Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Unlawful assault occasioning death - Alleged miscarriage of justice due to conduct of counsel at trial - Claim that defence case at trial contrary to instructions - Scope of rule that party bound by conduct of his counsel

Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444

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

Merrey v The State of Western Australia [2010] WASCA 62

Nudd v The Queen [2006] HCA 9

Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354

1 Mr Sylvester Colley applies for an extension of time within which to appeal, leave to appeal, and leave to adduce evidence in support of his appeal against his conviction after trial of unlawfully assaulting David John Adams (the deceased) who died as a result of that assault.[1]

2 In his only ground of appeal, Mr Colley asserts that a miscarriage of justice has occurred because he did not receive a fair trial as a result of the conduct of his counsel at trial. He asserts that his counsel did not act in accordance with his instructions to the effect that he did not assault the deceased, that counsel conducted his case on the basis that the substantive issue in the case was self-defence without instructions from Mr Colley to that effect, and that counsel failed to advise him of his right to give evidence, and did not advise that he was not intending to call him to give evidence.

3 As the evidence adduced at the hearing of the appeal fails to establish any of these assertions, leave to appeal should be refused and the appeal dismissed.

4 In reasons which I have had the advantage of reading, McLure P has set out the sequence of events relating to the investigation and trial of Mr Colley in terms which I gratefully adopt.

Mr Colley's evidence on appeal Leave to adduce evidence on appeal

5 By its very nature, Mr Colley's ground of appeal could only be made out by the tender of evidence with respect to the dealings between him and his trial counsel. That evidence was led on the basis that the question of the grant of leave to adduce such evidence would be reserved. As the evidence adduced is central to the issues in the appeal, I would grant leave.

6 Written submissions filed in support of Mr Colley's various applications raised questions with respect to his capacity to understand English. However, no interpreter was provided for Mr Colley during his trial, and there is no ground of appeal to the effect that his trial was unfair because of the absence of an interpreter, and accordingly, no issue arises in this case as to the precise circumstances in which an accused person who is not entirely fluent in the English language must be provided with an interpreter in order to ensure the fairness of the trial process.[2] Although an interpreter was present in court during Mr Colley's evidence in this appeal, and provided him with occasional assistance, his counsel on appeal confirmed that there was no issue with respect to his capacity to understand English, and the interpreter was provided out of an abundance of caution.[3]

7 McLure P has set out the evidence given by Mr Colley during the appeal in terms which I gratefully adopt and would augment with reference to the following specific passages in that evidence.

8 During cross-examination Mr Colley accepted that when the three young female witnesses gave their pre-recorded evidence he was situated quite close to his counsel, although not quite close enough to touch him. He accepted that he would have had no difficulty speaking to counsel. In that context, the following interchange took place:

WHALLEY, MR: ... do you remember him [trial counsel] saying to the girls that you punched the dead man but the dead man hit you first. Do you remember him saying things like that?

[MR COLLEY:] Yes.

WHALLEY, MR: Okay. And you didn't sing out to him and ask to talk to him and say, 'That's wrong,' did you?

[MR COLLEY:] No.

WHALLEY, MR: And when there was a break in court, like, when the court or the judge went away, you didn't sing out to him and ask to say anything about that, did you?

[MR COLLEY:] No.[4]

9 During cross-examination, Mr Colley also accepted that during the trial he was sufficiently close to his trial counsel to speak to him if he needed to. In that context the following exchange took place:

WHALLEY, MR: ... at the beginning of the trial, Mr Dobson gave a little speech to the jury. Do you remember him doing that?

[MR COLLEY:] Yes.

WHALLEY, MR: And he told the jury that this is all about self-defence. Do you remember that?

[MR COLLEY:] Yes.

WHALLEY, MR: And in the break on that day when you heard Mr Dobson's speech, you didn't say to him, 'That's wrong?'

[MR COLLEY:] No.

WHALLEY, MR: Okay. Or at the end of the day, you didn't say, 'Mr Dobson, that's wrong?'

[MR COLLEY:] No.

WHALLEY, MR: But you agree, don't you, you could have done, if you had wanted to? Do you agree with that?

[MR COLLEY:] Yes.[5]

10 In the same context, Mr Colley confirmed that he heard his counsel tell the judge that he would not be giving evidence on a number of occasions during the course of the trial, but on no occasion did he correct him or state to the court that he wanted to give evidence. Further, McLure P has extracted in her reasons the portion of Mr Colley's cross-examination in which he confirmed that he knew that he could give evidence if he wanted to.[6]

11 McLure P has set out the evidence given during the appeal by Mr Colley's trial counsel in terms which I gratefully adopt.

Disposition Mr Colley's acquiescence in the course taken by his counsel

12 The evidence given by Mr Colley to which I have referred establishes that he clearly understood and acquiesced in the course taken by his counsel at trial, and did not take any of the many opportunities available to him to correct counsel or to draw the discrepancy between what he asserts were his instructions to counsel, and counsel's conduct, to the attention of the court, nor did he terminate counsel's services. During the pre-recording of the evidence of the young female witnesses, he took no objection to his counsel putting to those witnesses that he had punched the deceased. He took no objection to his counsel opening the case on the basis that the substantive issue to be resolved was that of self-defence. He took no objection to his counsel telling the court, on a number of occasions, that he would not be giving evidence, nor did he object at any time to his counsel closing the case on the basis that the substantive issue to be resolved by the jury was that of self-defence.

13 Mr Colley's evidence compels the conclusion that he knowingly acquiesced in a forensic strategy which failed to secure his acquittal, and now seeks to appeal on the basis that the strategy in which he knowingly acquiesced was contrary to his instructions to counsel. In my view there is a cogent argument to the effect that Mr Colley's continued acquiescence in the strategy adopted by his counsel precludes him from now asserting that there was a miscarriage of justice because that strategy was contrary to his instructions. However, it is unnecessary to resolve that question in this case because Mr Colley has failed to establish that counsel's conduct was contrary to instructions.

14 Mr Colley's continuing acquiescence in the conduct of his counsel is entirely inconsistent with his evidence as to the instructions which he gave to counsel and substantially undermines the credibility of that evidence. By contrast, Mr Dobson's evidence is entirely consistent with the course which he took on Mr Colley's behalf at trial and is not inconsistent with any of the regrettably limited contemporaneous notes which he took during the course of his instructions. As Mr Dobson now accepts, appropriate standards of professional conduct required him to take a clear record of Mr Colley's instructions as to the facts, and it would have been highly desirable for him to have secured written instructions from Mr Colley to the effect that Mr Colley elected not to give evidence. However, these departures from appropriate standards of professional practice do not sustain an inference to the effect that Mr Colley instructed

him not to put self-defence in issue or that Mr Colley was to give evidence, especially when Mr Colley accepts that he knew and understood the manner in which Mr Dobson was conducting the trial on his behalf and took no objection. I have no hesitation in accepting Mr Dobson's evidence in preference to that given by Mr Colley in relation to the issues upon which their evidence diverges.

15 It follows from the rejection of Mr Colley's evidence with respect to his instructions to Mr Dobson that the factual basis for his sole ground of appeal has not been made out. It also follows that there is no occasion in this case to address the question of whether it could ever be appropriate for counsel to put in cross-examination a version of the facts which is inconsistent with his or her instructions (which I doubt), as that did not occur in this case.

16 The application for an extension of time within which to appeal should be granted, as the extension sought is relatively short and the delay has been explained. Leave to adduce new evidence should be granted but as that evidence fails to establish the factual premises upon which the ground of appeal is based, leave to appeal should be refused and the appeal dismissed.

17 McLURE P: The appellant applies for an extension of time, leave to appeal and to adduce evidence in this appeal against conviction. The applications were referred to the hearing of the appeal.

18 On 19 November 2013 the appellant was convicted after trial on one count that on 16 November 2012 at Newman he unlawfully assaulted David John Adams (the deceased), which assault resulted in the death of the deceased, contrary to s 281(1) of the Criminal Code (WA) (the Code).

19 The sole ground of appeal is in the following terms:

The conduct of the appellant's counsel at trial was such that he did not receive a fair trial and a miscarriage of justice has occurred.

Particulars

1. The appellant's counsel did not follow the appellant's instructions that he did not assault the deceased.
2. The appellant's counsel chose to run the case on the basis of self-defence without instructions to that effect.

1. The appellant's counsel did not advise him that he had a right to give evidence at his trial and did not advise him that he was not intending to call him to give evidence.

20 The deceased died in Newman in the early hours of the morning of 17 November 2012. The prosecution case, in short, was that the appellant approached the deceased and punched him, without provocation, causing the deceased to fall to the ground and die. The prosecution case depended on the evidence of three children, X, Y and Z. All gave evidence that they witnessed the appellant punch the deceased.

21 The evidence of the three child witnesses was pre-recorded before Braddock DCJ in Perth on 29 and 30 July 2013 and played at trial (ts 156, 162, 166). At the time of the pre-recording X was aged 10, Y was aged 13 and Z was aged 15. The appellant's trial was held between 11 and 19 November 2013 before Scott DCJ and a jury at South Hedland. The appellant was represented at the pre-recording and the trial by Mr Terry Dobson.

22 In opening the case for the defence at trial (ts 106 - 108), the appellant's counsel admitted that the appellant had assaulted the deceased but said he had acted in self-defence. Causation was also said to be a live issue. At the pre-recording in July 2013 the child witnesses were cross-examined in accordance with the defence case theory. The trial proceeded on the basis that there was no dispute that the appellant had assaulted the deceased.

23 The appellant did not give evidence in his own defence and called no other evidence at trial. At the time of his trial, the appellant was aged 25. He is an aboriginal man of the Martu people. At the time of the offence, the appellant lived in Jigalong, a dry community, and was visiting Newman for the purpose of obtaining alcohol (appeal ts 19).

24 The appellant was not unfamiliar with the criminal justice system. Between 2006 and 2011 he had pleaded guilty to a number of offences including two counts of unlawful assault in circumstances of aggravation and one count of causing grievous bodily harm in a circumstance of aggravation.

25 In order to determine the merit of the ground, the appellant required leave to adduce evidence. Leave for that limited purpose was given at the appeal hearing.

26 The appellant gave viva voce evidence in the appeal. The respondent called the appellant's trial counsel, Mr Dobson. The respondent also relied on unchallenged affidavits of David Thiering sworn on 14 August 2014, the prosecutor at the appellant's trial, and Fergus MacKinnon sworn on 12 August 2014, the lead investigating police officer into the deceased's death.

27 This appeal is based on alleged misconduct of Mr Dobson, who performed the combined roles of solicitor and counsel.

28 The law on this subject is summarised in McMahon v The State of Western Australia [2010] WASCA 143 as follows:

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) [24] - [27]. (emphasis added)

29 The appellant's claims in this case fall within the 'process' category. That is, the appellant claims he was deprived of a fair trial according to law.

30 As is clear from the use of the word 'ordinarily' in the first paragraph of the extract, it is a general rule that an accused is bound by the way a trial is conducted by counsel. In particular, not all decisions made by counsel contrary to instructions will bind the accused. The point is made clearly by Gleeson CJ in Nudd v The Queen [2006] HCA 9:

A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions [9]. (emphasis added)

31 For example if, as the appellant says in this case, he instructed trial counsel not to defend the charge on the basis of self-defence because he (the appellant) did not at any stage hit the deceased, to do so would be outside the scope of any implied power in the retainer to make decisions on behalf of the appellant.

32 Moreover, it is outside the scope of any implied retainer for trial counsel to conduct a positive defence that is inconsistent with the accused's instructions as to what had actually occurred. A 'positive defence' includes cross-examination of witnesses for the prosecution suggesting, expressly or impliedly, that counsel is putting his or her client's instructions as to relevant factual matters.

33 It is unnecessary to determine whether trial counsel may, with the client's consent, put in cross-examination a positive defence that is inconsistent with his or her client's instructions as to what actually occurred. Even if permissible, the client would have to be informed by trial counsel that he or she could not lead evidence from the accused that was inconsistent with his or her instructions as to what actually occurred. That is, prior to the cross-examination the client would have to elect not to give evidence at trial. In that way there would be no breach of the first aspect of the rule in Browne v Dunn (Browne v Dunn (1893) 6 R 67 HL). As to which, see Merrey v The State of Western Australia [2010] WASCA 62 [12].

34 Contrary to the written submissions in the respondent's case, the respondent's position at the hearing of the appeal was that if this court accepted the appellant's evidence as to his instructions, there would have been a serious breach of the presuppositions of a trial giving rise to a substantial miscarriage of justice.

35 The respondent's concession is correctly made. However, for the reasons that follow I am satisfied that the positive defence case conducted by Mr Dobson on behalf of the appellant was not contrary to the appellant's instructions.

36 At 8.10 am on 17 November 2012, the appellant signed a witness statement prepared by police from information provided by the appellant (exhibit 1 in the appeal). The appellant's statement is to the effect that the previous night he had walked past a phone box and crossed a road where there was a footpath and saw somebody lying on the footpath on the bush side. He thought this person was a woman but did not take a close look. He thought the person was asleep so he just walked down a dirt track to his sister Roslyn Simpson's house where he went to sleep. The appellant was not sure what time he saw the person lying on the footpath because he was too drunk.

37 At 12.40 pm on 17 November 2012 Y signed a witness statement to the effect that the appellant hit the deceased twice to the right side of his face and the deceased fell to the ground.

38 At 1.00 pm on 17 November 2012 Z signed a witness statement saying she saw an aboriginal man walk up to the deceased and punch him in the face; the deceased punched the aboriginal man back; and the aboriginal man punched the deceased twice more and knocked him out.

39 At 1.50 pm on 17 November 2012 X participated in a video recorded interview with police. X said the deceased punched the appellant before the appellant punched the deceased really hard in the temple.

40 Y's evidence was pre-recorded on 29 July 2013. In her evidence-in-chief there was no support for the defence of self-defence. She was cross-examined as follows:

Now, from the time Rainbow [the appellant] asked for the smoke to the time when you say [the appellant] punched the white man, I'm going to say to you that something else happened in - between and that is [the appellant] asked for the cigarette, the white man said he didn't have a cigarette and then he swung his arm at [the appellant], that's correct isn't it, that's - - - ?---Yeah.

He swung his arm towards [the appellant's] head?---

But that didn't connect, did it?---Yeah.

It went close to [the appellant's] head?---Yeah.

Now, did you see - did the white - did the white man, when he swung his arm, did he have his hand made into a fist like when you punch someone or was it - - - ?---Yeah.

Or was it an open hand?---Fist.

He swung a fist at [the appellant's] head?---Yeah.

And then [the appellant] punched him?---Yeah.

Punched him twice do you say?---Yeah (ts 24 - 25).

41 X gave evidence in the morning of 30 July 2013. She confirmed the truth of the contents of her video record of interview. X was cross-examined as follows:

Now, [the appellant] walked up to the white man. That's true isn't it?---Yes.

And I am saying to you that [the appellant] asked the white man for a cigarette. Did that happen?---Nuh.

And there was some swearing between [the appellant] and the white man. Did you hear that?---No.

And the white man punched [the appellant]. Did you see that happen?---Yes.

He punched - he punched [the appellant] first?---No. Yes.

All right. I'll just ask you again. ... The white man, he punched [the appellant] first. Isn't that true?---Yes.

And then [the appellant] punched him back?---Yes.

And did they have a fight? Did they fight each other?---Yes.

And when I say, 'fight' I'm saying two men exchanging punches, punching each other. Did you see that?---Yep.

Was there - - - ? Yeah - - - swearing?---No.

[X], are you sure - are you sure that you didn't hear any swearing?---No, never (ts 48 - 49).

42 Z gave evidence in the afternoon of 30 July 2013. She said that the aboriginal man hit the white man with his fist which caused the white man to hit the aboriginal man who then got angry and started hitting the white man. The cross-examination included the following:

When you say that ... [the appellant] hit the white man first?---Yes.

Let me say to you, that's wrong. You're wrong. The white man hit the - hit [the appellant] first. What do you say to that?---But how when [the appellant] hit him first?

I'm just saying - am I right or wrong?---You're wrong.

...

All right. So you say that [the appellant] hit the man. We disagree - - -?---Yes.

- - - but we'll move on. The man didn't fall over with that first punch, did he?---No (ts 74 - 75).

43 All three child witnesses admitted robbing the deceased after he had been felled. The appellant was present at all times during the pre-recording of the evidence of the child witnesses.

44 On Monday 11 November 2013 the appellant appeared at a call-over at the South Hedland District Court. Mr Dobson arranged for a lawyer from the South Hedland office of the Legal Aid Commission to appear for the appellant at the call-over and the jury empanelment on that day. The jury was then excused until the following day. After the prosecution opening on 12 November 2013, Mr Dobson opened for the defence. Mr Dobson said, inter alia:

There's no smoke and mirrors for this defence, none at all. We're upfront right from this opening address. This is all about self-defence and causation. And again you might think, 'well, hang on. A man has lost his life,' but the people who make the law in this State allow for self-defence to be applied in this situation ... His Honour will speak to you about the law of self-defence and then you simply have to apply it to the facts. So I just ask you to keep in mind self-defence and causation.

As to self-defence, it's likely ... you will hear some evidence that the [appellant] approached three girls and that he wanted a cigarette, didn't get one, and then the [appellant] approached the deceased. And you may not hear direct evidence, but I would say to you that you can draw an inference that he went to the deceased man and asked for a cigarette because he didn't get one from the girls. Wanted a cigarette, didn't get one, approached another person (ts 107).

45 Later in his opening Mr Dobson refers to the evidence of the three child witnesses, saying:

Two of the girls are consistent with each other: that [the deceased] was the first person to throw a blow, to strike. One girl says she saw [the deceased] actually deliver the first punch. One girl says she saw a hand movement or arm movement, didn't see it land, but it was [the deceased] who moved first. The other girl says it was [the appellant]. In any event, there was an exchange between the two. What's vital, from the defence point of view, is that, we say [the appellant's] assault wasn't unlawful because he acted in self-defence (ts 108).

46 On 14 November 2013, in the absence of the jury, the trial judge inquired whether, after the close of the State's case, Mr Dobson would be in a position to tell him of the appellant's election or whether that was a matter which he would want to stand over until Monday morning. Mr Dobson said:

I can tell you now, your Honour. He won't be giving evidence and there will be no other witnesses called to his defence (ts 260).

47 At the close of the State's case on 15 November 2013 the trial judge told Mr Dobson that he did not hold him to the indication he gave the previous day and asked about the appellant's election. Mr Dobson said:

I've thought about it further overnight, your Honour, and I may wish to take further instructions. Given the timing, perhaps this could be adjourned. It has been difficult, of course, to see him because of his travel arrangements. This might give me a little bit more time (ts 280).

48 The trial adjourned at 10.29 am on 15 November 2013 to allow sufficient time for Mr Dobson to speak with the appellant with the notification of the election to be made on Monday morning.

49 At 10.08 am on Monday 18 November 2013 Mr Dobson advised the court that the appellant would not give evidence in his own defence and would not call any other evidence (ts 286).

50 By the time of the hearing of the appeal there was no issue concerning the appellant's capacity to understand and communicate in English (ts 7 - 8). However, English is not his first language and an interpreter was present at the hearing out of an abundance of caution.

51 The appellant's evidence-in-chief in the appeal is as follows. He saw a white person lying on the ground across the road from the bus stop where three young girls were sitting and sniffing petrol. This was around midnight. He was not drunk when he saw the deceased. X and Y are his relatives. He spoke to the girls and asked them for a smoke. They gave him one. He then went across the road and saw the white person lying on the ground. He thought it was a woman who was asleep and he just kept going. The appellant walked to and stayed the night at Peter Tinkler's house. In the morning he went to Derek Jackson's camp where Clive Sampson arrived and said that somebody had passed away. The appellant then walked to the area where the deceased was and spoke to a police officer. He then accompanied another police officer to the police station where he made the witness statement. Later in the day he was arrested. He had a Legal Aid lawyer and declined to participate in a video record of interview.

52 After his arrest he was taken to Casuarina prison in Perth where he stayed until his trial in South Hedland in November 2013. During his trial the appellant was in custody in Roebourne.

53 The appellant said he saw Mr Dobson around four or five times in Casuarina and that Mr Dobson had talked to him about self-defence.

54 The appellant was asked whether Mr Dobson told him that he should say he was acting in self-defence. The appellant said:

Terry was telling me that - saying, what do you eat outside? What's your favourite tucker when you're outside? Do you want to go home? We will go with self-defence, then. I said no (ts 32).

55 The substance of the appellant's evidence was that Mr Dobson advised him that he should go with self-defence and he told Mr Dobson no, that he did not agree with that.

56 However, the appellant admitted that at no stage during or after the pre-recording, of evidence or during or after his trial, did he tell Mr Dobson that he was not happy with his conduct of the appellant's defence.

57 The appellant said in examination-in-chief that Mr Dobson did not talk to him about giving evidence and did not tell him that he could give evidence if he wanted to (ts 38). He confirmed that he did want to give evidence and tell the truth. When asked why he did not speak up and say anything to Mr Dobson when Mr Dobson told the judge that he (the appellant) was not going to give evidence, the appellant said 'because I didn't understand what he said' (ts 39). The appellant said he did not see Mr Dobson before court on Monday 18 November 2013.

58 The appellant's evidence in cross-examination is as follows. He admitted that at the pre-recording of the evidence of the child witnesses he could hear the questions asked of the girls and their responses and understood what was going on (ts 43 - 44). He was not afraid of Mr Dobson and was happy to tell him if he was wrong (ts 46). He could also see and hear the witnesses and the lawyers at his trial. He recalled the defence opening and confirmed that he did not at any time tell Mr Dobson that what he said was wrong.

59 The appellant denied telling Mr Dobson that what the girls said was true (ts 48). The appellant said he got angry when Mr Dobson said 'Well, we will have to go with self-defence if you want to go home' and told Mr Dobson that he could not make him (the appellant) say it was self-defence because he did not 'touch that man' (ts 48, 49).

60 The appellant heard Mr Dobson tell the judge halfway through the trial that the appellant would not be giving evidence and knew what 'giving evidence' meant (ts 50). The cross-examination continued:

WHALLEY, MR: So when [Mr Dobson] came to see you in Casuarina, you talked about you giving evidence?

THE WITNESS: Yes.

WHALLEY, MR: Okay. So you knew that you could give evidence if you wanted to?

THE WITNESS: Yes.

WHALLEY, MR: You knew that, in a trial, you were allowed to tell your story? Is that correct?

THE WITNESS: With a lawyer, yes (ts 53).

61 The appellant also remembered Mr Dobson telling him that the prosecutor would give him a hard time or challenge what he had said in his witness statement but he said he still wanted to tell his story (ts 54). He denied telling Mr Dobson that he did not want to give evidence; to the contrary he wanted to give evidence and was ready and waiting to do so (ts 55).

62 The appellant heard Mr Dobson tell the judge that he was not going to give evidence but did not say anything to Mr Dobson because he did not understand (ts 55).

63 The appellant admitted that earlier in the night of 16 November 2012 he had punched Vernon Lubin (one of a number of Martu people with whom the appellant was drinking) in the face (ts 58). He also confirmed that he got on well with his relatives, X and Y, and did not have any arguments with them (ts 59).

64 The appellant did not know that anyone was blaming him for the death of the deceased when he made his witness statement. In that statement he did not mention the presence of the three girls because he thought they would blame him (ts 63) and because he did not want them to go to prison (ts 64).

65 A police officer guarding the scene where the deceased was found was spoken to by the appellant at 7.50 am on 17 November 2012 (that is, before the appellant was taken to the police station to make a statement). The police officer gave evidence at trial that it appeared the appellant had been crying and he said to the officer that his heart was hurting him and it was paining him and then he continued to cry a bit more and repeated that it was paining him (ts 249). The appellant denied that evidence but admitted saying words to that effect after his grandmother Heather Sampson told him that the three girls were blaming him for what had happened (ts 67).

66 The evidence-in-chief of Mr Dobson is contained in an affidavit sworn on 19 August 2014, with limited supplementation at the hearing of the appeal. In particular, at the hearing Mr Dobson identified documents comprising the entire written record relating to his preparation for and conduct of the appellant's trial (ts 72 - 73). They are a few sheets of handwritten notes. There was no signed proof of evidence of the appellant, no contemporaneous notes relating to the matters in issue in the appeal and no written instructions from the appellant concerning his election not to give evidence at trial. Such omissions are to be deplored. However, this is not a professional conduct hearing. This court's role is to make findings of fact on the matters in dispute in the appeal.

67 I start with the unchallenged evidence. In the 1980s and 1990s Mr Dobson was a police officer stationed variously at Derby, Fitzroy Crossing, South Hedland and Halls Creek in the Northwest of the State. In that capacity, he had extensive interactions with aboriginal people of all ages and learnt to take great care in communicating with complainants, witnesses and persons accused of criminal offences. He also had significant sporting and social interactions with aboriginal people.

68 Mr Dobson visited the appellant in Casuarina prison on three occasions. The first visit was on 10 December 2012, the second on 15 July 2013 and the third on 24 July 2013. During the first visit Mr Dobson ensured the appellant understood English and gave him the opportunity to tell him of his recollection of the events surrounding the offence with which the appellant was charged. What the appellant told him was consistent with, but a more detailed version of, his witness statement. Mr Dobson made a considered decision not to challenge any of the details or circumstances communicated by the appellant because he wanted further information.

69 After the first visit, there were numerous court appearances and the original charge of murder was downgraded first to manslaughter and then to the charge of assault directly or indirectly resulting in the death of another. Mr Dobson also arranged for the appellant to view X's video record of interview with police.

70 I turn now to Mr Dobson's oral evidence at the hearing of the appeal. Mr Dobson did not have any difficulty making himself understood by the appellant and he had no difficulty in understanding what the appellant said to him (ts 72). An interpreter was not required.

71 Mr Dobson went through the evidence of the three young girls with the appellant in detail on two occasions (ts 75). Mr Dobson did not know of the girls' witness statements at the first visit (ts 77).

72 In the second visit, Mr Dobson went through the girls' evidence with the appellant and explained that it was a real problem for him because each said it was the appellant who punched the white man and the fact that each version was slightly different indicated that the girls had not concocted their story. They had also admitted robbing the white man after he was punched to the ground, which added to their credibility and reliability.

73 Mr Dobson's unchallenged evidence in his affidavit is that at the second visit he advised the appellant that if he (the appellant) accepted what the girls said about him, then self-defence and the cause of death would be his defences; if he (the appellant) did not accept what was said by the girls then he (Mr Dobson) would have to cross-examine them at their pre-recording hearing then ultimately say to them that they were wrong by either being mistaken or because they were liars; the appellant needed to let him know whether they were liars and the appellant told him that he (Mr Dobson) could not say that to the girls and he could not say the girls were mistaken (pars 92, 94). The affidavit continues:

I then confirmed with him that his instructions were that what the girls said was true but that he had been very drunk that night [95].

74 In cross-examination Mr Dobson said that at the second visit the appellant's instructions that he hit the deceased were implicit rather than express but that at the third visit the appellant explicitly said and agreed that he hit the deceased (ts 78, 80). Mr Dobson expressly rejected a suggestion that he had sown the seed of self-defence first before the appellant said he hit the deceased (ts 78, 79).

75 In his affidavit Mr Dobson said that at the third visit he focused on explaining the pre-recording hearing; went through each of the girls' version of events, comparing the differences and noting the similarities; read portions of other statements to the appellant; and showed him photographs of the scene, his football jumper he was wearing on the night and the deceased. Mr Dobson continued:

1. The appellant agreed with what was said about him by the girls but vehemently denied that the white man had sworn at him ... or that there had been any swearing.
2. I spoke in detail to the appellant about my intended cross-examination of the girls and he confirmed that I was not to challenge their version; I also again confirmed ... that he had seen [X's] recording.

1. Prior to finishing the third visit I confirmed with the appellant that I was to run the defence of self-defence and raise the cause of death (or lack of) as a defence as well because the girls had interfered with the deceased's body after he was punched to the ground.
2. I made clear to the appellant that running self-defence meant that we were saying the appellant punched the white man but only because the white man punched him ... first.

76 On the subject of the appellant's election, Mr Dobson's evidence was that he told the appellant that he did not have to give evidence at his trial because he had a right to remain silent and the prosecution had to prove the charge against him; he (the appellant) would make the decision about giving evidence after Mr Dobson had advised him; and the decision about whether or not the appellant gave evidence could be made early or more preferably left to near the end of the prosecution's case (par 97).

77 Mr Dobson was not able to say with any certainty whether he spoke to the appellant about his election after the court adjourned on Friday 15 November 2013. However, he received final instructions from the appellant that he did not want to give evidence before court on Monday 18 November 2013 (ts 81). The appellant was always very reluctant at the prospect of being cross-examined (ts 81). Mr Dobson said that the appellant made the decision, he did not make it for the appellant (ts 82).

78 Mr Dobson said he spoke to the appellant at every break to ensure he understood what was happening and why it was happening (ts 84). At no stage did the appellant express any concern or difficulty with the way Mr Dobson conducted the trial (ts 84). This evidence is supported by the evidence of the prosecutor at the appellant's trial, Mr Thiering.

79 The appellant submits that in the absence of any contemporaneous written record by Mr Dobson of his communications with the appellant before and during the trial relating to his defence and his failure to give evidence, this court should reject Mr Dobson's evidence on the basis that he was either mistaken or lying.

80 Having regard to the very narrow compass of matters in issue at the trial, there is no scope for any real possibility that Mr Dobson was mistaken. It is his honesty that is in issue in this appeal.

81 As discussed earlier, Mr Dobson's conduct of the appellant's defence of self-defence at the pre-recording and the trial would give rise to a substantial miscarriage of justice if the appellant's evidence on the subject is accepted. The appellant's evidence is that he instructed trial counsel not to run self-defence because it was inconsistent with what had actually occurred, which was that when the appellant arrived at the scene the deceased was lying face down on the footpath and that at no time did he hit the deceased.

82 However, the appellant's evidence relating to his instructions to Mr Dobson about his defence is inconsistent with his conduct from the time of the pre-recording in July 2013 until his conviction at trial on 19 November 2013.

83 Mr Dobson's cross-examination of the three child witnesses in July 2013 was not on arcane or technical legal issues but rather on the facts and circumstances of what actually occurred on the night the deceased died. It would have been clear to anyone listening to Mr Dobson's questions, including the appellant, that the appellant's defence was that the deceased hit the appellant first and then the appellant hit the deceased. The appellant heard the questions and answers and said nothing at any time to Mr Dobson, whether by way of clarification or contradiction. The appellant maintained his silence on the subject in the more than three months that elapsed before the commencement of his trial.

84 Mr Dobson's opening at the start of the appellant's trial in November 2013 also left no room for doubt as to the factual basis for, and the nature of, the defence. The same is true of Mr Dobson's closing address and the trial judge's summing up.

85 The appellant's conduct in acquiescing in his counsel's conduct of the defence until after his conviction undermines the credibility of his evidence that he instructed Mr Dobson not to run a defence case based on self-defence because he had not at any time hit the deceased. Moreover, the appellant's admissions relating to his failure to give evidence (discussed below) have the same effect. I reject his evidence relating to the defence of the charge.

86 The mere absence of documentary records falls a long way short of supporting an inference that Mr Dobson lied on oath. Sloppy record keeping is a not uncommon phenomenon. Further, the appellant's conduct is consistent with Mr Dobson's evidence of his communications with the appellant relating to the defence of the charge. It was not put to Mr Dobson in cross-examination that he, with the appellant's consent, put a positive defence case in cross-examination that was inconsistent with the appellant's instructions as to what had actually occurred. I accept Mr Dobson's evidence relating to the defence of the charge.

87 Accordingly, in relation to the conduct of the defence case, the appellant has not been deprived of a fair trial according to law and there is

no basis for any claim of a material irregularity giving rise to any miscarriage of justice.

88 Further, there is no evidentiary foundation in the appellant's evidence in the appeal for a claim that the appellant was deprived of a fair trial according to law in connection with his failure to give evidence. He admitted in cross-examination that he knew he could give evidence if he wanted to and that Mr Dobson had advised him of the disadvantages of doing so. The appellant also admitted that he did not at any time before his conviction protest to Mr Dobson or anyone else when Mr Dobson advised the court on two separate occasions on 14 and 18 November 2013 that the appellant would not be giving evidence.

89 Mr Dobson's evidence concerning the appellant's failure to give evidence at trial is consistent with the appellant's admissions and with the objective probabilities. Mr Dobson sought an adjournment on 15 November 2013 to give further consideration to and, if necessary, seek further instructions from the appellant on that very matter. I prefer the evidence of Mr Dobson that he obtained the appellant's instructions before court on the morning of 18 November 2013 and acted upon those instructions.

90 On the appellant's failure to give evidence at his trial, the evidence establishes that the appellant was not deprived of a fair trial according to law and that there was no material irregularity in the trial.

91 I would grant an extension of time which is both short and adequately explained. However, I would refuse leave to adduce new evidence in the appeal against conviction and refuse leave to appeal. Accordingly, the appeal must be taken to be dismissed.

92 MAZZA JA: I have had the considerable advantage of reading the reasons of Martin CJ and McLure P.

(b) leave to appeal against conviction should be refused; and

94 I agree with McLure P that the application to adduce evidence in the appeal should be refused.

95 My reasons for the making of these orders essentially accord with those of McLure P. However, I wish to make one brief observation.

96 For myself, I have considerable doubt whether trial counsel may ethically, even with the client's consent, put in cross-examination a positive defence that is inconsistent with the client's instructions as to what actually occurred. However, I do not draw any positive conclusion on this matter because it is unnecessary to decide it in the context of this appeal and counsel did not make submissions on the point.

[1] Contrary to s 281 of the Criminal Code (WA) (the Code).

[2] See, eg, Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444, 454; Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354, 389 - 390.