HOBART, 19 March 1997 (hearing), 11 April 1997 (decision)

1. I have had the advantage of reading the reasons for judgment prepared by Wright J. I agree with them and they, in substance, reflect the reasons why I joined in the order to dismiss the appeal on 19 March 1997. I record, furthermore, that I found the sworn evidence of the appellant and her co-accused Kelly lacking in credibility and where it conflicted with that of counsel who appeared on the trial, I had no hesitation in preferring the latter to it.

2. The appellant and Gregory Stanley Kelly ("Kelly") were jointly indicted on one count of burglary and one count of assault. Kelly was additionally charged with one count of unlawfully injuring property. The particulars to these counts alleged that:

Kelly unlawfully injured an external door to a property at 36 Main Street, Ulverstone by smashing the glass therein;

Kelly and the appellant entered 36 Main Street as trespassers with intent to commit the crime of assault; and

Kelly and the appellant unlawfully assaulted Kevin Hume ("the complainant") by punching, striking and kneeing him about the head.

3. The appellant and Kelly pleaded not guilty to all counts. Both were found guilty of each count charged against them and the appellant was sentenced to eight months' imprisonment with the execution of the last four months of that sentence conditionally suspended. The appellant appealed against her convictions. At the conclusion of the hearing of the appeal, I joined in an order dismissing the appeal. These are my reasons for doing so.

4. The single ground of appeal was that there had been a miscarriage of justice by reason of the manner in which the appellant's then solicitor/counsel had conducted her defence. Seven particulars of this ground were set out in the notice of appeal.

5. As I observed in Austin v R A88/1996 at 5, the categories of circumstances giving rise to a miscarriage of justice, are not closed. See Wyatt v R (1990 - [1991] FCA 60; 1991) 99 ALR 490 at 493; Jago v District Court of New South Wales & Ors (1989 - [1989] HCA 46; 1990) 168 CLR 23 at 57. Although counsel's conduct of a trial can give rise to a miscarriage of justice, it is a fundamental general proposition of the adversary system of justice that an accused person is bound by the way his or her counsel conducts the trial. In R v Birks (1990) 19 NSWLR 677 at 683, Gleeson CJ expressed the general proposition as follows:

"As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics."

6. His Honour summarised the relevant principles in the following terms at 685:

"1 A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2 As a general rule an accused person 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 involve errors of judgment or even negligence.

3 However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention."

7. In Gallagher v R (1985 - [1986] HCA 26; 1986) 160 CLR 392, the High Court held that in cases where an alleged miscarriage of justice occurred by reason of a failure to call certain evidence, the miscarriage is not made out unless the evidence is apparently credible and if believed, might reasonably have led the jury to return a different verdict. The members of that court used slightly different expressions, all to the same effect:

"likely to have produced a different result" per Gibbs CJ at 399;

"a significant possibility" of a different result per Mason J (as he then was) and Deane J at 402;

"a likelihood of acquittal" per Brennan J at 410;

"a real possibility of an acquittal" per Dawson J at 421.

8. These principles are well established, see Re Knowles [1984] VicRp 67; [1984] VR 751; Ignjatic v R (1993) 68 A Crim R 333 and have been applied in this Court on more than one occasion. See, eg, Clark v R A30/1996 Philpott v R A31/1996 and Austin v R (supra). They apply in this case.

9. The Crown case was that the complainant and Kelly had known each other for over twenty years and that the complainant's daughter was a former girlfriend of Kelly. The appellant was Kelly's then current girlfriend. The Crown case was that the appellant harboured ill-feelings towards the complainant and his daughter because the appellant believed that the latter had been "going around saying that [the appellant's] daughter had AIDS." It appeared from the evidence that about two or three weeks before the commission of the crimes charged, there had been an argument between Kelly and the complainant that began in a hotel and concluded with a psychical fight in the complainant's house.

10. The complainant's evidence was to the effect that at about 10pm on the night in question, he was in bed asleep when he heard his wife (who occupied another room) call out that there was someone there. The complainant said in evidence that he then heard the glass in the front door being smashed so he got out of bed and went to his bedroom door. There he was met by Kelly, the appellant and a young man who had accompanied the others to the house. The complainant said that he had only met the appellant once before. He went back to bed and said to Kelly and the appellant that he did not want any trouble. The complainant said that the appellant and Kelly threatened him with violence and asked him in abusive language where his daughter was. He said that Kelly then came up to where he was sitting in the bed and started punching him around the head. He said that Kelly punched him about six or eight times and then the appellant punched him about the head three or four times. He said that the appellant kneed him to the head and Kelly punched him a couple more times. The complainant gave evidence that the young man then said that was enough, and all three left the room. The young man did not strike the complainant at all. The complainant said that the appellant smashed "all me flower arrangements in the passage as she went out of the door".

11. The police were called and an ambulance attended. The following day detectives took the complainant to see a general medical practitioner in Ulverstone. No medical or para-medical evidence was given at the trial, but a photograph of the complainant taken the following morning was put in evidence. It depicted extensive facial injuries.

12. The appellant and Kelly lived only about 500 metres away from the complainant's house. The appellant and Kelly said in their evidence that they and others were drinking alcohol during the afternoon and evening of the day the crimes were alleged to have been committed. The appellant and Kelly said that at some stage during the evening the appellant and two others left the appellant's home to go and get some more liquor. Kelly said that while the appellant was away on this errand, he left the house to go around to the complainant's house to see if he could "work out this dispute with him". Meanwhile, the appellant said that on the way to get more liquor she realised that she had left her key card at home and returned to get it.

13. Kelly said that he was quite intoxicated and affected by prescribed morphine that he had taken. He said that his memory of the events was poor but he recalled sitting on the complainant's bed and arguing with him. He said that he noticed blood on the complainant's face. He claimed that the complainant had head butted him and that he hit the complainant in self defence. Kelly said that he recalled the appellant coming in to the complainant's bedroom, grabbing him by the arm and telling him to leave. Kelly's evidence was that at this time he heard the appellant say to the complainant, "your cock sucking daughter, I want to see her" but denied that the appellant assaulted the complainant in any way.

14. According to the appellant's evidence, when she got back to her house she heard yelling from the direction of the complainant's house and ran over there. She said that she saw that the glass in the door was smashed. She said that she and one of the young men who had gone with her in the car went into the complainant's bedroom and there she saw the complainant sitting in bed with blood on his face with Kelly standing about an arm's length from him. The appellant said that she swore about the complainant's daughter but was unable to recall what she had said. The appellant said that she, with the help of the other man, then dragged Kelly out of the room. She denied that she assaulted the complainant at all. She also denied knocking over a flower arrangement on the way out of the house. The appellant said that she was angry with Kelly for going round to the complainant's house and when they got back to her house she "hit the brick wall and he took off to the shed and [she] went inside".

15. The appellant was interviewed by the police and the interview was video recorded. The jury might have thought that she did not tell the police the truth about her identity. She initially said that her name was Lisa Crawford but later agreed that she had been convicted of a drink driving offence in the name of Hannah Blake. However, with respect to the events on the night in question, the account the appellant gave the police was in substantial accord with the account she gave at the trial.

16. The following evidence was adduced on the hearing of the appeal:

An affidavit by the general medical practitioner who examined the complainant the morning after the incident.

An affidavit from one of the ambulance officers called to the complainant's home on the night of the incident.

An affidavit from the appellant about how she sustained injuries to her knuckles and what instructions she gave her solicitor/counsel. The appellant was cross-examined on her affidavit.

An affidavit from the employer of the appellant's solicitor/counsel.

An affidavit from Kelly about instructions the appellant gave her solicitor/counsel. Kelly was cross-examined on his affidavit.

An affidavit from the appellant's solicitor/counsel about the instructions the appellant had given him and the advice that he gave her. The appellant's solicitor/counsel was cross-examined on his affidavit.

17. With this background it is now necessary to examine each of the complaints made upon the appeal about the conduct of the appellant's solicitor/counsel at the trial and deal with the submission that by reason of the matters complained of, there was a miscarriage of justice at the trial. It is appropriate to interpolate at this stage that the same solicitor/counsel acted for both Kelly and the appellant at the trial.

"(a) No steps were taken by the Appellant's legal advisers to investigate prior to trial or to attempt to establish at trial, evidence from a doctor and ambulance officers who assessed and treated the victim after the alleged assault ('the assault') when:

(i) Such evidence was available; and

(ii) It supported the Appellant's case."

18. The medical practitioner deposed to the following result of her examination of the complainant:

"(i) Abrasions and bruisings to his forehead;

(ii) Right periorbital haematoma and swelling;

(iii) Bruising, swelling and a minor laceration to the left ear pinna;

(iv) Abrasion to the dorsum of the nose;

(v) Superficial minor laceration and bruising to the left cheek;

(vi) Small laceration and swelling of the inner surface of the lower lip in the midline, and

(vii) A two centimetre diameter haematoma to the left occuput."

19. The medical practitioner deposed that she was unable to say from her examination how many blows the complainant had suffered, nor how hard those blows were, except that they were strong enough to tear the skin and cause abrasions, but not strong enough to break any bones.

20. Mr Douglas, who appeared for the appellant on the appeal, submitted that this material and the affidavit of the ambulance attendant, showed that the account given by the complainant in evidence was an exaggerated one in that he was not hit as many times as he claimed he had been hit. I do not agree with this proposition especially as the doctor expressly deposed that she could not say how many blows were inflicted. Further, the jury might well think that in the circumstances, some unconscious exaggeration of the number of blows inflicted was quite consistent with ordinary human behaviour and no indication that the substance off the complainant's evidence was unreliable. Quite contrary to Mr Douglas' submission it seems to me that if this medical evidence had been given at trial, it would have generally corroborated the complainant's account. The medical evidence was that there were seven separate sites of injury supporting the complainant's account that he had suffered a beating at the hands of some assailant or assailants. It was fanciful to submit that had the evidence been called there would have been a significant possibility of an acquittal.

"(b) No reasonable steps were taken by the Appellant's legal advisers to investigate prior to trial and to attempt to establish at trial, the absence of forensic investigations carried out by the police on the Appellant's clothes and rings when:

(i) Such evidence was available;

(ii) It supported the Appellant's case."

21. I have to confess to some difficulty in following the thrust of this complaint. As I understand it, Mr Douglas' point is that if the appellant assaulted the complainant as he claims she did, it is likely that his blood and tissue would have been under and/or on her rings and clothes. I understand that submission. The police failed to arrange for any forensic examination of the appellant's rings, hands or clothes. Thus, there was no evidence of any forensic investigation. I understand that. What I am unable to understand is how absence of any forensic evidence supports the appellant's case. Had there been forensic examination of the appellant's rings and clothes, and had it detected neither blood nor tissue, and had the appellant's solicitor/counsel had a reasonable opportunity to elicit this evidence, but failed to do so, there might be some point to the complaint, but this was not the case. This complaint was not raised with the appellant's solicitor/counsel when he was cross-examined on the hearing of the appeal so no light was shed on it there. It may be that the complaint really is that the solicitor/counsel failed to refer to the absence of forensic evidence in his closing address. If this is so, such failure can hardly be described as incompetence, for at the very best, it would only show that the police did not do something that they ought to have done in the course of investigating the complaint. There is no substance in this complaint.

"(c) No reasonable steps were taken by the Appellant's legal advisers to impugn the victim's credit as to the number, nature and force of blows applied to the victim's head when:

(i) There was inconsistent evidence available at the time of trial from a medical practitioner and ambulance officers; and

(ii) The victim had given several inconsistent accounts in a statutory declaration and depositions taken at committal proceedings."

22. I have already substantially dealt with this complaint. I would only add that perusal of the complainant's cross-examination at the committal hearing did not reveal any hint of him resiling from his account that he was hit about the head a number of times by both the appellant and Kelly. It is true that at the committal hearing he was unable to say exactly how many times he was hit and that there was "confusion" at the time he was hit, but such uncertainty and confusion almost always attends unexpected trauma. There is no substance in this complaint.

"(d) No reasonable steps were taken by the Appellant's legal advisers to impugn the victim and other witnesses' credit as to the lighting conditions that prevailed at the scene of the assault when:

(i) There was inconsistent evidence given as to the light that prevailed at the scene of the assault; and

(ii) If the only light that prevailed at the scene came from the corridor outside the room, the victim could have only seen the silhouette of those who attacked him."

23. At the trial it was common ground that the appellant and Kelly were in the complainant's bedroom, that the complainant was in bed and that some person or persons had delivered a number of blows to his head. It was also common ground that the appellant bore feelings of ill-will to the complainant's daughter. The only issue was whether any of the blows were struck by the appellant. With respect to the two people in the room, the complainant had known one of them for twenty years and the other was a female, so the amount of light that was actually shining in the room was of very little significance upon the issue of whether the appellant hit the complainant. As the appellant's solicitor/counsel said in his affidavit, "the appellant's version of events was so different from that of the complainant that it could not be suggested that because of poor lighting conditions he was mistaken as to what he witnessed." There is no substance to this complaint. I might add that the appellant's solicitor/counsel did cross-examine the complainant about the light and when he did so, the complainant told the jury that the light was on in his bedroom although he did not recall turning it on himself.

"(e) No reasonable steps were taken by the Appellant's legal advisers to enquire and investigate prior to trial, or to attempt to establish at trial that the Appellant's knuckles were bruised as a result of a fight that occurred several days before the assault:

(i) It was inconsistent with the instructions given by the Appellant;

(ii) It left the jury without a credible explanation for the bruising of the knuckles of her right hand; and

(iii) It provided explanation as to why the victim would implicate the Appellant in the assault."

24. This complaint arises out of evidence given by the appellant and Kelly on the hearing of the appeal. In her affidavit, the appellant deposed that she told her solicitor/counsel and, on a different occasion, his employer, that she had been in a fight a few days before the alleged assault and that she had bruised her right hand in that fight. She said that this explained how she came by the injured hand that the police noted when they spoke to the appellant. In his affidavit, the appellant's solicitor/counsel's employer denied that the appellant told him that was how she injured her hand. In her oral evidence before this court, the appellant admitted that she had not told her solicitor/counsel's employer about the earlier fight after all. She explained that the sworn statement to the contrary in her affidavit was a mistake.

25. In their affidavits and in their oral evidence, both the appellant and Kelly maintained that the appellant did tell her solicitor/counsel about the earlier fight and the consequential injury. They said that his advice was to say nothing about that in evidence as "the jury will realise that you can bash a man and it will go against you." In his evidence, the solicitor/counsel produced a note that he made during an interview with the appellant. It referred to a fight about a week before the occurrence of the events that gave rise to the crimes charged. It appeared from the note that the male person with whom the appellant fought had some connection with the complainant. The solicitor/counsel said that he was unable to recall the appellant telling him that she had injured her hand in this fight. He said that the appellant told him that the man with whom she had a fight had been sent around by the complainant and she gave him the impression that she had got the better of this man. He denied giving the advice that the appellant and Kelly claimed he gave them.

26. I have no hesitation in rejecting the evidence of the appellant and Kelly given on the hearing of the appeal where it is in conflict with that given by the appellant's solicitor/counsel. Both were unimpressive witnesses. The solicitor/counsel's evidence was supported by the note he took at the time he received instructions. The appellant admitted that her sworn assertion about what she told her solicitor/counsel's employer was incorrect. She told the interviewing police that she injured her knuckles when she punched the wall after returning home from the complainant's house and said nothing to them about injuring her hand in an earlier fight. But in her evidence on cross-examination in this Court, she said that both events had happened. I reject her evidence. The appellant has not established that she instructed her solicitor/counsel that she injured her hand in a fight about a week before the occurrence of the events that gave rise to charges in the indictment.

"(f) No steps were taken by the Appellant's legal advisers to arrange with the Crown or to attempt by application at trial to delete from the Appellant's video taped record of interview all mention of the untruthful use of the name 'Lisa Crawford' and any questions pertaining to the use of that name and the Appellant's true name, when:

(i) It did not demonstrate a consciousness of guilt.

(ii) It put before the jury evidence of bad character by way of explanation;

(iii) It was not relevant to a material fact;

(iv) It undermined the Appellant's credit to the jury; and

(v) In the premises, it had little if any prohibitive weight but was highly prejudicial to the Appellant's case."

27. In her video interview with the police, the appellant told them that her name was Lisa Crawford. After some questioning about the events which gave rise to the indictment, one of the interviewing officers put to the appellant that her real name was Hannah Blake. This the appellant denied. There followed what is best described as "cross-examination" of the appellant by one of the interviewing officers during which it was put to her that she had certain distinguishing physical marks and tattoos. It was apparent from the way in which this questioning took place, that the police had in front of them some record of the appellant inferentially a police record. After displaying several tattoos and some scars when asked by the police to do so, the appellant told the interviewing police officers that she had been convicted of a drink driving offence in the name of Hannah Blake. The transcript of the interview with the police does not make the position entirely clear, but it appears that the appellant claimed that her birth name was Lisa Crawford but that she had been convicted of the driving offence in the name of Hannah Blake. The appellant told the interviewing police that a Hannah Blake was an ex-girlfriend of Kelly and this person then held a current driver's licence so the appellant used her name for the purpose of being prosecuted for a drink driving offence. However, in the end, the questions and answers make it perfectly clear that the appellant had no conviction in either the name of Lisa Crawford or Hannah Blake, apart from the single drink driving matter in the name of the latter.

28. Mr Douglas conceded that the whole of the video interview was admissible evidence. Portions of it, particularly those relating to matters from which the jury might have inferred that the appellant had a prior record, might have been excluded in the exercise of the trial judge's discretion. Mr Douglas made no complaint about any failure on the part of the learned trial judge to exercise his discretion to exclude this evidence, nor about any direction the learned trial judge gave the jury about this evidence. On behalf of the appellant, Mr Douglas confined his complaint to solicitor/counsel's failure to attempt to exclude the evidence.

29. In his affidavit, the appellant's solicitor/counsel said that he considered that the appellant lied about her identity. He said that he thought that such lies were admissible on the basis that they might have been told out of a consciousness of guilt. I must say that for my part it seems that a better assessment of this evidence is that the appellant lied about her identity on a prior occasion by using the name Hannah Blake, although she was of course, indicted by the name of Hannah Blake. The appellant's solicitor/counsel said that he decided not to try and exclude any part of the interview as it was best if the full story was told so the jury would think that any lie that the appellant told was told out of a fear of detection over traffic matters, rather than out of consciousness of guilt of the crimes with which she was being tried. There is considerable merit in this approach. Not all counsel would have adopted it, but the appellant's solicitor/counsel's tactics certainly could not be described as "flagrant incompetence" (R v Birks (supra)). Further, even if the solicitor/counsel's decision amounted to incompetence, (which I do not think it did) in order to succeed, the appellant has to establish that had he tried, the impugned evidence would have been excluded and that the likely result of such exclusion would have been an acquittal. The appellant has fallen far short of establishing that state of affairs.

"1G No reasonable steps were taken during defence counsel's address to:-

(i) Correct errors of fact made by Crown Counsel;

(ii) Adversely comment upon the failure of Crown Counsel to cross examine the Appellant as to -

A Kicking;

B Whether one of the shadows observed by C Hume was the Appellant;

(iii) Comment upon the inconsistencies of evidence as to -

A The assault on the Appellant;

B What was said before the assault;

C What was said during the assault; and

D the irrelevance of the Appellant's rage following the assault.

(iv) To put an alternative proposition to the jury that it could convict Gregory Kelly upon the Complainant's testimony and still not convict the Appellant."

30. There is absolutely no substance in this ground at all. The matters to which Mr Douglas drew attention were all trivial. There would be few occasions when even the most experienced and competent counsel conclude a closing address to a jury and not immediately think of something else that could have been said, or something that would have been better left unsaid. However, for present purposes, it is sufficient to say that it will be a rare case indeed when the closing address for counsel for the defence was such that an appeal court is satisfied that if it had been different there would have been a significant possibility of an acquittal. That is clearly not established in this case. For these reasons I was of the opinion that the appeal should be dismissed.

31. The appellant complained that the incompetence or neglect of counsel who represented her at her trial for burglary and assault, resulting in her conviction for both crimes, has produced a miscarriage of justice.

32. Notwithstanding her complaint that her trial counsel's shortcomings included a failure to attempt to exclude inadmissible evidence, a failure to make submissions as to the scope and adequacy of the trial judge's directions as to her possible involvement as an accessory rather than a principal, and other matters of a like nature, counsel who appeared for her on the appeal did not seek, and specifically declined to seek, any amendment to the notice of appeal to include misdirection or error of the trial judge as a basis for setting aside the jury's verdicts.

33. The single ground of appeal, which alleged a miscarriage of justice, was subdivided into seven paragraphs. I will deal with the merits of each paragraph in turn.

34. Paragraphs (a) and (c) may be taken together. They overlap to a substantial extent:

"(a) No steps were taken by the Appellant's legal advisers to investigate prior to trial or to attempt to establish at trial, evidence from a doctor and ambulance officers who assessed and treated the victim after the alleged assault ('the assault') when:

(i) Such evidence was available; and

(ii) It supported the Appellant's case.

...

(c) No reasonable steps were taken by the Appellant's legal advisers to impugn the victim's credit as to the number, nature and force of blows applied to the victim's head when:

(i) There was inconsistent evidence available at the time of trial from a medical practitioner and ambulance officers; and

(ii) The victim had given several inconsistent accounts in a statutory declaration and depositions taken at committal proceedings."

35. Affidavit evidence was placed before this Court as to the observation and findings of, (i) an ambulance officer who attended the home at which Mr Hume, the victim of the assault, was residing and, (ii) a medical practitioner who examined Mr Hume the following day. It was suggested that their evidence was in conflict with the evidence of Mr Hume, and, had either or both of them been interviewed by the appellant's legal advisers prior to trial, it could, and should, have been ascertained that Mr Hume had exaggerated the severity of the assault upon him and had misstated the number of blows struck during the assault.

36. In my opinion, it is by no means obvious that, had this material been before it, the jury would have reached the conclusion contended for, viz, that the complainant was not to be believed upon his oath as to the nature and extent of the assault, or generally. During the course of his evidence, Mr Hume made it plain that he could not remember the number of blows struck or the full sequential details of the attack upon him.

37. It is difficult to see how the material available from either the ambulance officer or the doctor would have provided ammunition for cross-examination of the complainant of such a quality that neither of these people would have been necessary witnesses. If either or both had been called on behalf of the defence, the appellant would have lost the right to the final address to the jury.

38. Had the evidence of either witness been presented before the jury, it may well have served to reinforce in their minds that this was a sustained and vigorous attack, particularly if each individual injury was explored in sufficient detail to provide the comparison which the appellant claims was necessary to undermine the complainant's credibility.

39. For my part I do not see the evidence from the two new witnesses as necessarily impugning the complainant's evidence. It is a frequently encountered feature of assault cases that the victim may be confused or may over-estimate the number of blows actually delivered when pressed by enthusiastic counsel, but, in the vast majority of such cases, the obvious explanation is that the lack of particularity or accuracy is explicable as being the result of the trauma sustained, rather than deliberate mendacity on the part of the assault victim.

40. I am quite unable to conclude that defence counsel was neglectful of his duty in failing to seek out and interview these witnesses and I am far from persuaded that the availability of this material at the time of the trial would have produced a significant possibility that a reasonable jury would have acquitted the appellant.

"(b) No reasonable steps were taken by the Appellant's legal advisers to investigate prior to trial and to attempt to establish at trial, the absence of forensic investigations carried out by the police on the Appellant's clothes and rings when:

(i) Such evidence was available;

(ii) It supported the Appellant's case."

42. There was no need for defence counsel to take the course suggested in this ground. The real point is, that during the course of the Crown case, no evidence was adduced to show whether or not clothing and rings taken from the appellant exhibited traces of the complainant's blood. It was alleged that she had actually struck him a number of times with her fists, her knee and her foot. She denied any such violence and said she had had no contact with Mr Hume. He bled freely from a number of his injuries to the head. Consequently, it was argued, the absence of any of his blood on the appellant's jewellery or the legs of her jeans would tend to support her version of events and should be seen as being inconsistent with his story. This would obviously be a valid point if evidence positively established that no such bloodstains were discovered, and would be equally valid if the Crown simply called no evidence of bloodstains on the clothing or jewellery. In the latter circumstance the jury could be invited to infer that there was no blood found on the rings or jeans. Defence counsel failed to make the point in his final address but that does not necessarily mean there has been a miscarriage of justice.

43. Defence counsel swore an affidavit and was cross-examined by counsel for the appellant during the hearing of the appeal. He was not cross-examined as to why he failed to present the "absence of blood" argument to the jury. He may have had good reasons for doing so, but none is immediately apparent. Nonetheless, a mere failure to pursue a discrete point does not inexorably indicate incompetence, much less that a miscarriage of justice has resulted within the test defined by the cases. It may be a straw in the wind but it is unlikely to be the one which breaks the prosecution camel's back.

44. An absence of blood does not necessarily lead to an inference of lack of participation in a criminal assault, particularly in a case in which there have been two assailants participating with possibly unequal degrees of effectiveness in producing the totality of the injuries.

"(d) No reasonable steps were taken by the Appellant's legal advisers to impugn the victim and other witnesses' credit as to the lighting conditions that prevailed at the scene of the assault when:

(i) There was inconsistent evidence given as to the light that prevailed at the scene of the assault; and

(ii) If the only light that prevailed at the scene came from the corridor outside the room, the victim could have only seen the silhouette of those who attacked him."

46. Whilst the lighting was plainly not good, there is no basis for concluding that only flat silhouettes of Mr Hume's assailants were visible to him. There was no reasonable basis for impugning the credit of the complainant as to the lighting conditions but, on the assumption that the real complaint of the appellant is that Mr Hume would have been unable to positively or reliably identify her as one of his assailants in the conditions which existed, a brief examination of the evidence is necessary.

47. The first point to make is that the appellant admitted that she was present as an uninvited visitor in the complainant's residence that night. She entered the house, on her evidence, while a fracas was taking place between Mr Hume and Kelly. She said that she entered in an attempt to dissuade Kelly, the male offender, from his violent conduct towards Mr Hume. Mr Hume, of course, denied this. He said that she was very aggressive and violent herself. There was no suggestion, and there could be no suggestion, that he had made an error in claiming that she was there at the relevant time. The issues of importance were whether or not she was there for vengeful or peaceful purposes and whether or not she participated in the violence against Mr Hume. The evidence plainly indicated that she was hostile to Mr Hume and members of his family before the night in question and that she made angry comments about his daughter while she was present at the house. There was strong evidence that she at least abetted Kelly's attack. There is no reason to suppose that Mr Hume was unable to discern whether he was being attacked by more than one person. He said that he was assaulted first by Kelly and later by the appellant. Then he was assaulted by Kelly again. He said, and no one else gave evidence to the contrary, that a younger male person who had accompanied Kelly and the appellant to the house did not assault him. The complainant had met the appellant on a previous occasion and she was the only female to enter the house at the relevant time.

48. In these circumstances, quite apart from the direct evidence which he gave identifying the appellant as one of his assailants, there was material from which a firm inference could be drawn that her participation in the events was of the violent character described by Mr Hume.

49. Even if one were to accept at face value the appellant's statements during the video interview that she could not see a cut on Kelly's finger or blood on the walls in the complainant's room because it was "too dark", this would not be a sufficient basis for doubting the complainant's evidence that the appellant attacked him quite strongly, punching, kneeing and kicking him. The complainant said, and there was no direct contradiction of this, that there was a light on in the hallway and adjacent rooms and the door of his room was open while the assaults upon him were taking place. In these circumstances, counsel for the defence may well have formed the view that it would be seen by the jury that he was clutching at straws if he tried to labour an issue as to identity in his address.

50. In my opinion, there is no substance to this aspect of the appellant's complaint about her counsel.

"(e) No reasonable steps were taken by the Appellant's legal advisers to enquire and investigate prior to trial, or to attempt to establish at trial that the Appellant's knuckles were bruised as a result of a fight that occurred several days before the assault:

(i) It was inconsistent with the instructions given by the Appellant;

(ii) It left the jury without a credible explanation for the bruising of the knuckles of her right hand; and

(iii) It provided explanation as to why the victim would implicate the Appellant in the assault."

52. The appellant, Kelly and defence counsel, all gave evidence on affidavit and were cross-examined before this Court as to this matter. The appellant and Kelly claimed that defence counsel had been informed prior to the trial that she had injured her knuckles in a fight some days before the assault on Mr Hume. Defence counsel denied this. He agreed that he was told about the fight but said that the appellant had not claimed that she received any injury to her hand on that occasion. He said that the appellant told him that she injured her knuckles when she punched a wall in frustration after arriving home with Kelly following the assault on Mr Hume on 4 February 1996. In evidence during the trial, the appellant gave evidence to the same effect. She says that when discussing the matter with defence counsel before trial, he advised her not to mention the earlier fight as it may suggest to the jury that she had a violent disposition. The appellant and Kelly were poor witnesses. I reject their evidence and accept that of defence counsel on all issues where their evidence conflicts. I accept that he was not told that she injured her hand in the earlier fight.

53. The complaint contained in par(e) requires no further discussion. It has no merit.

"(f) No steps were taken by the Appellant's legal advisers to arrange with the Crown or to attempt by application at trial to delete from the Appellant's video taped record of interview all mention of the untruthful use of the name 'Lisa Crawford' and any questions pertaining to the use of that name and the Appellant's true name, when:

(i) It did not demonstrate a consciousness of guilt.

(ii) It put before the jury evidence of bad character by way of explanation;

(iii) It was not relevant to a material fact;

(iv) It undermined the Appellant's credit to the jury; and

(v) In the premises, it had little if any prohibitive weight but was highly prejudicial to the Appellant's case."

55. When interviewed by the police on 5 February 1996, the appellant gave her name as Lisa Maree Crawford. After prolonged questioning by the police, she said that on occasions she had used the name Hannah Maree Blake. What she said could have been taken as an admission that she was Hannah Maree Blake and had used the name of Lisa Maree Crawford to avoid detection and arrest for a charge pending against her under the Road Safety (Alcohol and Drugs) Act 1970.

56. It was submitted that defence counsel should have sought the exclusion of this material for the reasons set out in par(f) as reproduced above. It was suggested that if what she said about her reason for using the false name was true, then her lies could not be used as independent evidence of guilt. The Crown prosecutor at the trial did not seek to use the evidence in that way, although, in my opinion, he could have done so if he had submitted, and the jury had accepted, that her explanation about the Road Safety (Alcohol and Drugs) Act charge was, itself, untrue. Be that as it may, the trial judge did not leave the matter to the jury on the basis that the evidence amounted to independent evidence of guilt and, as already mentioned, no complaint is made of his Honour's directions.

57. The evidence was not gratuitous evidence of bad character. If evidence otherwise relevant and admissible incidentally discloses disreputable conduct, this does not render it inadmissible. The evidence was relevant to the issue of identity and was also capable of having a bearing on the appellant's credibility. The nub of the appellant's complaint appears to be that defence counsel should have sought to have that material relating to the appellant's true identity, which arose not only from the police questioning, but which included material which tended to show that she was known to the police because of personal body markings of which they were aware, excluded.

58. To me it is extraordinary that this ground of appeal should be pursued. Surely the substantive complaint must be that the relevant evidence was erroneously admitted and that this error vitiated the trial. In my opinion, there is no reason to conclude that the evidence would have been excluded in the trial judge's discretion if such an objection had been raised. Counsel for the appellant placed before us an edited version of the transcript of the interview. The editing suggested by counsel for the appellant would not necessarily have been accepted by the prosecution or the trial judge because certain anomalies would have been apparent to the jury if they had seen the material in that form. In any event, it is difficult to see how the appellant could have avoided questions concerning her untruthfulness to the police about her identity when she was cross-examined at the trial. Defence counsel may well have seen merit in having the whole issue being placed before the jury from the outset so that the material did not appear to have been extracted reluctantly from his client during the concluding stages of the trial. Getting a troublesome issue like this "out in the open" early in the trial is sometimes a sensible tactic.

"1G No reasonable steps were taken during defence counsel's address to:-

(i) Correct errors of fact made by Crown Counsel;

(ii) Adversely comment upon the failure of Crown Counsel to cross examine the Appellant as to -

A Kicking;

B Whether one of the shadows observed by C Hume was the Appellant;

(iii) Comment upon the inconsistencies of evidence as to -

A The assault on the Appellant;

B What was said before the assault;

C What was said during the assault; and

D the irrelevance of the Appellant's rage following the assault.

(iv) To put an alternative proposition to the jury that it could convict Gregory Kelly upon the Complainant's testimony and still not convict the Appellant."

60. This omnibus complaint was made by way of amendment on the first day of the appeal. It deserves short shrift despite its wide embrace. I will deal with each issue raised.

1G(i) The alleged errors of fact by Crown counsel were minor and were capable of discernment by the jury without being laboured by defence counsel.

1G(ii)A and B The fallacy involved in these complaints was adequately exposed in my dialogue with counsel for the appellant during the hearing of the appeal and need not be repeated.

1G(iii) A - D Defence counsel may have made these points during his address had be wished and, in large measure, he did so. But different counsel have different styles. Some do not believe in labouring points tediously when they have already been made effectively during cross-examination. Some very successful defence counsel are prepared to leave some points to the unaided recollection or imagination of the jury.

61. A spirited defence was afforded to the appellant. That it did not succeed does not mean it was incompetent. Defence counsel concentrated on relevant issues and I assess his performance as being very sound. I think it is a great pity that his professional competence has been attacked in this way. Paragraph 1G(iii)D should receive an individual mention. This point appears to be based on the proposition that evidence that the appellant smashed some flower arrangements belonging to the complainant in the hallway of his home as she left in a bad temper following the assaults, could not be used as a basis for finding her guilty as an abettor. This proposition is not necessarily in accordance with law (see Hutt & Ors v R 21/1989, judgment of Underwood J at 11 et seq). Behaviour after an event may, in certain circumstances, illuminate conduct at the relevant time and infuse it with a character which otherwise may only have been apparent from a process of inference.

62. The evidence now in question did not stand alone. There was plenty of other evidence that the appellant was acting in concert with Kelly. I can see no reasonable possibility that the jury may have used the smashing of the flower arrangements as a discrete basis for convicting the appellant as an abettor. In any event, as already pointed out, error on the part of the trial judge in failing to direct or misdirecting the jury on the issue has not been alleged.

1G(iv) Defence counsel urged the jury to consider the case against each alleged offender separately. He was not obliged to put a submission in the form now suggested in ground 1G(iv).

63. The principles upon which the Court acts where a complaint of miscarriage of justice has been made, based upon misconduct, negligence, or incompetence of counsel, have been discussed in this Court on several previous occasions and are not in doubt (see Gallagher v R (1985 - [1986] HCA 26; 1986) 160 CLR 392, Philpott v R A31/1996, unreported judgment of Tasmanian Court of Criminal Appeal and Austin v R A88/1996, unreported judgment of Tasmanian Court of Criminal Appeal). R v Scott (1996) 137 ALR 347 is a recent decision of the South Australian Court of Criminal Appeal in which a consistent approach is evident.

64. In Philpott's case at 3 of his judgment, Zeeman J said:

"Counsel is entitled to conduct a case as counsel considers it proper, in some circumstances even if that involves acting contrary to the wishes or instructions of the client. It would be entirely inconsistent with the role of counsel as an officer of the court for counsel to be required to take a particular step or course merely because of instructions to that effect. Sometimes doing so might involve impropriety. In other cases, whilst no impropriety would be involved, the taking of such a step clearly would be inimical to the client's interests. Ultimately, counsel has the responsibility for the conduct of the trial. As was said by Mason CJ in Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 556:

'In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment ...'

This appeal may be determined by reference to a consideration of whether a miscarriage of justice occurred at the trial of the appellant as a result of the omission to call Smith as a witness, regardless of what led to that omission. If it cannot be said that there has been such a miscarriage, whatever the reason for the omission, the appeal must fail. In the event of such a conclusion, an examination of the reasons as to why Smith was not called becomes unnecessary.

Counsel for the appellant accepted the relevant principles to be those which were expressed by Gleeson J in R v Birks (1990) 19 NSWLR 677 at 685 in the following terms:

'1 A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2 As a general rule an accused person 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 involve errors of judgment or even negligence.

3 However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention'."

65. Underwood J, in Austin's case, said this at 5:

"It is settled law in Australia that the categories of circumstances giving rise to a miscarriage of justice are not closed. See Wyatt v R (1990 - [1991] FCA 60; 1991) 99 ALR 490 at 493; Re Knowles [1984] VicRp 67; [1984] VR 751 at 760 - 761; Jago v District Court of New South Wales & Ors (1989 - [1989] HCA 46; 1990) 168 CLR 23 at 57.

It is also settled law that, generally speaking, an accused person is bound by the way the trial is conducted by counsel on his or her behalf, even if that conduct involves incompetence or decisions made without, or contrary to, the instructions of the accused. See R v Birks (1990) 19 NSWLR 677 at 684 - 685; Ignjatic v R (1993) 68 A Crim R 333 at 336 - 337; Philpott v R A31/1996.

Where it is claimed that by reason of error of counsel, certain evidence was not led at the trial, a miscarriage of justice will be established only if it is shown that there is a significant possibility that such evidence, when considered in combination with the other evidence led at the trial, would have resulted in a not guilty verdict. This question subsumes the related question that has to be considered, viz, the credibility of the evidence."

66. I respectfully endorse the views of both Zeeman and Underwood JJ. The appellant has failed to make out any of the grounds of her appeal. For these reasons I joined in the order made by the Court on 19 March 1997 dismissing the appeal.