Hanna v R

Court of Criminal Appeal (NSW)|2021-09-29|Before: Johnson J, Fullerton J, Dhanji J

Judgment

JOHNSON J: By Notice of Appeal filed on 31 August 2020, the Applicant, Joseph Hanna, seeks leave to appeal against his conviction at the Sydney District Court on 13 December 2016 for an offence of indecent assault under s.61L Crimes Act 1900 committed on 16 December 2014.
Following a Judge-alone trial, the Applicant was found guilty of this offence by his Honour Judge Berman SC.
The Applicant also stood trial in November 2016 before her Honour Judge Girdham SC and a jury and was convicted of eight other counts of indecent assault under s.61L Crimes Act 1900. With the agreement of the parties, her Honour Judge Girdham SC sentenced the Applicant for all offences, including the offence for which he had been found guilty by his Honour Judge Berman SC at the Judge-alone trial.
On 3 November 2017, the Applicant was sentenced to an aggregate term of imprisonment for four years and nine months commencing on 25 November 2014, comprising a non-parole period of three years and four months expiring on 24 March 2018 and a balance of term of one year and eight months expiring on 24 August 2019.
As part of the aggregate sentencing process, her Honour Judge Girdham SC indicated a sentence of 12 months' imprisonment for the s.61L offence, for which the Applicant had been found guilty by his Honour Judge Berman SC.

Ground of Appeal

The Applicant relies upon the following ground of appeal: 1. Ground 1- the trial miscarried due to the incompetence of the Applicant's legal representatives in that: 2. not pressed; 3. the Applicant's legal representatives did not follow his instructions to cross-examine the complainant on her holding two 750 ml bottles of shampoo and conditioner respectively, and a water filter making the allegation of him hugging her at the time of the alleged offence difficult and likely impossible; 4. the Applicant's legal representatives did not follow his instructions for him to give evidence in his trial concerning the alleged offence, in circumstances where he had not participated in an interview with police and had not provided police with a witness statement; 5. the Applicant's legal representatives failed to call the Applicant to give evidence in circumstances where he had not participated in an interview with police and had not provided police with a witness statement.

Application for Extension of Time

In support of the application for an extension of time, the Applicant relies upon his affidavit of 21 August 2020. In that affidavit, the Applicant explained he had been refused legal aid for the purpose of the appeal. An appeal against that refusal was itself dismissed by the Legal Aid Review Committee.
The Applicant's Notice of Intention to Appeal expired on 18 January 2019 without him having sought a further extension. In May 2020, he retained his present solicitor who acted for him in filing the Notice of Appeal on 31 August 2020.
The Applicant has been in immigration detention since the expiration of his sentence.
Section 5(1) Criminal Appeal Act 1912 permits a convicted person to appeal against conviction. Section 10(1)(b) Criminal Appeal Act 1912 permits the Court to extend time for the bringing of an appeal which is otherwise out of time.
In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32], French CJ, Hayne, Bell and Keane JJ referred to provisions allowing extension of time to appeal against conviction and sentence: "These provisions (among others) are exceptions to finality in the trial and sentencing of offenders. The principle of finality finds expression in the prescription of the time limit within which an appeal or an application for leave to appeal may be brought. The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re-opening a concluded criminal proceeding."
Earlier in Kentwell v The Queen, their Honours said at [29] (footnotes omitted): "The review of an old conviction may raise consideration of the capacity to hold a new trial that is fair to both sides. For example, witnesses may no longer be available and exhibits may have been lost or destroyed. Re-opening a conviction for an offence of violence may occasion acute stress to the victim, including by the prospect of being required to give evidence again."
Relevant to the determination of the interests of justice on an application to extend time are the prospects of success should the extension be granted: Kentwell v The Queen at [33].
The interests of justice test to be applied on the present application for extension of time focuses attention upon the merit of the application itself, against the background of a trial which took place in December 2016 and concerned an offence alleged to have been committed on 16 December 2014.

Hearing of the Appeal in this Court

At the hearing in this Court on 29 September 2021, Mr Norrie of counsel appeared for the Applicant.
Mr Norrie read the following affidavits in the Applicant's case: 1. affidavit of the Applicant affirmed 21 August 2020 (concerning extension of time and the merits of the appeal); 2. further affidavit of the Applicant affirmed 5 March 2021; 3. further affidavit of the Applicant affirmed 26 March 2021.
The Crown relied upon the following affidavits: 1. affidavit of Heidi Heathcote, solicitor, sworn 3 March 2021 (the Applicant's trial solicitor); 2. affidavit of Michael Gleeson, barrister, sworn 2 March 2021 (the Applicant's trial counsel); 3. affidavit of Jennifer Ramsey, solicitor, sworn 27 September 2021 (annexing a voir dire exhibit).
At the hearing in this Court, the Applicant gave evidence and was cross-examined (T7-15). An Arabic interpreter was present during the hearing of the appeal, but the Applicant did not require his assistance for the purpose of giving evidence.
Each of Ms Heathcote (T16-30) and Mr Gleeson (T31-40) gave evidence and was cross-examined in this Court.

Principles to be Applied on Appeal Based Upon Alleged Incompetent Legal Representation at Trial

In Tsiakas v R [2015] NSWCCA 187, Beech-Jones J (Leeming JA and myself agreeing) said (at [42]-[44]) with respect to appeals based upon alleged incompetent representation: "42 In some circumstances the incompetence of Counsel acting for an accused person at a trial may be of such a kind that it gives rise to a miscarriage of justice justifying intervention by this Court. In such cases what needs to be considered is what ultimately did or did not occur at the trial, whether there was some material irregularity in the trial and whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd v R [2006] HCA 9, 80 ALJR 614 at [24] per Gummow and Hayne JJ; 'Nudd'; TKWJ v R [2002] HCA 46; 212 CLR 124 TKWJ at [31]-[33] per Gaudron J, at [79] and [97] per McHugh J, at [101] per Gummow J and at [103]-[108] per Hayne J; 'TKJW'). 43 The demonstration of a 'miscarriage of justice' is the third basis for setting aside a conviction referred to in s 6(1) of the Criminal Appeal Act 1912. ... 44 With both appeals against conviction and sentences, it is not sufficient to warrant intervention to simply point to some failing, even a gross failing, of the legal representative who appeared during the sentence proceedings. In conviction appeals, where incompetence to the relevant standard is demonstrated, the Court considers whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24]). ..."
In Roach v R (2019) 344 FLR 429; [2019] NSWCCA 160, the Court (Bathurst CJ, Bell P and myself) said at [154]-[159]: "154 To make good a ground of appeal based upon alleged incompetence of trial counsel, it is necessary for an applicant to establish that what did or did not occur at trial occasioned a miscarriage of justice: TKWJ v The Queen [2002] 212 CLR 127 at 149-150; [2002] HCA 46 at [79]; Ali v The Queen [2005] HCA 8 at [18]; (2005) 79 ALJR 662 at 665. 155 In Davis v R [2017] NSWCCA 257, Price J (Hoeben CJ at CL and Schmidt J agreeing) summarised the relevant principles at [59]: 'In order to establish a miscarriage of justice, the applicant must do more than 'simply point to some failing, even a gross failing, of the legal representative who appeared…': John Wayne Tsiakas v R [2015] NSWCCA 187 at [44]; Younan v R [2016] NSWCCA 248 at [96]. The applicant must demonstrate that there is a significant possibility that the acts of which she complains affected the outcome of the trial: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 ('TKWJ'); Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614.' 156 It has been said that, to the extent that it is reasonably possible, the focus of attention in determining an incompetent counsel ground should be the objective features of the trial process: Nudd v The Queen [2006] HCA 9 at [10]; (2006) 80 ALJR 614 at 619 (Gleeson CJ). The admissibility of an affidavit of trial counsel has been considered by this Court on a number of occasions with differing outcomes: Ahmu v R [2014] NSWCCA 312; Vella v R [2015] NSWCCA 148; Langelaar v R [2016] NSWCCA 143 at [73]-[80]. 157 In Alkhair v R (2016) 255 A Crim R 419; [2016] NSWCCA 4, after referring to relevant authorities, Macfarlan JA (Rothman and Bellew JJ agreeing) said at 427-428 [31]: 'I draw from these authorities the following principles relevant to the present case: (1) To the extent possible, an appellate court should determine an appeal involving complaints about a trial counsel's conduct of a case by examining the record of the trial to determine from the objective circumstances whether the accused has had a fair trial. (2) Ordinarily, an affirmative answer to this question is required where the impugned conduct is capable of being rationally explained as a step taken, or not taken, in the interests of the accused. This is so even if the accused alleges on appeal that he or she did not authorise the conduct because the nature of the adversarial system means that the client is bound by the manner in which the trial is conducted on his or her behalf. (3) Only in exceptional circumstances will an appellate court find it necessary to resort to subjective evidence concerning the appellant's legal representatives' reasoning at trial or to evidence as to communications between the appellant and those representatives. (4) The ultimate question for an appellate court is whether the appellant has established that what occurred at the trial gave rise to a miscarriage of justice in the sense that the appellant lost a chance of acquittal that was fairly open.' 158 The approach outlined in Alkhair v R has been applied recently by Payne JA (Wilson and Ierace JJ agreeing) in Moustafa v R [2019] NSWCCA 89 at [40]-[58]. 159 In the present case, it was pertinent that strong allegations were made against trial counsel on a range of topics so that it was reasonable to allow counsel an opportunity to respond to those allegations. These constituted exceptional circumstances where reference to trial counsel's evidence was necessary and appropriate."
In this appeal, the Crown read, without objection, the affidavits of the Applicant's trial counsel (Mr Gleeson) and trial solicitor (Ms Heathcote). It was appropriate to receive these affidavits, upon which each deponent was cross-examined, given the allegations made by the Applicant concerning the conduct of the trial by his former legal representatives.

Legal Advice Concerning Accused Giving Evidence at Criminal Trial

In circumstances where Ground 1(c) and (d) complain with respect to the Applicant not giving evidence at the trial, it is appropriate to refer to the decision of the High Court of Australia in Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13. In that case, it was accepted the decision as to whether an accused person gives evidence at his trial is for that person, not his counsel. In that case, the appellant declined to give evidence after he received incorrect legal advice as to the likelihood that, if he did give evidence, he would be cross-examined on his prior convictions. The Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) said at [3]: "The appellant appeals by special leave granted by Kiefel CJ, Bell and Keane JJ on 7 April 2017 on the ground that the Court of Appeal erred in finding that the incorrect advice did not result in a miscarriage of justice. The appellant contends that an essential component of a fair trial is the accused's informed choice to give evidence and it follows that the denial of an informed choice will, at least ordinarily, be a miscarriage of justice. For the reasons to be given, the generality of this proposition cannot be accepted. Whether the receipt of incorrect legal advice bearing on the accused's choice not to give evidence is productive of a miscarriage of justice requires consideration of the effect of the advice on the conduct of the trial. Here, that consideration does not establish that there has been a miscarriage of justice and, accordingly, the appeal must be dismissed."
In dismissing the appeal, the High Court said in Craig v The Queen at [32]-[36] (footnotes omitted) (emphasis added): "32 The onus is upon the appellant to establish that 'on any ground whatsoever there was a miscarriage of justice'. The category of miscarriage of justice that his argument seeks to engage is that the trial was not a fair trial: the exercise of his right to give evidence in his defence was effectively foreclosed by receipt of the incorrect advice. 33 The appellate court's assessment of whether the decision not to give evidence deprived the accused of a fair trial looks to the nature and effect of the incorrect legal advice on the accused's decision. It is not an assessment of whether an objectively rational justification for the decision can be assigned to it. The point may be illustrated by the extreme example posited by Gleeson CJ in Nudd v The Queen of the accused who fails to give evidence because counsel wrongly advises that an accused is not entitled to give evidence. His Honour considered that it was difficult to imagine that an appellate court would not intervene in such a case. That would be so even if the appellate court considered that the accused's failure to give evidence was forensically justified: a fair trial requires that the accused be aware of the entitlement to give evidence in his or her defence notwithstanding that that choice may be unwise. 34 Putting to one side Gleeson CJ's extreme example, the appellate court's determination of whether incorrect legal advice bearing on the accused's decision not to give evidence has occasioned a miscarriage of justice is not without difficulty. Necessarily it is a determination that will only arise following a trial at which the accused has been convicted. It would be unrealistic not to recognise that the reliability of an accused's honest evidence on appeal, that he or she would have given evidence had the incorrect legal advice not been given, may be affected by an element of hindsight reasoning. And, as here, the decision not to give evidence may be the product of a combination of factors, not all of which are tainted by the incorrect legal advice. The conclusion that the trial of an accused was not a fair trial requires the appellate court to be satisfied that it was the accused's wish to give evidence and that the incorrect legal advice effectively deprived the accused of the opportunity to do so. 35 Here the appellant knew that he had the right to give evidence. He had discussed the relative merits of various defences with his counsel and solicitor at conferences before the trial commenced. He understood that his account in the interview raised an arguable 'defence' that in his intoxicated state he had not formed the intent which would make his act murder. And he understood that there was significant tactical merit in not giving evidence and in having his defence conducted on the basis of that account. Nonetheless, he contends that his trial miscarried because his fear of the disclosure of his criminal convictions, about which he received the incorrect advice, was more important to the decision not to give evidence than his fear of disclosure of the inconsistencies in his accounts of how the deceased died. 36 The error in counsel's advice was not in advising the appellant of the risk that if he gave evidence the jury might learn of his criminal convictions, but in counsel's estimate of the likelihood that that risk would come home. It is a large proposition that the appellant's decision not to give evidence was not an informed decision because a material factor in making it was his understanding, based on the incorrect advice, that the consequence that he most feared was a likely consequence of testifying and not merely a possible consequence of testifying."

The Trial of the Applicant

The Judge-alone trial of the Applicant proceeded on 7 December 2016. The Applicant had the assistance of an Arabic interpreter throughout the trial.
It was the Crown case that the complainant, TS, was operating a business selling Amway products. It was alleged that on the day of the offence, 16 December 2014, TS went to the Applicant's home in order to deliver some products to him. The Applicant met her outside the front of the house. TS said that the Applicant put out his arms to hug her and she hugged him back briefly, but then let go of him. TS stated that the Applicant continued with the hug, moved closer and put his head on her shoulder. She said some comforting words in relation to the court case which he had told her about on the previous day.
TS stated that the Applicant then pulled himself up against her body so that she could feel his erect penis. He began kissing her neck with an open mouth. TS pushed him away and reminded him that she was married. She then went into his house for a period of about 15 minutes and showed him the products that she had brought. After that, TS complained to her husband, read an internet article about the charges the Applicant faced and went to the police to report the incident (T3-5).
The Crown prosecutor particularised the offence as the Applicant's act of kissing the complainant whilst pressing his body against her, including his erect penis (T4).
Defence counsel opened at the trial and indicated that the bulk of the evidence to be led by the Crown was not in dispute. This included that the Applicant had only met the complainant the day before the day of the alleged offence and that, on their first meeting, there had been a hug although without any incident of indecency. The Applicant's case was that he accepted that, on the day of the offence, he hugged the complainant and kissed her on the cheek, but he disputed kissing her neck and pressing his penis against her (T5).
The cross-examination of TS was conducted principally on the basis that the hug she received from the Applicant was no different to the hug she received the previous day about which she did not complain (T29), after which she accompanied the Applicant into his home. It was put to TS that she was mistaken about where she was kissed and about whether the Applicant's penis was erect. It was suggested that this mistake arose wholly or partly because, following the incident, TS had read articles concerning the Applicant's other charges (T31). Other aspects were explored in cross-examination, including possible inconsistencies in the complainant's description of events (T29).
Apart from TS, the Crown called Yvonne Kairouz, a friend of TS (T39-49) and AS, the husband of TS (T56-57). Detective Senior Constable Tim Miller was also called by the Crown (T59-62).
The Applicant did not give evidence at the trial. He had not participated in an electronically recorded interview with police.
Trial counsel for the Applicant, in his closing address, did not deny that something had occurred on the day in question between the Applicant and TS. It was argued that there had been a hug, but not indecency (T80-81). Within that submission, there was reference to the items that TS was carrying in such a way that the ordinariness of their embrace was said to be obvious (T81).

Judgment after Judge-Alone Trial

As noted earlier, the evidence in the trial was completed on 7 December 2016. Closing addresses were made on 8 December 2016 following which the trial Judge reserved his decision until 13 December 2016.
Given the grounds of appeal, it is not necessary to set out in detail the decision of the trial Judge finding the Applicant guilty of the offence. No complaint is made concerning any directions or findings contained in his Honour's judgment.
The trial Judge said with respect to the evidence of TS (pages 6-7): "One aspect of determining whether a person who has given evidence is telling the truth is to consider whether they have acted in a way which is consistent with the truth of the allegations made. In this case the complainant has acted entirely consistent with the way I would expect a woman in her position to have acted after having been indecently assaulted in the way she described. She made an immediate complaint to her husband, telephoning very shortly after she left the accused's premises. As she spoke to her husband she was distressed. That is consistent with the behaviour of a woman who has just been indecently assaulted. Of course an argument was put to the contrary, namely the fact that the complainant entered the accused's home after she said she had been indecently assaulted by him indicates the unreliability of her claim to have been indecently assaulted. Whilst it certainly points in that direction, I do not consider the circumstance to have been of overwhelming significance. The complainant was asked why she had gone inside the accused's home with him after he had kissed her on the neck and pressed his erect penis up against her. She described that she was in effect acting on autopilot and in a state of shock. That reaction is easily understood, especially in circumstances where the complainant was trying to cement a business relationship with the accused and where what the accused had done to her, whilst no doubt unpleasant and distressing, was not of sufficient seriousness for her to respond by abandoning the meeting. It is important to note the condition the complainant was in when she was complaining about what the accused had done, first to her husband and then later to her friend Yvonne. Both of those witnesses gave unchallenged evidence on this issue. As I have noted above, Ms Kairouz described the complainant as shaking and her husband said she was holding back tears. I find the complaint was made by the complainant at a time and in a manner that would indicate that the allegation was reliable, that is, the allegation is less likely to have been fabricated by the complainant and more likely to be accurate. Of course the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated."
After addressing other aspects or the evidence, including submissions made by trial counsel for the Applicant, the trial Judge expressed the following conclusions (pages 12-13): "As is almost universally the case in criminal law, there are factors pointing towards the accused's guilt and factors pointing [in] the opposite direction. What I have to do is to weigh up all the evidence in the case and decide whether I am satisfied that the Crown has proved the guilt of the accused beyond reasonable doubt. In this case the primary and indeed determinative question for me to resolve is whether the Crown has proved beyond reasonable doubt that the accused kissed the complainant on her neck and shoulders whilst pressing his erect penis against her. The complainant was an impressive and careful witness whose conduct and observed distress after the relevant interaction with the accused are consistent with her belief that the accused had acted in the manner she said he had. The only aspect of her behaviour which was arguably inconsistent with having been indecently assaulted is, upon examination, easily explicable as a reaction to shock and a failure to immediately decide what to do about a most unexpected and unwelcome event. There is no reasonable possibility that she was mistaken either. That a woman would mistake four open-mouthed kisses to her shoulder and neck for an innocuous kiss on the cheek, (or even more than one), is not a reasonable possibility. A similar thing can be said of the complainant's evidence regarding the accused pressing his erect penis against her. Her explanation of why it is that she could not be mistaken about the nature of the object pressed against her is compelling. The other behaviour described, the deep breathing, the tightness of the embrace and the finding of the makeup on the accused's shirt all suggest the accuracy of the complainant's description as to the nature of the events that morning. Cross-examination of the complainant revealed nothing to damage the reliability of the complainant's evidence. This is not the fault of the cross-examiner either. An honest witness with a good recollection of events is the sort of witness who only becomes more reliable as cross-examination continues. Certainly, as I have mentioned, Mr Gleeson raised arguments worthy of consideration. I have mentioned them earlier and explained why I do not consider them compelling. When I perform the exercise required of me, when I consider all of the evidence called by the Crown and arguments advanced by the parties, I find that I am satisfied beyond reasonable doubt the accused did kiss the complainant on her shoulder and neck, while pressing his erect penis against her. "
After identifying the elements of the offence, the trial Judge concluded (pages 14-15): "I am satisfied that it is contrary to the ordinary standards of respectable people in this community for a person to kiss a virtual stranger with an open mouth on her neck and shoulders, whilst pressing his erect penis against her. Finally, given the circumstances of the meeting that morning and the fact that they had met only once before, I am satisfied beyond reasonable doubt that the accused knew the complainant was not consenting to being kissed in the way she described, while the accused's erect penis was pressed into her. The result is that I am satisfied beyond reasonable doubt that the accused is guilty of the single count on the indictment."

Evidence Adduced at the Hearing Before this Court

In this Court, the Applicant gave evidence by audio-visual link from the Melbourne Immigration Detention Centre. As noted earlier, an Arabic interpreter was present at the hearing, but his services were not needed as the Applicant appeared to have a more than reasonable command of English.
The affidavits of the Applicant made a range of allegations concerning the conduct of his trial by his then legal representatives. It is necessary to confine attention to the two aspects about which complaint is made in the ground of appeal pressed in this Court (see [6] above).
In his affidavit affirmed 26 March 2021, the Applicant stated that, during an adjournment after the close of the Crown case, he spoke to Mr Gleeson and Ms Heathcote and told them that he wished to give evidence in the defence case at the trial. He stated that he was advised not to give evidence and that he felt pressured into not giving evidence. He stated that he maintained his instructions that he wished to give evidence and was shocked when his counsel told the trial Judge that there was to be no defence case.
The Applicant also stated that he told his legal representatives that he wished them to challenge TS upon the question whether there could be a hug in circumstances where she was holding two bottles (see Ground 1(b) at [6] above).
In oral evidence, the Applicant acknowledged the advice of his legal representatives not to give evidence, but maintained that he instructed them that he wished to give evidence, but that his instructions were ignored.
Mr Gleeson stated in his affidavit that the decision not to give evidence at the trial was made by the Applicant after the receipt of legal advice. In his affidavit, Mr Gleeson had expressed the erroneous understanding that the Applicant had provided signed instructions that he did not wish to give evidence. There were no written instructions to this effect. However, Mr Gleeson was otherwise clear in his recollection of events.
At the close of the Crown case on 7 December 2016, the trial Judge had adjourned for a period to allow Mr Gleeson to confer with the Applicant as to whether he wished to give evidence. Although Mr Gleeson asked for an adjournment until the next morning, the trial Judge allowed a shorter adjournment to ascertain the position.
In cross-examination by counsel for the Applicant, Mr Gleeson was asked about the legal advice provided to the Applicant during the short adjournment late on 7 December 2016 (T33-34, 29 September 2021): "Q. Okay because in your first sentence you say the decision not to give evidence at his trial was made by - this is from paragraph 16 - was made by Mr Hanna following legal advice. Doing the best you can what advice do you recall providing Mr Hanna? A. It would have been the stock phrase we use when we defend and it was 'This issue has now been reached, it's a matter for you whether or not you wish to give evidence'. I have to say that there was a number of elements of I'll call it Mr Hanna's character throughout the trial that concerned me and his ability to give clear and purposeful evidence in his defence. The issues were very narrow, I think I said in my affidavit the case without dismissing seriousness of the charges, was serious enough but it wasn't a case that required - it wasn't voluminous in terms of the material. So in terms of the advice it would have been in my experience the advice that I [tended] to give on each occasion it has been reached, the point's been reached, his Honour's given us time to discuss whether or not there is to be a defence case. My view was that I expressed to Mr Hanna not only in that conference but in several other conferences that we held with him that he wouldn't be a particularly good witness in his defence. He was emotional at times, he was a little bit hyper, I use that word and me and Ms Heathcote formed a view that he wouldn't assist the case any further and it was really a dismantling of the Crown case that was required to test the evidence and my belief was that Mr Hanna would - he wouldn't improve his chances, so to speak, by giving evidence in his defence. Q. When you say you gave the advice that you've just outlined to Mr Hanna, the advice that you tend to give that namely the point had been reached, his Honour's given you time and you're now into a defence case, was that something that you recall actually telling Mr Hanna or is that something that you say you would have told him as that's your system that you use in trials? A. We certainly had that discussion in the court and we were allowed the time from his Honour to have that discussion. My view was forcibly put to Mr Hanna that I didn't think he would make a particularly good witness. As I say he at times he wished to give evidence, at other times he said he wasn't going to give evidence. That's not unusual in my experience in trials and so that his final decision in my view always rests with him, he was guided by both myself and Ms Heathcote to make that decision. I don't think he was entirely happy with it but that was his decision."
Mr Gleeson was asked in cross-examination concerning the relevance of his assessment of the evidence of the complainant to the advice given as to whether the Applicant should give evidence in the trial (T34-35): "Q. Do you accept sir that at this point in time that's at the close of the Crown case and I don't mean this by way of any criticism of you but the complainant ultimately wasn't shaken during the cross-examination? A. Yes she was a good witness, good witness in terms of the usual tick marks that you put next to a witness who gives evidence. She was credible, she was consistent, she was controlled. As a complainant in a sexual assault allegation she was a very good witness. Q. Do you accept that in noting that and in those circumstances it would be more important for Mr Hanna to get in the witness box rather than not get in the witness box? A. No, I don't agree with that, I think in terms of a call as to whether or not he can improve on what - how the evidence had in effect fell, my view was that he wasn't going to assist his defence by giving evidence. Q. Did you provide the appellant at any time with advice to the effect about the risks of not giving evidence, that is how his Honour might determine the matter without him getting in the witness box? A. Yes there would have been a debate about or a discussion about that aspect of the case of the judge not hearing from Mr Hanna particularly in a below [sic] trial such as this one was yeah. Q. Did you feel that it was important for Mr Hanna to get in and give evidence in the circumstances where he had not provided police with an interview? A. Absolutely not[.] I conferenced Mr Hanna at length prior to the decision as to whether or not he would give evidence in his defence[.] [T]here were several conferences not only in court but also in the cells. As I said earlier I'm sorry to repeat myself but it was a combination of factors[.] I thought the evidence would not be assisted by calling Mr Hanna that was made up of a number of decisions that I made noting Mr Hanna's personality, his character, look he wasn't in terms of a client he was perfectly fine and he was invested in his case. My recollection of Mr Hanna[,] we got along quite well, we had a cordial relationship throughout was my opinion of our relationship. He listened to me and[,] as I say[,] I expressed my concerns that he would not assist himself by giving evidence in this particular trial."
Mr Gleeson rejected a suggestion made in cross-examination that the account he used in cross-examining the complainant at the trial was based upon the instructions of the Applicant as to what happened the previous day (15 December 2014) rather than the date of the alleged offence (16 December 2014) (T38).
Mr Gleeson rejected a number of propositions put to him in cross-examination concerning the conversation with the Applicant as to whether he was to give evidence at the trial (T38-39): "Q. I'm just going to ask you now some questions about, very briefly, about 7 December 2016, that's the first day of the trial? A. Okay, thank you. Q. You agree, sir, that there was opportunity when his Honour stood the matter down so that you could obtain instructions from the appellant? A. Yes. Q. I suggest to you, sir, that during this opportunity that's at the end of the day after the Crown has closed its case that you said to the appellant, 'The judge already knows about your previous cases where you were found guilty, he will find you guilty straight away if you give evidence.' Did you say those words to the appellant? A. Absolutely not. Q. I suggest to you that you also said to the appellant, 'The judge will be racist against you,' do you agree or disagree? A. Absolutely not. Q. I'm sorry, sir? A. Sorry, I disagree. Q. I suggest to you that the appellant said to you during this conference after the Crown case, 'I trust you but I still want to give evidence.' Do you agree or disagree? A. He may have said that, he could have said that. As I said earlier I think in my evidence Mr Hanna was toing and froing whether he would ultimately give evidence and he may well have said that in that conference, however, both myself and Ms Heathcote moved forward with the case in the sense of whether or not there was to be a defence case based on his instructions that he wasn't going to give evidence. Q. You accept that you said things to the appellant words to the effect, 'You will be found guilty if you get into the box'? A. No, I disagree with that. Q. Do you accept that you said these words to the appellant, 'The judge will hate you'? A. I disagree with that."
In her affidavit of 3 March 2021, Ms Heathcote stated that a conversation took place with Mr Gleeson and the Applicant at the close of the Crown case which culminated in the Applicant indicating that he did not want to give evidence at the trial (paragraphs 27-28). She stated that the trial was adjourned until the next day for closing addresses and a conference was held with the Applicant and Mr Gleeson before Court the next morning before the closing addresses. Ms Heathcote stated that Mr Gleeson explained the points he was going to raise in the closing address and that at no stage did the Applicant indicate that he had changed his mind and that he wanted to give evidence (paragraph 31).
With respect to possible cross-examination concerning bottles (Ground 1(b)), Ms Heathcote stated that a decision had been made by Mr Gleeson and herself not to cross-examine TS about the bottles as the Applicant had provided instructions that the hug in fact had taken place. As the hug itself was not being put in issue, it was considered that any cross-examination concerning the bottles would not advance the Applicant's case at trial (paragraphs 39-42).
Attached to Ms Heathcote's affidavit of 3 March 2021 were her file notes for a conference held in the empty courtroom between 3.15 pm and 3.45 pm on 7 December 2016 (Annexure J). The file note recorded advice given to the Applicant not to give evidence and culminated with an indication that the Applicant "indicated if happy with points going to be covered in closing he won't give evidence". In evidence, Ms Heathcote confirmed that she had created the file note using a laptop (T19).
Ms Heathcote was asked in cross-examination concerning her own assessment of the Applicant as a witness in his trial (T21-22): "Q. You say in paragraph 12 that the appellant did not impress you as a credible witness, do you see that? A. Yes, I do. Q. What do you mean by that? A. I had concerns through my conferences with the applicant that he would come across as quite aggressive and angry. He also when we conferenced him had issues answering the question and not - bringing up information that wasn't relevant to the question so I myself had concerns that if he gave evidence he was going to speak about things that weren't relevant and possibly damaging, that he would get angry and speak badly about the complainants. They were my concerns in general, that he just wouldn't - he wouldn't impress the Court as somebody who was I guess a good witness. Q. Do you appreciate that this was a judge alone trial? A. Yes, I do. Q. Rather than a jury trial? A. Yes. Q. Did that have any effect on your impression about the appellant giving evidence? A. Yes, because one of my main, main concerns was that the applicant really wanted to discuss the entire case against him. He had difficulty in answering questions without bringing up the other trial but the judge would have been aware that he was on bail and charged with other offences, he certainly wouldn't know that he'd been found guilty and also going into a lot of conspiracies and things like that we just didn't want any of that going before the Court. We tried very hard to separate these trials, to have kind of smaller trials with more defined issues or, sorry, narrower issues, and I was concerned that if the applicant gave evidence he was going to bring up all of the other complainants, the fact that he'd been found guilty at the previous trial and that would have caused issues for us."
The cross-examination of Ms Heathcote concluded in the following way (T29-30): "Q. Ma'am, I suggest to you that at no time during the second of those two conferences did the appellant say words to the effect that 'I don't want to give evidence'? A. No, he did. No, I disagree, he did. It was very clear at that second conference that he didn't want to give evidence. Q. I suggest to you that after his Honour had left the bench when matters concluded for the day at Court on 7 December 2016 that the appellant raised with you and Mr Gleeson, 'why did you say that there would be no defence case' do you agree or disagree? A. I disagree, yeah, I don't remember that happening. Q. Okay, I suggest to you that Mr Gleeson responded to the appellant saying the following, 'It is too late now to do anything. We've won, why are you worried?' Do you agree or disagree? A. No, I disagree with that. If he had changed his mind overnight that he wanted to give evidence or was unhappy we definitely would have raised that and we would have tried to ask that he be allowed to give evidence and that we could reopen the defence case. We definitely would have made that application if he changed his mind, yeah. Mr Gleeson didn't say that."

Submissions for the Applicant

Mr Norrie, counsel for the Applicant, submitted that a miscarriage of justice had been demonstrated so that the appeal against conviction should be allowed.
It was submitted that the Court should accept the evidence of the Applicant concerning his desire to give evidence at the trial. Criticisms were made of the evidence of Mr Gleeson and Ms Heathcote including the mistaken assertion by Mr Gleeson that the Applicant had given written instructions that he did not wish to give evidence at the trial.
It was submitted that the circumstances of this case fell within Craig v The Queen so that the Court should conclude that a miscarriage of justice has occurred. Counsel for the Applicant acknowledged that Ground 1(c) and (d) are overlapping and both relate to the circumstances in which the Applicant did not give evidence at the trial.
With respect to the matter complained of in Ground 1(b) concerning the failure to cross-examine TS with respect to the bottles, it was submitted that Mr Gleeson had misunderstood the instructions he had been given so that the cross-examination of TS at the trial related to the Applicant's instructions with respect to the previous day (15 December 2014) and not the day of the alleged offence itself. It was submitted that there had been a failure to cross-examine the Applicant with respect to the bottles so that, in this respect as well, a miscarriage of justice had occurred at trial.

Submissions for the Crown

The Crown submitted that the Court should accept the evidence of Mr Gleeson and Ms Heathcote to the effect that the Applicant, having received advice from his trial legal representatives, gave instructions that he did not wish to give evidence at the trial. It was submitted that the Applicant knew he could give evidence at the trial, but that he decided not to do so after receiving advice.
The Crown submitted that the evidence of the Applicant on this issue should not be accepted. It was submitted that his evidence was unconvincing and, at times, unresponsive. If the Applicant had indeed indicated at the close of proceedings on 7 December 2016 that he wished to give evidence in the trial, it would have been open to make an application the next morning, prior to closing addresses, for the Applicant to be allowed to give evidence in the trial. No such application was made. The file notes of Ms Heathcote with respect to the conference on 7 December 2016 and the events the following morning were, it was submitted, supportive of the Applicant's provision of instructions that he did not wish to give evidence.
The Crown submitted that application of the principles in Craig v The Queen did not demonstrate that a miscarriage of justice had occurred in this case arising from the Applicant not giving evidence at his trial.
With respect to the remaining issue raised by Ground 1(b), the Crown submitted that the evidence of Mr Gleeson and Ms Heathcote explained what occurred at trial, and why cross-examination had not occurred on this topic. Insofar as the Applicant contended that his legal representatives had mistaken their instructions and conducted the trial upon the basis of the events on the preceding day (15 December 2014), the Crown submitted that the Court should reject the evidence of the Applicant on this issue.
It was submitted for the Crown that this was a trial where the issues were in short compass. The Applicant had not demonstrated that the cross-examination of the complainant had been based upon something other than the instructions from the Applicant. No miscarriage of justice was demonstrated as asserted in Ground 1(b).
The Crown submitted that the Applicant had failed to make good any ground of appeal so that the appeal should be dismissed.

Decision

The Applicant bears the onus of establishing facts to found a conclusion that a miscarriage of justice resulted from his trial: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [63]; Craig v The Queen at [32].
It is appropriate to observe that the Applicant was not an impressive witness. He had a tendency to give short speeches rather than direct answers to the questions asked. In making these comments, I have taken into account the language issue, but note that the Applicant at no stage sought the assistance of the interpreter when answering questions.
It is fair to say that the Applicant's performance in the witness box in the Court of Criminal Appeal sheds some light upon his likely performance if he had been called to give evidence at his trial. The advice he was given by his trial legal representatives should be considered in this context.
The evidence of the Applicant also brings to mind the observation made in Craig v The Queen at [34] (see [24] above) concerning the impact of hindsight where an accused person seeks to challenge conviction by a ground of appeal claiming incompetent legal representation which is said to have given rise to a miscarriage of justice.
In areas of dispute, I accept the evidence of Mr Gleeson and Ms Heathcote to that of the Applicant.
With respect to Ground 1(c) and (d), the Applicant was well aware of his right to give evidence at the trial. His counsel and solicitor sought and were granted an adjournment at the conclusion of the Crown case to take instructions from him on the question whether he was to give evidence. The topic had been discussed on prior occasions, but it was prudent for his legal representatives to confer with the Applicant at that point in the trial to obtain instructions on that specific issue. That is what happened.
Having had an opportunity to observe the Applicant give evidence in this Court, it is understandable that his lawyers considered that he would not have been an impressive witness at his trial. The evidence of Mr Gleeson and Ms Heathcote was that each had formed the view that he was emotional, with a tendency to give unresponsive answers raising what may well have been prejudicial content.
Mr Gleeson was an experienced barrister in criminal matters who called in aid his own experience in providing advice to the Applicant in the context of the trial. I accept that the Applicant waxed and waned somewhat concerning the question whether he would give evidence. However, by the time the conference was completed on the afternoon of 7 December 2016, I accept that his final position was that he did not wish to give evidence at the trial.
I am satisfied that on the morning of 8 December 2016, the Applicant was told of matters which Mr Gleeson proposed to submit in his closing address that day. The Applicant was content with the approach which counsel intended to take and this confirmed his decision not to give evidence at the trial. The fact that no application was made that morning for the Applicant to give evidence supports a conclusion that he was content for the trial to proceed and be concluded without him giving evidence.
If the Applicant made clear to his legal representatives at the conclusion of proceedings on 7 December 2016, or on the following morning, that he wished to give evidence in the trial, I have no doubt that application would have been made to the trial Judge for leave to call the Applicant to give evidence. It was a Judge-alone trial and closing addresses had not yet commenced. If the Applicant had been adamant, against the advice of his legal representatives, that he wished to give evidence, then such an application would have been made. However, that did not happen.
The decision as to whether the Applicant was to give evidence was made by him after receiving legal advice. What occurred in this case did not fall foul of the principles explained in Craig v The Queen. It has not been demonstrated that the Applicant was given incorrect legal advice. The advice given to the Applicant by Mr Gleeson and Ms Heathcote was understandable given their assessments of the Applicant as a potential witness in the trial.
This is a case involving an accused person who vacillated about giving evidence in the face of the advice given to him by his legal representatives as to the risks if he gave evidence in the trial. That was not incorrect legal advice, but advice based upon the judgment of his experienced trial counsel in the context of the trial.
In Craig v The Queen, it was said at [34] (see [24] above) that the conclusion that the trial of an accused person was not a fair trial requires the appellate court to be satisfied that it was the accused person's wish to give evidence and that incorrect legal advice effectively deprived the accused person of the opportunity to do so. In my view, the circumstances of the present case fall far short of demonstrating such a miscarriage of justice.
The Applicant made an informed decision based upon the advice which he received. The Applicant's evidence in this Court is affected by a strong element of hindsight reasoning: Craig v The Queen at [34] (see [24] above). The Applicant has failed to demonstrate that a miscarriage of justice occurred in this case.
It should be observed, for completeness, that it would have been highly desirable to have obtained signed instructions from the Applicant that he did not wish to give evidence so that there were contemporaneous written instructions to that effect. This is a sensible precaution for legal practitioners to take and can operate to guard against disputes of the type involved in this appeal. It may be that, in this case, no signed instructions were taken on the afternoon the Crown case closed given that, as recorded in Ms Heathcote's file note, the Applicant indicated that he wanted to confirm the next morning that the points to be covered in closing would adequately present his case and that, by the next morning, in the context of the imminent presentation of the closing address and the Applicant's apparent satisfaction with it, the question of signed instructions was overlooked. Despite the absence of such signed instructions, it should be observed that the resolution of the issues on the appeal was greatly assisted by Ms Heathcote's detailed, contemporaneous, file notes.
However, this appeal is not to be determined by reference to best practice or what may have been the desirable professional approach for his legal representatives to take. It is for the Applicant to demonstrate that a miscarriage of justice has occurred and he has failed to do so.
I reject Ground 1(c) and (d).
With respect to Ground 1(b), the Applicant's legal representatives considered the question of whether cross-examination of TS concerning the bottles should take place and the view was formed that questions along those lines would not advance the Applicant's case. That was a rational forensic decision. I am not satisfied that there was any confusion on the part of Mr Gleeson and Ms Heathcote concerning the events on 15 December 2016 and 16 December 2016. It has not been demonstrated that the trial of the Applicant proceeded in accordance with anything other than the instructions which he gave to his legal representatives for the purpose of the trial.
The matter complained of in Ground 1(b) has no substance.
The Applicant has not made good any of the matters complained of in his ground of appeal.

Conclusion and Orders

The Applicant has failed to demonstrate that a miscarriage of justice occurred in his trial.
As there is no merit in the Applicant's ground of appeal, no useful purpose would be served in granting an extension of time in this case. It follows that the interests of justice do not require an extension of time for the Applicant to seek leave to appeal against conviction under s.5(1) and s.10(1) Criminal Appeal Act 1912.
I propose that the application for an extension of time within which to seek leave to appeal against conviction should be refused.
FULLERTON J: I agree with Johnson J.
DHANJI J: I agree with Johnson J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 February 2022

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