holdings Pty Ltd). A company controlled by Mr Duckworth held all of the initial issued capital in the company. The sole asset of the company was a parcel of land near Lancelin, north of Perth. Mr Duckworth's objective was to generate profit by improving, subdividing and then selling the subdivided portions of the land.

6 In order to raise some of the capital necessary to undertake the subdivision, OKH was converted into an unlisted public company and two additional directors were appointed.[1] The additional directors were Mr Stephen Gascoigne and Mr John Manera. It was common ground at trial that Mr Gascoigne and Mr Manera were accustomed to acting in accordance with all directions given by Mr Duckworth and were not personally involved in the management of the company to any significant extent.

7 Following the conversion of OKH into a public company, during the course of 2006-2007, 31 shares in OKH were issued to various investors at $50,000 each, generating $1.55 million. In September 2007, OKH borrowed $1.5 million, secured by a first mortgage over the land near Lancelin.

8 In October 2007, OKH sought a bridging loan of $1.25 million for a period of three months, to be secured by a second mortgage over the land near Lancelin. The letter to the prospective financier, Quantum Credit, asserted that the funds were required by Mr Duckworth 'to assist him with various property development projects he is presently undertaking'.[2] In the result, Quantum Credit were only prepared to advance $900,000 and required additional security, which was provided over land near Moore River owned by Riverfront Properties Pty Ltd (Riverfront), another company under the control of Mr Duckworth. The funds were jointly borrowed by OKH and Riverfront.[3]

9 The prosecution alleged that Mr Duckworth instructed Quantum Credit to advance part of the funds to be borrowed by way of a bank cheque in the amount of $150,000, which he used to pay down a personal borrowing (count 1), and to transfer a further $50,000 of the funds to be borrowed into a personal account held jointly in the name of Mr Duckworth and his wife (count 2).

10 The balance of the funds advanced by Quantum Credit were transferred into OKH's bank account.

11 The remaining counts on the indictment alleged that Mr Duckworth withdrew the money from OKH's account for purposes unrelated to the company by way of bank transfers (counts 3, 5, 6, 7, 11, 21 and 22), cheques drawn against the company's account (counts 4, 8, 9, 10, 13, 14, 15, 16, 17 and 19), and by the issue of bank cheques against the company's account (counts 12 and 20). In respect of counts 13 and 20, the prosecution alleged that the funds were utilised partly for the purposes of OKH and partly for purposes unrelated to OKH.

12 The State case relied heavily on documentary evidence tendered through various witnesses including Mr Gascoigne and Mr Manera, Mr Nicholas Phillips, the accountant for OKH, Mr Marius Grobbelaar of Quantum Credit and others, including Mr Ian Clairs, a lawyer. The prosecution also led propensity evidence from Mr John Boonzaier, an investor who purchased eight shares in OKH for a total of $400,000. The prosecution alleged that Mr Duckworth diverted the funds paid by Mr Boonzaier for the purchase of the shares into his own account, although those matters were not the subject of criminal charges.

13 The prosecution also relied upon statements made by Mr Duckworth during a compulsory examination by the Australian Securities and Investments Commission (ASIC). Although Mr Duckworth could have claimed privilege with respect to the answers he gave during that examination, for the most part he chose not to do so and the trial judge ruled the evidence admissible. The statements made by Mr Duckworth during the course of the examination were consistent with him holding the view that he could do as he liked with OKH's money for various reasons, including the fact that he controlled the majority of the issued shares in the company, and a belief that the company was indebted to him or companies under his control. Given the nature of those statements, the prosecutor anticipated a defence of honest claim of right and opened the prosecution case on that basis.

14 Mr Duckworth first appeared before the District Court on 19 October 2012. He was not legally represented but advised the court that he was arranging legal representation, subject to the arrival of some funds he was expecting.[4] At another appearance before the court on 2 November 2012, Mr Duckworth advised the court that he had been in contact with a barrister, and that funds would be available to pay that barrister within six weeks.[5] On the basis of that advice, the trial was listed to commence on 6 May 2013, a date chosen by reference to the availability of the barrister Mr Duckworth proposed to engage.

15 On 3 December 2012, the court was advised that Mr Duckworth would have a lawyer on the record by the end of January.[6] When that did not come to pass, on 4 February 2013 Mr Duckworth suggested that representation would be secured by the first week of March.[7] On 7 March 2013, he advised the court that he would be represented 'in the next week or two'.[8]

16 On 21 March 2013, Mr Yin, a solicitor, appeared for Mr Duckworth and advised the court that he would assist Mr Duckworth in his application for legal aid if the funds he was expecting did not materialise.[9] This was the first point at which Mr Duckworth adverted to a possible application for legal aid. Mr Yin briefed counsel, Mr Elliott, who appeared for Mr Duckworth at a number of subsequent pre-trial hearings, but neither Mr Yin nor Mr Elliott ever went on the court record.

17 The trial was listed to commence on Monday, 6 May 2013. On Friday, 3 May 2013, Mr Elliott advised the court that it was unlikely that legal aid would be granted to Mr Duckworth.[10] The trial judge granted an application to vacate the trial dates and adjourned the trial to a date to be fixed. Mr Duckworth was advised that the adjourned trial would proceed whether or not he was represented.[11]

18 The trial was relisted to commence on 23 October 2013. On 18 October 2013, Mr Duckworth again applied for an adjournment. He asserted that, if granted more time, he would be able to arrange legal representation. In the light of his repeated representations to that effect over the preceding 12 months, none of which had come to pass, the trial judge understandably concluded that he could have no confidence that Mr Duckworth would be able to secure legal representation if another adjournment was granted. Given that Mr Duckworth had been on notice for more than five months that the trial would proceed irrespective of his representation, his application for an adjournment was dismissed and the trial proceeded.[12]

19 No appeal has been brought from the decision of the trial judge to refuse the adjournment sought. Further, counsel for Mr Duckworth confirmed[13] that no reliance is placed on the principle enunciated in Dietrich v The Queen.[14] No evidence has been adduced on the question of whether an application was in fact made for legal aid, and if so, the grounds upon which the application was declined (if in fact it was declined). Nor has any evidence been adduced with respect to Mr Duckworth's financial circumstances. The only matters to which counsel could point as and by way of some form of explanation for Mr Duckworth's lack of legal representation at trial was the various statements which he made to the court in the 12 months preceding the trial.[15] Those unsworn statements are not, of course, evidence. At all events, given that no complaint is made with respect to the trial judge's refusal of the application for an adjournment, nor any reliance placed upon the principle enunciated in Dietrich, the appeal must be determined on the basis that this is not a case in which an accused person was unable to secure legal representation through no fault of their own.

20 When it became apparent that Mr Duckworth was likely to be representing himself at trial, he was given every assistance reasonably practicable. The Chief Judge of the District Court provided him with a document which contained some general information for unrepresented persons accused of criminal offences.[16] The Chief Judge also directed that the prosecutor serve upon Mr Duckworth a document setting out the substance of the State's opening address at least seven days prior to the commencement of the trial.[17] On the opening day of the trial, the trial judge delivered a substantial address with respect to the trial process and Mr Duckworth's rights during that process prior to the empanelment of the jury.[18] A typed version of that address was provided to Mr Duckworth. Further, during the course of the trial, the trial judge gave Mr Duckworth as much assistance as could be expected, given the need to maintain a proper balance between the parties. The trial judge also gave Mr Duckworth as much indulgence as could be reasonably expected with respect to timing matters, consistently with the need to maintain the orderly conduct of the trial. It would appear from statements made by Mr Duckworth during the course of the trial that he was receiving regular legal advice from an unnamed legal adviser or advisers during the course of the trial.[19]

21 The main thrust of the defence case was to the effect that the prosecution had failed to establish that Mr Duckworth did not have an honest claim of right to the funds which he was alleged to have stolen. Mr Duckworth's honest belief was said to be grounded in the fact that he was at all material times the major shareholder in OKH, and that OKH was, accordingly, 'his company', and that his carriage of the day-to-day decision-making of the company in the absence of other directors meant that there was no real distinction between OKH and himself. His honestly held belief was also said to derive from the fact that the general account used by OKH was in his name, and from his belief that OKH owed him money for work which he had done on behalf of the company, and as a result of loans which he had made to the company.

22 Although Mr Duckworth was advised of his right to make an opening statement, he declined to do so.[20] Although he did cross-examine prosecution witnesses, he did not do so extensively. Although Mr Duckworth was well aware of his right to give evidence on his own behalf, he elected not to do so.[21] His appreciation of his capacity to call evidence on his own behalf is apparent from the fact that he called three witnesses who spoke generally to his character and trustworthiness.

23 It will be necessary to refer in greater detail to Mr Duckworth's conduct of his defence in due course.

24 As I have noted, this appeal was commenced approximately 18 months out of time. The principles applied by this court in deciding whether to grant an extension of time within which to commence a criminal appeal in cases involving lengthy delay are well settled:[22]

Where there has been a lengthy delay the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.

25 In Wimbridge v The State of Western Australia,[23] Buss JA identified the five principle factors generally considered in deciding whether to exercise the discretion to extend time:

First, the nature and extent of the delay. Secondly, the reasons for delay. Thirdly, the proposed grounds of appeal and their merits. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors.

26 Dealing with these factors in turn, in this case the extent of the delay is significant. Turning to the reasons for delay, Mr Duckworth provided explanations for the delay in an affidavit sworn in support of his application for an extension of time.[24] In that affidavit, he asserted that in the 11 months following his conviction and sentence, he engaged two law firms to act on his behalf, but neither of those firms commenced an appeal. No meaningful explanation for the failure of each firm to commence an appeal is proffered in Mr Duckworth's affidavit. Thereafter he began the preparation of an appeal himself, although his attempts were frustrated by his incarceration, which limited his access to legal resources. In short, there are no compelling reasons or justification for the substantial delay established by the evidence before this court.

27 Turning to the merits of the appeal, it should be noted that this factor alone will not generally be so compelling as to justify the grant of an extension of time - in the vast majority of cases, more must be shown.[25]

28 Turning to the fourth factor relating to prejudice to Mr Duckworth, Mr Duckworth has been granted parole and is no longer in custody. However, this is, of course, not to suggest that he would suffer no prejudice if an extension of time is refused, given his assertion that he was convicted following an unfair trial.

29 Turning to the final factor, the State does not submit that it would suffer any prejudice if an extension of time were granted.

30 In summary, factors relevant to the exercise of the discretion to grant an extension of time other than the merit of the appeal do not provide a strong case for the exercise of the discretion in favour of Mr Duckworth. If the appeal has no merit, it is clear that the extension of time sought should be refused. It is therefore necessary to now turn to the merit of the appeal.

The appellant received an unfair trial because he was not represented by counsel and manifestly lacked the competence and ability to represent himself, resulting in a miscarriage of justice.

32 Particulars to the ground place particular reliance upon the seriousness of the charges which Mr Duckworth faced, the complexity of the trial, his limited understanding of trial procedure and the rules of evidence, and his election not to give evidence in his defence, which was said to deprive him of the capacity to raise and advance the defence of honest claim of right.

33 The principles governing the circumstances in which an appeal against conviction will be allowed on the basis of deficient representation at trial have generally been enunciated in cases in which the accused was represented by a legal practitioner. I will deal first with the principles enunciated in that context before turning to the particular considerations which apply when an accused is self-represented.

34 The following passage from the judgment of McHugh J in TKWJ v The Queen[26] is commonly cited as the classic statement of principle in this area:

But how does a court of criminal appeal determine whether counsel's conduct of the trial has led to a miscarriage of justice? By what standards is counsel's conduct judged? And, if counsel has failed to present the case properly, must the appellant show that the conduct possibly affected the verdict? The unattractive answer to the latter question must be that it depends on what counsel did or did not do.

In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel's conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel's conduct might have affected the result.

But in other cases - perhaps the majority - the conduct of counsel - although irregular - will not necessarily deprive the accused of a fair trial. Not every error makes the trial unfair. Nevertheless, the irregular conduct of counsel may have affected the outcome. And a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person.

35 The two categories of case posited by McHugh J have been accepted in subsequent cases in this and other courts.[27] In the first category are cases in which there has been such a significant departure from the notion of a fair trial according to law that it is unnecessary to establish that the conduct of counsel might have affected the verdict. In the second category are cases in which an error by counsel constitutes a material irregularity within the notion of a fair trial according to law. In that category of case, it is necessary to establish that the irregularity or irregularities caused a miscarriage of justice because it or they give rise to a significant possibility that it or they may have resulted in the conviction of an accused person.

36 The distinction between the two categories of case was considered in this court by McLure P in McMahon:[28]

The appellant has to demonstrate that the conduct of his counsel caused a miscarriage of justice, a task which constitutes a heavy burden: TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [74] (McHugh J). That is a consequence of the adversarial nature of a criminal trial and the role and function of counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involved errors of judgment or even negligence: TKWJ [74], [79] (McHugh J); R v Birks (1990) 19 NSWLR 677, 685 (Gleeson CJ).

In this context, miscarriage of justice has two aspects, process and outcome. If the conduct of counsel has deprived the accused of a fair trial according to law, that will give rise to a miscarriage of justice without regard to whether counsel's conduct might have affected the outcome: TKWJ [76] (McHugh J); Nudd v The Queen [2006] HCA 9 [3] - [7] (Gleeson CJ). This corresponds with that limb of the proviso where there is a serious breach of the pre-suppositions of a trial: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [46]; Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. A complete failure to cross-examine a complainant or a complete failure to address the jury may result in an unfair trial: TKWJ [76]. So too may wrong advice that an accused is not entitled to give evidence: Nudd [17].

In the majority of cases, irregular conduct of counsel will not deprive the appellant of a fair trial. In such circumstances, the ultimate question of whether a miscarriage of justice has occurred raises two issues. First, did counsel's conduct result in a material irregularity in the trial. Secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ [79] (McHugh J); Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 [18] (Hayne J).

The test of whether there is a material irregularity is objective: TKWJ [17], [27] - [28], [107]. Ordinarily, it is difficult to establish a material irregularity when the alleged error of counsel concerned forensic choices upon which competent counsel could have differing views: TKWJ [81]. However, if the error of counsel plainly affected the result of the trial, there will be a miscarriage even though the error involved a forensic choice or judgment. Where the error involves the failure to adduce evidence, there are parallels with the test for the admission of new or fresh evidence: TKWJ [32] (Gaudron J).

37 Counsel for Mr Duckworth made it unequivocally clear that the appeal is brought on the basis that this case falls within the first category - that is, the category of case in which, by analogy to cases concerning the proviso, there has been a serious breach of the presuppositions of a trial. Counsel explained that this is the reason why, when attention is drawn in the submissions to cursory cross-examination or the failure to adduce evidence, no attempt has been made to identify the lines which could or should have been pursued in cross-examination, or the evidence which could or should have been adduced.[29] Put more bluntly, counsel accepted that no attempt had been made to establish that the course taken by Mr Duckworth in conducting his own defence deprived him of the significant possibility of an acquittal. Rather, the appeal is presented on the basis that Mr Duckworth's conduct of the defence was so patently incompetent as to lead to the conclusion that he was not given a fair trial according to law. Counsel echoes the words of McHugh J and asserts that in such a circumstance, if this court were to consider the consequences of the course taken by Mr Duckworth and assess the likely impact of that course on the outcome of the trial, it would substitute trial by court of appeal for trial by jury.

38 There is, however, a fundamental difficulty with this position. Clearly, the departures from the notion of a fair trial contemplated by McHugh J as placing a case in that category are departures of a gross character. As McLure P implicitly recognised in McMahon, McHugh J cannot have intended that any failure to cross-examine any material witness would place a case in that category. Rather, she posited the example of a failure to cross-examine the complainant in a sexual assault case. The other example given by McHugh J in TKWJ was a complete failure to address the jury.

39 So, erroneous advice to the effect that an accused person is not entitled to give evidence might well be such a departure from the notion of a fair trial[30] as to put the case within the first category posited by McHugh J, but the exercise of an election with respect to the giving of evidence by an accused will not put a case in that category and will seldom, if ever, constitute a material irregularity because of the competing forensic considerations which will almost invariably attend a decision of that kind.

40 In this case, Mr Duckworth addressed the jury for more than an hour, during which he emphasised the thrust of his defence, based upon honest claim of right. Given the nature of the prosecution case, there was no single witness, or even small number of witnesses, whose evidence was analogous to the evidence given by a complainant in a sexual assault case, in the sense that the evidence was absolutely critical to the outcome of the case. In any event, Mr Duckworth cross-examined most of the State witnesses, albeit for limited periods.

41 Counsel for Mr Duckworth was not able to point to any especially significant act or omission on the part of Mr Duckworth in the conduct of his own defence which constituted such a gross departure from the presuppositions of a trial according to law as to bring this appeal within the first category of cases posited by McHugh J. Rather, counsel's submission is to the effect that when account is taken of the combined effect of the many matters to which reference is made in the written submissions, it should be concluded that Mr Duckworth's incompetence was so profound as to take the trial outside the boundaries of a trial according to law.

42 There are at least two fundamental difficulties with this approach.

43 First, as the written submissions provided on behalf of Mr Duckworth acknowledge, the issue in cases of this kind is not whether counsel was incompetent, but rather whether what happened or did not happen at the trial constituted a miscarriage of justice.[31]

44 Second, as will be seen, counsel's proposition is, in effect, based upon a conclusion which is said to follow from the combination of a sequence of events in the course of the trial which could only be categorised as 'material irregularities' in the taxonomy utilised by McHugh J. However, because of the position adopted by counsel, as he conceded, no attempt has been made to show the likely consequence of any of those events in terms of, for example, the line which might have been taken in cross-examination of a particular witness, or the documents which might have been adduced in evidence by Mr Duckworth. The problem with that approach is that it leaves open the very real possibility that Mr Duckworth took the course which he took in cross-examination of a particular witness because there was no other line to be taken, or did not press the tender of a particular document because it was of no significance to the case. In that circumstance, it is difficult, if not impossible, to draw the conclusion for which counsel contends - namely, that there has been such a departure from the presuppositions of a trial as to constitute, of itself, a miscarriage of justice.

45 Accordingly, in the circumstances of this case, notwithstanding counsel's assertion that the case falls within the first category posited by McHugh J, it will be necessary to go through each of the instances which are said to sustain that conclusion, and address their forensic significance for the purpose of ascertaining whether, in combination, they are capable of sustaining the proposition advanced by counsel.

46 Although the principles enunciated in the context of deficient legal representation focus upon the question of whether the course of the trial involved a departure from fundamental notions of fairness, or a material irregularity productive of a miscarriage of justice, there is no reason to suppose that those principles are inapplicable to cases such as this, where the miscarriage of justice is said to have arisen from deficient self-representation.

47 However, this is not to say that in cases such as this, which fall outside the principles enunciated in Dietrich, the fact that an accused person has, for some reason or another, represented himself or herself at trial is irrelevant to an appeal of this kind. To the contrary, the fact that an appellant represented himself or herself at trial, for reasons other than indigence, may be relevant to an assertion that the deficiency of representation resulted in a miscarriage of justice in at least three ways.

48 First, the standard of competence to be reasonably expected from a qualified legal practitioner will obviously differ from that reasonably expected of a self-represented accused who is not legally qualified. The application of the former standard in a circumstance in which an accused has, by reason of their own act or omission, not been represented by counsel at trial would be productive of injustice and potential abuse.

49 Second, an accused person representing himself or herself at trial will not have the professional detachment of a legal practitioner who does not have a direct personal stake in the outcome of the trial. The course taken by a self-represented accused during the trial may well be influenced by a broader range of considerations, including personal considerations, than the forensic assessments made by a legal practitioner who has had no prior involvement or relationship with any of the witnesses and who might reasonably be assumed to act in accordance with his or her obligations as an officer of the court. So, while a particular decision made by a legal practitioner might appear forensically inexplicable, a broader range of considerations might explain reasoned and informed decisions made by a self-represented accused.

50 Third, a self-represented accused might perceive potential advantage in conducting the trial in such a way as to give rise to either a miscarriage which results in the trial being aborted, or a good ground of appeal in the event of conviction. Such a motivation should not be inferred lightly, or in the absence of evidence compelling the drawing of such an inference. However, the court should remain alert to such possibilities.

51 I emphasise that the preceding remarks should not be construed as suggesting that the principles enunciated in the cases relating to deficient legal representation do not apply by analogy to cases of self-representation. Rather, the considerations to which I have referred are matters to be borne in mind in the application by analogy of those principles. This approach is consistent with the observations made by Gleeson CJ in R v Frawley:[32]

The fact that the appellant was unrepresented has a number of consequences of significance for this appeal. There was an obligation on the trial judge to render assistance during the trial: Zorad (1990) 19 NSWLR 91; 47 A Crim R 211. The Court will take into account the fact that the appellant was unrepresented in determining its approach to points that were not taken or arguments that were not raised at the trial, and will treat the subject of fresh or new evidence in a more flexible manner than might otherwise be the case. The entire record of the trial proceedings must be scrutinised with particular care to see that no miscarriage of justice has occurred. On the other hand, the circumstances of the case are materially different from those in Dietrich and are closer to those in Greer. The fact that the appellant was unrepresented, resulting, as it did, substantially from his own rejection of the legal advice and representation that was provided to him at public expense, does not of itself amount to unfairness: cf Dietrich (at 335-336; 206-207). The Court must consider whether there was a miscarriage of justice, but it does so in a context in which the fact that the appellant was unrepresented was the result of his own conduct.

This passage was cited with approval by Pidgeon J in Wong v The Queen.[33]

52 With these principles in mind, I turn to the various matters that, in combination, are said to sustain the proposition that Mr Duckworth's presentation of his defence was so deficient as to give rise to a miscarriage of justice.

The matters said to give rise to a miscarriage of justice

53 The various matters which are said, in combination, to give rise to the conclusion that there was a miscarriage of justice are grouped in the appellant's written submissions under the following headings:

• No knowledge of the rules of evidence
• The honest claim of right
• Inability to completely conduct a defence

It is convenient to deal with the matters raised in the same groupings, and in the same order.

54 The first matter relied upon under this heading concerns Mr Duckworth's attempt to tender a document during the cross-examination of Mr Patrick Gan, an ASIC investigator. The document has not been identified or produced to this court, but it seems, from its description in the transcript, to have been an account from Clairs Keeley, a law firm.[34] When objection was taken to the document, the trial judge explained to Mr Duckworth that the document could not be produced in evidence through Mr Gan, who knew nothing of the document. However, Mr Duckworth was told that a witness would be called from the law firm and the document could be put to that witness.[35] That witness, Mr Ian Clairs, subsequently gave evidence, though the document was not put to him by Mr Duckworth. Given that the document has not been produced, it is not possible to form any view as to the forensic significance of its omission, or as to the possible reasons why Mr Duckworth may not have acted upon the advice he was given by the trial judge.

55 Attention is then drawn to a question which Mr Duckworth asked of the same witness, Mr Gan, as to whether 22 cheques were written 'on behalf of the company'. The question was quite obviously and properly disallowed.[36] However, it cannot be inferred that Mr Duckworth suffered any forensic disadvantage from the disallowance of the question, given that the question of whether funds withdrawn from the company's account were deployed for the company's benefit was a central issue in the trial, properly addressed through witnesses other than Mr Gan.

56 I digress to observe that, consistently with the principles enunciated above, the question is not whether Mr Duckworth was competent, but, rather, whether his incompetence caused a miscarriage of justice.

57 Next, reference is made to the brevity of Mr Duckworth's cross-examination of Mr Gascoigne, a director of OKH, and to the following question which he asked in the course of that cross-examination:

Since balance date 31 shares have been issued to investors as at 26 October 2006. This has resulted in a cash inflow of $1.55 million. No other material events have occurred. What would you read from that reference?

58 After that question was properly disallowed, the trial judge advised Mr Duckworth that the documents in evidence generally spoke for themselves, and it was not for witnesses to be asked to draw opinions from them.[37] After expressing some frustration, Mr Duckworth terminated the cross-examination of Mr Gascoigne.

59 Mr Gascoigne's evidence was directed to the various documents which he signed, and which were tendered in evidence through him, and the directions he was given by Mr Duckworth in relation to those documents. As I have noted, it was common ground that Mr Gascoigne was accustomed to acting in accordance with Mr Duckworth's directions in the performance of his duties as a director of OKH.

60 No attention is given in submissions, nor any evidence adduced, to this court to identify what might potentially have been established through a diligent cross-examination of Mr Gascoigne. Given the nature of his evidence, it is not possible to infer that cross-examination would have produced any forensic advantage. This may well be the explanation for the cursory and ineffective cross-examination conducted by Mr Duckworth. At all events, it is not something which is capable of establishing, either singly or in combination with anything else, a miscarriage of justice.

61 Reference is then made to the cross-examination of the other director of OKH, Mr Manera. Prior to Mr Manera being called, Mr Duckworth indicated to the prosecutor that he needed to obtain some documents so that they could be put to Mr Manera. It was agreed that Mr Manera would give his evidence in chief and then be excused without being discharged, in order that he could be cross-examined at a later date, once Mr Duckworth had marshalled the documents he required. The trial judge approved that course.[38]

62 However, after Mr Manera had completed his evidence in chief, Mr Duckworth apparently changed his mind and advised the trial judge that he would prefer to conduct cross-examination then and there.[39] Cross-examination was brief and some questions were disallowed on the basis that they were hypothetical. Other questions were reshaped by the trial judge for the benefit of Mr Duckworth. As with the cross-examination of Mr Gascoigne, neither the submissions on behalf of Mr Duckworth nor any evidence to this court identifies any matter or topic that could have been profitably pursued through cross-examination of Mr Manera, given the nature of his evidence. As with Mr Gascoigne, that may well provide the explanation for the relative brevity of the cross-examination. That brevity does not, either singly or in combination with anything else, point to any miscarriage of justice.

63 As it happened, Mr Manera was recalled to give evidence, and a number of documents were put to Mr Manera by Mr Duckworth and tendered in evidence through him. Mr Duckworth then indicated to the court that he might not have brought to court all the documents he needed, but nevertheless observed 'I'll leave it at that at this stage'.[40] When the trial judge advised Mr Duckworth that there would be no later opportunity to tender documents through Mr Manera, Mr Duckworth did not identify any particular documents that he wished to tender, nor did Mr Duckworth take the matter any further, at any stage in the trial. This sequence of events is entirely incapable of supporting any assertion to the effect that there was a miscarriage of justice.

64 Reference is also made to Mr Duckworth's cross-examination of Mr Grobbelaar, a director of Quantum Asset Management. Mr Grobbelaar confirmed that he had agreed to advance funds to OKH and Riverfront in the circumstances I have already described. Mr Duckworth attempted to cross-examine Mr Grobbelaar with respect to a letter which had been sent by Mr Duckworth's lawyers to Mr Grobbelaar to the effect that a provision in the financing arrangements with respect to a rollover fee was illegal. Objection was taken to the question on the grounds of relevance. The trial judge ruled, quite properly, that the question was irrelevant to any issue in the trial, after which Mr Duckworth asserted that he would 'do it by submission later'.[41]

65 On behalf of Mr Duckworth, it is contended that this interchange shows his lack of understanding of procedure. That proposition may be accepted. However, it by no means follows that there was a miscarriage of justice, especially in a context in which this was not a case in which Mr Duckworth was not legally represented through no fault of his own. Rather, the question is whether Mr Duckworth's lack of knowledge of procedure resulted in a miscarriage of justice. Mr Duckworth's failure to pursue an irrelevant line of cross-examination falls manifestly short of supporting his general contention that the trial miscarried.

66 Next, attention is drawn to Mr Duckworth's attempt to tender a letter from Barker Mortgages to himself in the course of cross-examination of Mr Clairs.[42] When objection was taken, Mr Duckworth asserted 'these documents are so imperative - I've been accused of doing something; this clears my name'.[43]

67 In the absence of the jury, the trial judge enquired as to the relevance of the document in question. In answer to that question, Mr Duckworth referred to an assertion which he claimed was mistaken to the effect that two blocks had been sold to a company, West Sunrise Estate Pty Ltd, when in fact he owned those properties freehold at the time. He went on to assert that he had been accused of 'stealing those blocks and mortgaging them and spending the money'.[44] When the trial judge pointed out that there was no such allegation in the indictment, and that the charges which Mr Duckworth faced were concerned with stealing funds from OKH, Mr Duckworth said '[o]kay, I'll retract that, your Honour. I'm a bit dyslexic, so you've got to bear with me this time, please'.[45]

68 Mr Duckworth went on to assert that what he was really trying to say was that he mortgaged the two lots, and loaned the money which he obtained from those mortgages to OKH. When that proposition was advanced, the trial judge indicated that he would mark the documents for identification and give the prosecution the opportunity to consider whether they could be tendered without having to be authenticated by a witness. The trial judge advised Mr Duckworth that if the prosecution did not agree to that course, it would be necessary for him to call the person who wrote the document to give evidence, unless he gave evidence himself and tendered the documents as documents which he had received.[46]

69 The prosecutor submitted that the matter was much more complex than Mr Duckworth apprehended, and that it was not as simple as money received from mortgages over the land being paid into OKH. The prosecutor submitted that the evidence, if led, would cut across an earlier ruling made by the trial judge excluding propensity evidence which the prosecution had wished to call. When that point was made, Mr Duckworth indicated that he would withdraw the document from tender and await further advice from his lawyers over the weekend.[47] After the trial judge again explained what he understood the position to be to Mr Duckworth, Mr Duckworth reiterated that the document would be withdrawn from tender.[48]

70 On Mr Duckworth's behalf it is submitted that this exchange shows that Mr Duckworth had little or no understanding of the issues relating to the document. However, even if that proposition were accepted, it does not follow that Mr Duckworth suffered any forensic disadvantage as a consequence of his lack of comprehension. That conclusion could only be drawn if it could be inferred that the documents relating to the mortgage of those two lots were somehow relevant to the charges which Mr Duckworth faced. The document which Mr Duckworth sought to tender has not been produced to this court, nor is any inference of relevance to be drawn from a review of the transcript, especially given that, when the prosecutor's position was explained, Mr Duckworth withdrew the tender of the document. That withdrawal may well have come about as a consequence of Mr Duckworth's appreciation of the prosecutor's proposition that detailed enquiry into such matters would result in evidence of Mr Duckworth's propensity to steal money from OKH being led. Given the paucity of the information available to this court, it cannot be inferred that Mr Duckworth suffered any forensic disadvantage by withdrawing the tender of the document relating to the mortgage of two lots.

71 Reference is then made to Mr Duckworth's cross-examination of Mr Boonzaier with respect to a deposit slip. When the witness replied that he had never seen the document before, it was marked for identification,[49] and later tendered in evidence.[50] The contention that this incident reveals Mr Duckworth's lack of appreciation of the laws of evidence might be accepted but I reiterate, the question is not whether Mr Duckworth was incompetent - rather, the question is whether his incompetence caused a miscarriage of justice. Clearly that question cannot be answered affirmatively when the document in question was received in evidence.

72 Attention is next drawn to an exchange between Mr Duckworth and the trial judge in relation to the cross-examination of Mr Tony Tilenni, who had performed accounting work for Mr Duckworth. The trial judge intervened because Mr Duckworth was arguing with the witness, rather than asking questions. In that context Mr Duckworth asserted that money had been paid which 'wiped out' any debt that West Sunrise Estate Pty Ltd owed to OKH.[51] In that context Mr Duckworth told the trial judge 'the money was paid across. I'll prove it another time'.[52] The trial judge then invited Mr Duckworth to ask further questions about the topic, but directed him not to stand at the bar table and argue with the witness.[53] However, Mr Duckworth did not take the matter any further.

73 On behalf of Mr Duckworth it is now submitted that 'it may well have been that the appellant had paid the debt'[54] but no evidence of that fact was adduced. Given that no evidence has been produced to this court to suggest that the debt had in fact been paid, this proposition is entirely speculative and is quite incapable of demonstrating any miscarriage of justice.

74 Reference is then made to Mr Duckworth's cross-examination of Mr Trevor Wilson, the general manager of two related finance companies engaged in lending monies against first mortgaged securities.[55] Mr Wilson gave evidence of the advance of funds to companies associated with Mr Duckworth. He also gave evidence of receiving $150,000 from the funds advanced to OKH and Riverfront by Quantum Asset Management in partial satisfaction of funds advanced to other companies associated with Mr Duckworth by the finance companies managed by Mr Wilson.[56]

75 In cross-examination, Mr Duckworth attempted to put to Mr Wilson reasons for decision given by a judge in Federal Court proceedings which he submitted were critical of the manner in which Mr Wilson's companies had conducted their business.[57] When the trial judge asked how that assertion could be relevant to the charges which Mr Duckworth was facing he asserted that Mr Wilson's companies had 'put him between a rock and a hard place'.[58] When the trial judge asked how that was relevant to the question of whether he might have believed that he had the right to use OKH's money to repay the debt owed to Mr Wilson's companies, Mr Duckworth conceded that it was not relevant but asserted 'I'm just trying to show the man for what he is'.[59] He then agreed to withdraw that line of questioning.

76 As with a number of the matters previously assessed, the fact that Mr Duckworth was precluded from pursuing an irrelevant line of cross-examination is entirely incapable of sustaining the proposition that there has been a miscarriage of justice.

77 Reliance is also placed upon Mr Duckworth's cross-examination of Mr David Highley, an investor in OKH. Mr Duckworth asked Mr Highley whether other shareholders in OKH were supportive of Mr Duckworth. When an objection to the question was upheld on the ground that it invited hearsay, Mr Duckworth withdrew the question.[60] It might also be added that the question was, on any view, irrelevant to the matters which had to be determined by the jury.

78 Mr Duckworth then asked Mr Highley to tell the jury what Mr Boonzaier had been 'up to'. In the absence of the jury Mr Duckworth explained to the trial judge that he wished to lead evidence of Mr Boonzaier sending hate mail to his home and family. When asked by the trial judge how that evidence would be relevant, Mr Duckworth replied:[61]

Well I suppose it doesn't really matter if your Honour puts it that way. So I'll leave it and you make a decision on that one and I'll withdraw it.

79 The trial judge then clarified that Mr Duckworth was withdrawing the question, with the result that it was unnecessary for him to rule upon it, and when the jury returned, Mr Duckworth indicated that his last question was withdrawn.[62] Mr Duckworth then asked Mr Highley whether ASIC investigators had ever suggested to him that they might be able to get his money back for him.[63] When asked by the trial judge how that question was relevant, Mr Duckworth reformulated the question in terms of asking the witness what the ASIC investigators did with 'our property'. When objection was taken to that question on the ground of relevance,[64] the question was withdrawn before the trial judge ruled upon it. There was no further cross-examination.

80 As with the previous matters relied upon on behalf of Mr Duckworth, it might be accepted that the cross-examination of Mr Highley was ineffectual. However, neither that fact of itself nor the fact that Mr Duckworth was prevented from pursuing irrelevant lines of cross-examination are capable of establishing that a miscarriage of justice occurred - at least in the absence of any identification of the evidence which might have been obtained from Mr Highley in the course of an effective cross-examination. Mr Highley was, after all, one of those who provided funds to OKH which Mr Duckworth was accused of stealing. In the absence of evidence, it cannot be inferred that he either could or would have given evidence which would have advanced Mr Duckworth's case or diminished the prosecution case.

81 Finally under this heading, reference is made to the cross-examination of Mr Kavanagh, an ASIC investigator. Mr Duckworth's invitation to Mr Kavanagh to provide a legal interpretation of a particular clause was disallowed on the basis that Mr Kavanagh's opinion of the clause was irrelevant.[65] Next, Mr Duckworth endeavoured to put to Mr Kavanagh that, apart from a charge of failing to produce books and records, he had not been charged with any offence contrary to the provisions of the ASIC legislation. This was objected to on the ground of relevance, after which Mr Duckworth withdrew the question.[66]

82 Reference is also made to a question Mr Duckworth asked Mr Kavanagh, after referring him to an endorsement on a cheque in favour of Ocean Farms Trust, in the following terms:[67]

Wouldn't you say if I was into pinching money, I would have pinched that one as well?

83 When the trial judge disallowed the obviously improper question, it was withdrawn by Mr Duckworth.[68]

84 Reference is also made to Mr Duckworth's withdrawal of a question which did not make it clear to Mr Kavanagh whether he was being asked to compare two different examples of handwriting.[69] Reference is also made to the disallowance of Mr Duckworth's question to Mr Kavanagh in the following terms:[70]

Did it ever cross your mind that if I wanted to make $3 million I would simply have just sold the property?

85 As with the previous matters upon which reliance was placed, it might be accepted that Mr Duckworth's cross-examination revealed a conspicuous lack of appreciation of the law of evidence and legal procedure. That is hardly surprising, given Mr Duckworth's lack of legal training. However, that is not the point. As with the other matters upon which reliance is placed, there is nothing in the submissions advanced on behalf of Mr Duckworth, or the evidence before this court, which would suggest that there was any fruitful line of cross-examination which was not pursued with Mr Kavanagh, or that he either could or would have given any evidence which would have either assisted Mr Duckworth's case or diminished the prosecution case.

Summary in relation to 'no knowledge of the rules of evidence'

86 It may be accepted that the various matters grouped under the heading 'no knowledge of the rules of evidence' in the submissions advanced on behalf of Mr Duckworth establish that proposition. However, for the reasons I have already given, that proposition falls manifestly short of sustaining the conclusion that there has been a miscarriage of justice. None of the matters upon which reliance is placed under this heading, either singly or in combination, provide any support for the latter proposition.

87 The substance of the submission advanced on behalf of Mr Duckworth under this heading is to the effect that there was evidence capable of strengthening the defence of an honest claim of right which was not properly marshalled or materialised by Mr Duckworth, because of his incompetence. The fundamental difficulty with the submissions advanced under this heading is that they rely upon evidence which was in fact adduced at trial. No relevant evidence which was not adduced at trial has been identified. The evaluation of the evidence adduced at trial was of course a matter for the jury.

88 The evidence said to be capable of strengthening an honest claim of right includes the statements made by Mr Duckworth in the course of his examination by ASIC. However, that evidence was presented to the jury and the trial judge directed the jury with respect to the significance of that evidence in the context of the honest claim of right.[71]

89 Reference is also made to Mr Duckworth's assertion, in the course of his closing address, that he was entitled to at least 50% of the Quantum Credit loan funds because they had been jointly borrowed by Riverfront and his further assertion that OKH owed him $788,000, with the result that he was entitled to $1,033,000, when he had only been accused of stealing $833,000.[72]

90 The fact that the funds were jointly borrowed by OKH and Riverfront was not contentious - it was established by the prosecution case. The significance of that fact to the issue of honest claim of right was a matter for the jury, and Mr Duckworth drew the attention of the jury to it in his closing address.

91 Similarly, there was evidence that Mr Duckworth had advanced $788,001 to OKH in the notes to the accounts of OKH for the period ending 17 March 2006. Mr Duckworth drew that evidence to the attention of the jury in his closing submissions. The weight to be given to that evidence, and its significance to the issue of honest claim of right, were matters for the jury.

92 Reference is also made to evidence to the effect that from time to time Mr Duckworth used funds held by one company under his control in order to pay debts due from other companies under his control.[73] However, that evidence is at least as consistent with a propensity to use the property of a company without regard to the interests of that company and in the furtherance of his own interests (ie, stealing) as it is with an honest claim of right.

93 It is significant that no evidence has been adduced in support of Mr Duckworth's appeal which was not adduced at trial and which would establish that there were in fact moneys owed to him by OKH and which formed the basis for an honest appropriation by him of OKH's funds to his own use. In the absence of that evidence, it has not been established that anything done or not done by Mr Duckworth in the conduct of his defence diminished the strength of his case with respect to the issue concerning honest claim of right.

94 A number of aspects of Mr Duckworth's conduct of his own defence are grouped under the heading 'Inability to competently conduct a defence'. The first of those is Mr Duckworth's election not to give an opening address. However, it is clear that Mr Duckworth was well aware of his right to give such an address, and elected not to exercise that right. There is no reason to suppose that his decision was uninformed. Similar decisions are made by competent and experienced counsel for sound forensic reasons. Nor can it be inferred that an opening address relating to his defence would have improved his prospects of acquittal - especially given that the prosecutor anticipated and alerted the jury to the issues relating to honest claim of right.[74]

95 Reliance is also placed upon Mr Duckworth's election not to give evidence. Again, there can be no doubt that Mr Duckworth was aware of his right to give evidence in his own defence, and indeed he called three witnesses to give evidence in the defence case. Mr Duckworth advised the trial judge that he had decided not to give evidence after thinking about the matter seriously because:[75]

There's hardly any reason I should give evidence. I think the evidence is in.

96 It is reasonable to infer that this was a reference to the statements made by Mr Duckworth in the course of his examination by ASIC. It can further be inferred that Mr Duckworth's decision not to give evidence was based upon the forensic advantage of relying upon the statements he had made in the course of the ASIC examination without being subjected to cross-examination before the jury. It is, of course, commonplace for senior and experienced counsel to properly advise clients to rely upon evidence of statements made to investigators adduced as part of the prosecution case, rather than enter the witness box and be subjected to cross-examination. The fact that Mr Duckworth appears to have made a similar decision is quite incapable of sustaining the proposition that there has been a miscarriage of justice.

97 Reliance is also placed upon directions given to the jury by the trial judge to the effect that there was simply no evidence to sustain a number of submissions made by Mr Duckworth in the course of his closing address.[76] It is unnecessary to catalogue those directions because the submission suffers from the fundamental defect that there is still no evidence of any of the matters asserted by Mr Duckworth. In the absence of such evidence, it cannot be inferred that the course taken by Mr Duckworth at trial caused him any disadvantage.

98 Reliance is also placed upon the trial judge's directions to the jury correcting a number of propositions of law erroneously advanced by Mr Duckworth in the course of his closing submissions.[77] However, the correction of an erroneous proposition of law cannot be the source of forensic disadvantage, given that the trial judge expressly directed the jury that they should not take an adverse view of Mr Duckworth's case because he was incorrect in law and expressly directed the jury that it was not surprising that Mr Duckworth did not understand 'the niceties of some of these matters'. There is no reason to suppose that the jury would not have accepted and acted upon this evidently reasonable direction.

99 Detailed analysis of the various matters which are said, in combination, to sustain the conclusion that there has been such a departure from the notion of a fair trial as to place this case within the first category posited by McHugh J reveals the fundamental flaw in the approach taken in this appeal. None of those matters involves a grave departure from the presuppositions of a trial, such as the complete unexplained failure to cross-examine a prosecution witness whose evidence was critical to the prosecution case or a complete failure to give a closing address. Rather, the various matters upon which reliance is placed could only be put, at their highest, as material irregularities. However, because of the complete failure to attempt to adduce either argument or evidence to show the consequences of the various matters upon which reliance is placed, in terms of forensic disadvantage or the loss of potential forensic advantage, the very real possibility that the course taken by Mr Duckworth at trial is explained by the fact that he had no other practical alternative remains open. Further, because of the lack of any attempt to demonstrate the consequences of the matters upon which reliance was placed, in terms of forensic disadvantage or the loss of potential forensic advantage, it cannot be concluded that any of the matters, viewed singly or in combination, resulted in a miscarriage of justice.

100 Accordingly, as there is no merit in the appeal, the application for an extension of time within which to appeal, and the appeal, should be dismissed.

[1] As required by the Corporations Act 2001 (Cth) s 201A.

[3] The trial judge directed the jury that the two companies were jointly entitled to all the funds drawn down against the loan.

[14] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.

[22] Lancaster v The Queen [1989] WAR 83, 85 (Malcolm CJ).

[23] Wimbridge v The State of Western Australia [2009] WASCA 196 [45].

[25] Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338 [113] - [114] (Wheeler JA); Wimbridge [21] (Wheeler JA).

[26] TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [75] - [77].

[27] See, for example, McMahon v The State of Western Australia [2010] WASCA 143; Durani v The State of Western Australia [2012] WASCA 172; SAM v The State of Western Australia [No 2] [2016] WASCA 64.

[28] McMahon [24] - [27] (Buss JA & Mazza JA agreeing).

[30] Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 [17].

[31] Nudd [25] (Gummow & Hayne JJ); SAM [36] (Corboy J).

[32] R v Frawley (1993) 69 A Crim R 208, 212 (Shellar JA & Crothers J agreeing).

[33] Wong v The Queen [2001] WASCA 32; (2001) 159 FLR 328 [55] (Kennedy & Murray JJ agreeing).

[50] ts 864 (tendered as part of a bundle), 902 (MFI 96 made exhibit 96).