Criminal law and procedure - Appeal - Miscarriage of justice - Criminal Appeals Act 2004 (WA), s 30(3) and s 30(4) - Competence of trial counsel - Advice as to whether defendant/appellant should give evidence - Alleged failure to take proper instructions from client - Alleged inadequate cross­examination of a critical witness in support of the prosecution case - Alleged failure to object to inadmissible prejudicial material contained in pre­recorded evidence of the complainant

Criminal Appeals Act 2004 (WA), s 30(3), s 30(4)

AD v The State of Western Australia [No 2] [2007] WASCA 207

Ali v The Queen [2005] HCA 8

Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232

Clee v R [2009] NSWCCA 18

Mouroufas v The Queen [2007] NSWCCA 58

Nudd v The Queen [2006] HCA 9

R v Birks (1990) 19 NSWLR 677

R v The State of Western Australia [2008] WASCA 127

Re Knowles [1984] VicRp 67; [1984] VR 751

Rinaldi v The State of Western Australia [2007] WASCA 53

Rolfe v The Queen [2007] NSWCCA 155

Seymour v The Queen [2006] NSWCCA 206

Steve v The Queen [2008] NSWCCA 231

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

1 MARTIN CJ: The appellant appeals from his conviction following a trial before judge and jury on 1 count of indecently dealing with a child under the age of 13 years (Criminal Code (WA), s 320(4)). The sole ground of appeal is an allegation that there was a miscarriage of justice by reason of the incompetent conduct of the trial by counsel who appeared on behalf of the appellant.

2 The indictment alleged that on or about 9 July 2006 the appellant indecently dealt with a child under the age of 13 years (who I shall call C) by touching her vagina. The offence was alleged to have occurred in a farmhouse situated in rural Western Australia.

3 The evidence of the complainant was pre-recorded at a hearing held before a judge of the District Court (who was not the trial judge) on 9 March 2007. During her evidence she gave her birth date. From this date it can be calculated that she was 11 at the time of the alleged offence, and had just turned 12 at the time she gave evidence.

4 In her evidence the complainant affirmed the truth of the statements she had made in a recorded interview with police officers on 13 July 2006. During the course of that interview she stated that a few days before 9 July 2006, she had travelled with her younger siblings to stay with her sister (who I will call BC). BC was then 23 years of age and was living with the appellant at the farmhouse in which the offence allegedly occurred. BC and the appellant had been in a relationship for some months, which had resulted in BC's pregnancy. BC had a child aged 2 from a previous relationship.

5 The complainant stated in her recorded interview with the police that on the evening of the Sunday prior to the interview, it had been agreed that she would sleep in the bed occupied by BC and the appellant. No explanation was given in the recorded interview as to why C was to sleep in that bed on that particular night. However, during the pre-recording of her evidence, C explained that she had asked BC if she could sleep in BC's bed that night as she felt sick.

6 During the recorded interview with police C said that during the night BC left the bed to sleep elsewhere. C stated that later in the night she woke up to find the appellant had inserted his hand into her pyjama pants and was feeling her 'private parts'. She further stated that she pushed him away, after which he tried to hug her, and then she left the bed and went to where BC was sleeping, where she spent the rest of the night.

7 C was asked by the police why BC had taken her home on Monday, to which C answered that on the Monday morning she told BC that she was upset and wanted to return home. As a result, BC took her and their siblings back to the complainant's home later in the day, where the complainant told her mother what had occurred.

8 When asked by the police about BC's reaction when she was told (by her mother) what had happened, the complainant replied:

Um, she just started crying and said that um, '[the appellant] said this. Oh, yuck, oh, that's disgusting when they said about that little girl in Perth' and [BC] said, 'and he's done it' kind of.

Further, also during the police interview, after being asked where her younger siblings had slept on the night in question, she replied:

And [BC] keeps worrying about, um, if they --- he's done anything to them.

9 At the pre-recording of her evidence the complainant was cross-examined by counsel on behalf of the appellant. He put to the complainant that no touching had taken place, and that she had simply left the bed in order to be with her sister. In answer to this the complainant stated that 'yes, he [the appellant] did' touch her.

10 The appellant's trial commenced on 8 October 2007. However, after the jury was empanelled, the trial was adjourned because a trial which had been scheduled to conclude the previous week had run over.

11 The trial resumed on 9 October 2007. Counsel for the State opened the case by referring to the facts which were alleged against the appellant, and the evidence which would be led to establish those facts. She advised that evidence would be led from a witness (who I shall call WT) who was acquainted with both the appellant and BC. Counsel for the State further advised the jury that WT's evidence would be to the effect that in the days following the alleged offence, after BC had returned to the home of her parents with her siblings, both the appellant and WT had attempted to contact her, and had been in regular contact with each other. Counsel for the State opened on the basis that WT's evidence would be to the effect that during the course of one of those conversations between the appellant and WT, the appellant said to her statements such as: 'What would happen if I put my hand down [C's] pants in my sleep? Would [BC] take me back?' (ts 50). In considering the relevance of such evidence, counsel for the State opened on the basis that the relevance of this evidence was that it amounted to an admission by the appellant, because it showed that he was well aware of what had occurred during the night in question.

12 Counsel for the appellant made no opening address.

13 The complainant's recorded interview with the police was then played to the jury, followed by her pre-recorded evidence.

14 After the luncheon adjournment, BC was called. BC gave evidence of her relationship with the appellant and of the visit from her siblings. She confirmed in evidence that on the relevant Sunday evening, she, the appellant and the complainant had gone to sleep in the same bed. However, at about midnight she left the bed because it was too crowded. She further confirmed that when she awoke the following morning, the complainant was asleep in the room to which she had moved.

15 Her evidence was to the effect that during the Monday morning, the complainant was upset and crying. She arranged for the complainant to telephone their mother, after which, in response to her query as to what was wrong, the complainant replied to the effect that the appellant had hugged her. BC then arranged to take the complainant and their siblings back to their mother's place. When they arrived at their mother's place, BC's evidence was that their mother told C 'to go with her', then C told their mother what had happened and then their mother told BC what C had said.

16 After their mother told BC what C had told her, BC did speak to the appellant. BC spoke to the appellant by telephone on the Monday evening. She talked to the appellant 'for a little bit' and then said she 'had a headache' and had to go.

17 During her evidence-in-chief, BC denied advising the appellant, during their telephone calls, of anything that the complainant had said. However, in cross-examination, she was more equivocal, and conceded that she may have said to the appellant something to the effect that her parents would understand if he had just hugged the complainant in his sleep.

18 The complainant's mother then gave evidence. Her evidence was to the effect that during the course of a telephone conversation with the complainant during the Monday morning, the complainant said that the appellant 'had cuddled her'. However, after the complainant had returned home, later that day, the complainant told her mother that the appellant had touched her private parts.

19 The jury were then shown a recorded interview of the appellant by police. During the course of the interview the appellant confirmed the sleeping arrangements that had been made on the night in question. He denied that he had placed his hand down the complainant's pyjama pants at any time, but accepted that he may have made inadvertent physical contact with her during his sleep.

20 The appellant told the police that during the course of a telephone conversation with BC on the Monday morning, when BC advised the appellant that she wanted to use his car to return her siblings to their parents, BC said something to the effect of 'I think you might've done something to [C]'. The appellant also told police that BC had said to him something to the effect that he 'might have done something to [C] while she was asleep or while he was asleep'.

21 The appellant was asked about a telephone conversation which he had with WT:

Q: Do you recall saying to [WT] the words to the effect, um, 'Do you think [BC] will come back to me if I've done something to [C]'?

A: Oh, on Tuesday I did. ...

22 After the record of interview with police had been played to the jury, WT was called to give evidence. Her evidence was to the effect that in the course of the Monday following the alleged incident she had unsuccessfully attempted to speak to BC by telephone even though she had tried to call BC numerous times. She had spoken to the appellant as she had tried to call BC at the farmhouse but the appellant had answered. WT had a number of conversations with the appellant as when she could not contact BC she 'kept calling the house phone, and talking to [the appellant]', and also called the appellant's mobile phone. Her evidence was that on Tuesday, in the course of a telephone conversation with the appellant, he said to her:

I think something's happened. I think I've done something to [C]. What if I'd put my hands down [C's] pants? Do you think [BC] would take me back?

23 WT was cross-examined by counsel for the appellant. The full extent of the cross-examination on her evidence of the alleged conversation with the appellant was as follows:

What I put to you is that [the appellant] didn't say anything to you about hands down [C's] pants prior to the time he was charged. Isn't that right?---Yes, it was prior to the time he was charged.

I put it to you that that's not true?---He said to me, 'What if I've put my hands down [C's] pants? Do you think [BC] would still take me back?'

Okay, but I put it to you that that's not true, that that was said to you sometime after he was charged and was aware of the offence?---No, because I hadn't spoken to [the appellant]. I spoke to him once after he was charged, and that's the phone call that I've just told you about.

The reference to the telephone call following the appellant being charged was a reference to evidence to the effect that there was a brief conversation between the appellant and WT after he had sent her a text message stating that he had been charged with something to do with C, in the course of which he enquired of WT as to whether she had made a statement to the police. The cross-examination concluded:

From the answers that you have given, you're talking about [the appellant] saying, 'If. What if?' Is it your evidence that he was paraphrasing propositions that you say he made with the words, 'If,' or, 'What if'?---Yes.

Okay, and at no time did he make any admission to you that he had done anything?---No, he just kept saying, 'What if,' and, 'If.' 'What if I've done something to [C]?'

And he never said, 'I've done something terrible to [C],' and gone into any details. That never happened, did it?---At one point he did say, 'I must've done something to [C].'

I won't take that any further.

24 Upon the resumption of the trial the following day, the State closed its case and counsel for the appellant advised that no evidence would be called for the defence.

25 Counsel for the State then gave her closing address. She referred to the evidence of WT at the completion of her address in the following terms:

So she and the accused had some conversations, and she said, 'Well, the accused said to me, "What if I've done something wrong? What if I've done something to [C] in my sleep?"' She also gave evidence that he said to her, 'What would happen if I had put my hand down [C's] pants in my sleep? Would [BC] take me back?'

Ladies and gentlemen, that is interesting because you might recall that [WT] gave evidence to the effect that at no point in time had she told the accused that there were any allegations against him, and she herself didn't really know any details anyway. So at the point that the accused said to [WT], 'What would happen if I had put my hand down [C's] pants in my sleep? Would [BC] take me back?' at that point in time nobody had told the accused what [C] had said, not [BC], not [C's] mother, not [WT], and not the police. The only thing that had been said to the accused by [BC] was that [C] said that he hugged her during that night, nothing about his hand down her pants or anything like that.

You might wonder, 'Why would he say that?' If he was worried about doing something a bit more than just hugging [C], why would he specifically mention his hand down her pants? There are a lot of things somebody might do inadvertently in their sleep. Why mention the hands down her pants?

Ladies and gentlemen, I suggest to you that there is only one reason why he would suggest that at a point in time, when nobody had accused him of putting his hand down her pants, the only reason that he would suggest that is because he knew that putting his hands down [C's] pants was exactly what he had done during that night, and that was the reason for [C] being upset. Thank you for your attention.

26 During his address to the jury, counsel for the appellant reminded the jury that he had put to WT that the conversation to which she had referred took place after the appellant had been charged, by which time the appellant was aware of the allegations against him. He also referred to WT's evidence to the effect that the appellant's statements had been qualified by the words 'what if' or 'if'.

27 The trial judge then addressed the jury. During her address to the jury the trial judge expressly directed the jury to disregard those portions of the complainant's recorded interview with police in which reference was made to the possibility of the appellant interfering with other children, including the child referred to in Perth (see [8] above). After their deliberations, the jury returned a verdict of guilty.

28 An affidavit sworn by the appellant was admitted as evidence in the appeal. The appellant also gave oral evidence at the appeal.

29 In his affidavit the appellant repeats the statements he made to the police to the effect that in the course of the Monday morning following the alleged incident, BC told him that C was upset and wanted to return to her mother, and that BC went on to observe that maybe he had done something to C, like hugging her. He also deposes that in the course of a telephone conversation on the Monday evening, he was told by BC that C had told BC that she was upset because he (the appellant) had hugged her.

30 The appellant also asserts in his affidavit that during the course of Tuesday evening, he spoke to WT and advised her that BC had told him that C might be upset because she said that he had hugged her. His evidence is also to the effect that the following day (Wednesday), he had a conversation with WT, in which he said '[d]o you think [BC] would come back to me if I had done something to [C]?'.

31 On the Thursday following the alleged incident the appellant asserted that he travelled to the town where BC was staying with her parents, at her request. Upon arrival, he was requested by police to accompany them to the police station, where he was interviewed and arrested. He further states that following his arrest he had a telephone conversation with WT in which he advised her that he had been charged for 'putting my hands down [C's] pants'.

32 The appellant states that he met the legal practitioner who became his counsel when he was acting as duty lawyer at the time of the appellant's first court appearance (Magistrates Court). On that day, the appellant went to the practitioner's office where the practitioner asked him briefly about his history and took some notes.

33 The appellant did not see the practitioner again until his first appearance in the District Court. At this time, the appellant states, he and the practitioner did not discuss facts of the case. A plea of not guilty was entered and the matter was sent to trial.

34 After the first District Court appearance, the appellant had a further conference with the practitioner in which the practitioner played to him portions of the appellant's recorded interview with police. During the course of that conference the appellant gave the practitioner more detailed instructions. According to the appellant, the practitioner told him that he had received witness statements from the police and that he would like the appellant to read through them and tell him anything that was not correct, which the appellant then did. However, he was not given any statement that had been provided by WT.

35 In the affidavit, the appellant further deposes that during the course of this conference there was a discussion about whether or not the appellant would give evidence at trial. He says that the practitioner gave advice to the effect that based on his observation of the video record of interview with police, he had formed the view that the appellant might perform poorly in the witness box. The conference concluded on the basis that the question of whether or not the appellant would give evidence at trial would be left open to be decided at the trial.

36 The appellant and his father had a brief conference with the practitioner prior to the pre-recording of the complainant's evidence. In the course of that conference the practitioner advised the appellant that he had been given a statement made by WT. He read out parts of the statement from one page quickly. The practitioner then asked the appellant if he had said to WT 'what if I had put my hand down [C's] pants while I was asleep'. The appellant replied that he had spoken to WT after he had been interviewed by the police and that he had told WT that he had been charged for 'putting my hands down [C's] pants'. According to the appellant, this conference occupied about five minutes and WT's evidence was not discussed in detail. He was not given a copy of the written statement prepared by WT, nor did the practitioner tell him when WT said that the appellant had told her 'what if I had put my hand down [C's] pants while I was asleep'.

37 Although in the affidavit sworn by the appellant he asserts that he did not confer again with the practitioner prior to the commencement of the trial, in his oral evidence at the appeal the appellant corrected that assertion when he said he had met with the practitioner, without appointment, at which time he enquired of the practitioner whether he needed to see him again before the trial. The appellant was told that there was no need for him to meet the practitioner again.

38 In his affidavit the appellant states that he did not inform the practitioner about the telephone conversations he had with WT on the Tuesday following the alleged incident, because he was not asked about them.

39 The appellant deposes that during the lunchbreak on the second day, he was advised by the practitioner that 'I think we have got this one in the sack and you will not be needed to go on'. The appellant replied with a query as to whether he needed to give evidence. The practitioner responded that if the appellant felt he needed to give evidence, he was welcome to, but that the practitioner's advice was that he should not give evidence.

40 The appellant confirms in his affidavit that after WT gave her evidence, the practitioner did not seek any further instructions from him in relation to that evidence before cross-examination. Further, according to the appellant there was no further conversation between him and the practitioner following the completion of the evidence on that day, or prior to the commencement of the trial the following day, when the practitioner announced that the appellant would not be calling any evidence.

41 During the course of the appellant's oral evidence at the appeal he stated that if he had been advised of the significance of the evidence given by WT as to the conversation which she alleged he had with her on the Tuesday, and which was uncontradicted, he would have elected to give evidence. He further confirmed that he did not at any time say to WT, in one conversation 'what if I put my hand down [C's] pants, do you think [BC] would still take me back?'. He denied ever having given instructions to the practitioner to the effect that he had made such a statement.

42 An affidavit was sworn by the practitioner and tendered in evidence. The practitioner also gave oral evidence at the appeal.

43 In the affidavit the practitioner confirms that he gave advice to the appellant to the effect that he should not give evidence. He formed the view that it would be preferable for the appellant to not give evidence because of his view that the appellant had made no material admissions in his recorded interview with the police, and that by exposing himself to cross-examination, the appellant would be taking an unnecessary risk. In the affidavit the practitioner also asserts that he received instructions from the appellant to the effect that the conversations with WT occurred some time after he was charged and had become aware of the allegations against him.

44 During the practitioner's oral evidence he produced the papers which he had used for the purposes of the trial. The only document recording the instructions he had received from the appellant was amongst those papers. It is a five page hand written document. It contains brief references to the appellant's denial of the allegations and some short references to his family history. It does not take the form of a proof of evidence.

45 Also during his oral testimony, the practitioner stated that before the evidence of the complainant was pre-recorded he had advised the appellant not to give evidence. He confirmed that he had not revised that advice, or indeed discussed the matter at any length with the appellant on any subsequent occasion, and in particular, at no time after WT had given her evidence.

46 The practitioner accepted that he was instructed by the appellant that the only discussion he had with WT about putting his hands down C's pants was after he had been charged by police. He also accepted that the appellant acknowledged in his recorded interview with police that he had spoken to WT before he had been charged. He stated that he had taken instructions from the appellant on that subject, and that he did not dispute that acknowledgement.

47 Appeals against conviction based upon an assertion that the trial miscarried because of the incompetence of counsel appear to be increasing in frequency. In this State see, recently, Rinaldi v The State of Western Australia [2007] WASCA 53, AD v The State of Western Australia [No 2] [2007] WASCA 207 and R v The State of Western Australia [2008] WASCA 127; in New South Wales see Seymour v The Queen [2006] NSWCCA 206, Mouroufas v The Queen [2007] NSWCCA 58, Rolfe v The Queen [2007] NSWCCA 155 and Steve v The Queen [2008] NSWCCA 231; and, at the level of the High Court see TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, Ali v The Queen [2005] HCA 8 and Nudd v The Queen [2006] HCA 9.

48 In the face of the apparently increasing enthusiasm for challenging convictions by reference to the incompetence of counsel, it is important to emphasise that these cases make it clear that an appellate court will necessarily be constrained in the extent to which it can allow an appeal brought in reliance upon the incompetence of counsel. I will refer to the principles established in this area shortly. In the meantime, it is sufficient to note that despite the frequency with which appeals are brought in reliance upon the incompetence of counsel, there are only a limited number of cases in which such appeals have been upheld: see for example Re Knowles [1984] VicRp 67; [1984] VR 751; R v Birks (1990) 19 NSWLR 677; and Steve v The Queen.

49 The first point to be made in this area is that incompetence of counsel is not, of itself, a ground of appeal. Rather, the relevant ground of appeal is that there was a miscarriage of justice. This is because of the form of the legislation dealing with criminal appeals in most Australian jurisdiction, including in Western Australia. In this State, s 30(3)(c) of the Criminal Appeals Act 2004 (WA) provides that the Court of Appeal must allow an appeal if in its opinion 'there was a miscarriage of justice'. Section 30(4) goes on to provide that the Court of Appeal may dismiss an appeal if it considers that 'no substantial miscarriage of justice has occurred'. Because of the judicial gloss which has been put upon the meanings to be given to the expressions 'miscarriage of justice' and 'substantial miscarriage of justice' in each of these subsections, there may be an interesting question as to whether there is any material difference between the test posed by those two expressions: see the observations in TKWJ v The Queen [63] ff (McHugh J). That question may be left to another occasion, as it is not germane to the issues in this appeal. However, there is at least one difference between the operation of s 30(3) and the operation of the proviso contained in s 30(4). When an appeal is brought on the ground of a miscarriage of justice, the appellant carries the burden of establishing that a miscarriage occurred. On the other hand, if the respondent to a criminal appeal relies upon the proviso, it carries the burden of establishing that no substantial miscarriage of justice has occurred: see TKWJ v The Queen [63] (McHugh J).

50 There are a number of significant considerations which flow from the observation that the relevant ground of appeal is that of miscarriage of justice. The first is that the focus of enquiry must be upon the consequences of the alleged incompetence, and the extent to which it caused or contributed to a miscarriage of justice, rather than upon the cause or nature of the incompetence alleged: see TKWJ v The Queen [13], [16] - [17], [79], [83], [107]; Ali v The Queen [7], [12], [18], [38], [100]; Nudd v The Queen [2], [8] - [12], [24] - [25], [62], [64] - [68], [81], [151], [157]. So, the question will not ordinarily turn upon the adjectivial characterisation of the degree of incompetence established as 'flagrant' or, (with some exceptions to which I will refer) to the reasons for the incompetent act or omission: Nudd v The Queen [8], [27].

51 The cases also emphasise the inherent constraints upon a conclusion that a miscarriage of justice has occurred by reason of the incompetence of counsel. In Australia, criminal trials are conducted on an adversarial basis. In that context, forensic and strategic decisions are necessarily made many times in the course of every trial by counsel to whom the parties entrust their cases, and by whose actions they are bound: see TKWJ v The Queen [8]. Decisions made in that context by counsel as to the evidence to be called, or not called, the line to be taken in cross-examination, or as to whether evidence should be objected to or admitted without objection will commonly be made for a myriad of reasons that will not ordinarily be reviewable by an appellate court. Sometimes those decisions might be regretted, and hindsight might show that they were unwise or imprudent. However, it is not ordinarily the province of appellate courts to review the wisdom or prudence of trial counsel: Nudd v The Queen [8]. It is only in exceptional or extreme cases where the acts or omissions of counsel can be said to have caused a miscarriage of justice by depriving an accused person of a fair trial (which is the inherent assumption upon which justice depends), that an appellate court will be justified in intervening.

52 The emphasis which the previous cases place on the focus being upon the question of miscarriage of justice also explains why it is generally established that if the conduct of counsel is explicable on the basis that it would or could have resulted in forensic advantage, it will be difficult, but not impossible, to establish that there was a miscarriage of justice merely because the apprehended advantage was not, in the result, derived: see for example, TKWJ v The Queen [25] - [28], [33], [82]; Nudd v The Queen [10], [31]; and Steve v The Queen [46], [56]. However, if there is a gross disproportion between the possibility of forensic advantage, and the forensic detriment occasioned by the relevant act or omission, the court may nevertheless conclude that there has been a miscarriage of justice: TKWJ v The Queen [28].

53 The emphasis upon miscarriage of justice also explains why, generally speaking, the assessment of the alleged act or omission is undertaken objectively, and without reference to the subjective views or reasoning of the particular trial counsel concerned: TKWJ v The Queen [107]; Nudd v The Queen [9], [27]. However, the exception to this general principle derives from the principle that the conduct of the trial by counsel will be assumed to have been the result of an informed and deliberate decision unless it is established otherwise. So, if an accused person is advised that he has no right or entitlement to give evidence, his failure to give evidence could not be said to be the consequence of an informed and deliberate decision on his part: Nudd v The Queen [17].

54 In this context, the reference to an 'informed' decision does not provide a charter for an appellate court to itself revisit and review the precise terms of advice given by counsel to clients in the often difficult circumstances of a hotly contested criminal trial. However, there have been cases (and Re Knowles is one) in which the giving of advice which was erroneous at law has resulted in the conclusion that there was a miscarriage of justice. On the other hand, it is an every day occurrence for counsel, or a trial judge, to take a view of the law with which an appellate court disagrees. If such errors on the part of counsel routinely provided a basis for a conclusion that there was a miscarriage of justice, the trial process would lack finality and certainty. It follows that, when the miscarriage is said to result from trial counsel having formed an erroneous view of the law, questions of degree will necessarily be significant.

55 Another consideration which flows from the emphasis placed upon the relevant ground being that of miscarriage of justice, is that the assessment of whether or not there has been such a miscarriage will be made in the context of the trial as a whole, having regard to the relative strengths and weaknesses of the cases of each party, and the cumulative effect of any defects, irregularities or omissions, rather than the effect of each such alleged irregularity viewed in isolation. Nor are these matters to be weighed independently of each other. So, even if the prosecution case was very strong, if the incompetence of counsel has led to a fundamental departure from the ordinary requirements of a fair trial, the appeal may nevertheless be allowed: Nudd v The Queen [17].

56 The appellant supplied particulars in support of the allegation that the incompetence of his counsel was such as to produce a miscarriage of justice. There were three particulars - that the appellant relied on the advice of counsel that there was no need to give evidence; that there had been a failure on the part of counsel to take proper instructions from the appellant (and that as a consequence counsel failed to adequately cross-examine WT or to adequately put to WT the appellant's position in relation to her assertions); and that there had been a failure on the part of counsel to object to inadmissible prejudicial material contained in the police interview of the complainant.

57 The latter particular is quite separate and discreet from the other issues and may be dealt with quite shortly. It is clear that objection should have been taken to the portions of the complainant's recorded interview with the police in which she made reference to oblique assertions to the effect that the appellant may have been involved in misconduct with other children (see [8] above), in the context of the very lengthy video tapes which were played to the jury. However, given the lack of any reference to those statements by either counsel, and the clear and unequivocal direction of the trial judge to the effect that the jury should place no reliance upon that evidence (see [27] above), it could not be concluded that this oversight either viewed in isolation or in conjunction with other grounds, could make any material contribution to the resolution of the question of whether there has been a miscarriage of justice.

58 The other two particulars relied upon by the appellant are interrelated, because they both turn upon the significance of the evidence given by WT of the telephone conversation that she says she had with the appellant on the Tuesday, in which the appellant allegedly made statements to her as to the detail of the alleged offence which he could not have known unless he had committed it (see [22] above). The allegation of failure to advise the appellant to give evidence rests upon an assertion that his counsel failed to appreciate and advise him upon the significance of WT's evidence in this respect. The complaint of inadequate cross-examination of WT is also based upon the assertion that counsel failed to appreciate both the significance of the evidence given by WT, or the instructions which he had received from the appellant.

59 Ordinarily, by reason of the general principles to which I have referred, it will be extremely difficult to make out a case of miscarriage of justice based upon advice given to an accused person relating to the giving of evidence which leaves the decision on that subject to the accused (as it must be). That is because there will always be an obvious forensic advantage to be gained from failing to give evidence, in the lack of exposure to cross-examination. That forensic advantage was no less in this case than in any other. Accordingly, unless there was more to it, it would be extremely difficult to see how the appellant could establish that there was a miscarriage of justice merely because he acted upon advice to the effect that, while he could give evidence if he wanted to, it would be desirable if he did not.

60 However, in this case there is more to it than that. On the evidence given in the appeal, it appears to me to be clear that the practitioner misunderstood his instructions, and the evidence, relating to the conversations between the appellant and WT. Having seen the police record of interview with the appellant, the practitioner must have known, and conceded in evidence on the appeal that he did know, that the appellant stated that he had discussed with WT, in very general terms, the possibility of him having misconducted himself with C prior to his interview with police (see [21] above). The appellant has consistently conceded that, in that context, before being interviewed by police he had posed to WT a rhetorical question as to the likelihood of BC returning to him. However, it was equally clear from the police record of interview, and is now confirmed by the evidence given by the appellant on appeal, that he had a ready explanation for that conversation, based on the general discussions which he had had with BC by telephone during the course of the Monday.

61 However, it is clear that the practitioner conflated the evidence which he had seen, and the instructions which he had received, as to the various conversations between the appellant and WT, and on the basis of that conflation, put to WT in cross-examination that the conversation of which she had given evidence took place after the appellant had been charged. That proposition was repeated to the jury in the closing address of counsel for the appellant. However, it was a proposition that was always doomed to fail and which could never have been accepted by the jury, because they had seen the record of police interview in which the appellant acknowledged that he had a conversation with WT in which he rhetorically enquired as to whether BC might take him back. Obviously that conversation had taken place prior to the police interview of the appellant.

62 The significance of the detail provided by the appellant in the alleged conversation with WT relating to putting his hand down the pants of the complainant was made clear in the opening address of counsel for the State, and was obviously a vital feature of the closing address of counsel for the State. Counsel for the State closed strongly upon it. The significance of that detail however, appears to have been entirely overlooked or ignored by counsel for the appellant.

63 For example, counsel with a full appreciation of the significance of that detail would have appreciated that when the appellant was interviewed by the police on 13 July 2006, a version of his conversation with WT was put to him which was significantly different to that given by WT in her evidence at trial. The version of the conversation with WT put to the appellant by police did not include a reference to any statement to the effect that the appellant had put his hand down the pants of C (see [21] above).

64 WT did not sign a written witness statement until over a month after the appellant's interview by police. In that witness statement, reference is made to a statement by the appellant to her, which includes the details relating to the offence, prior to the appellant being charged by police. However, if that was the fact, and if that had been reported to police, it would be surprising if the details of the conversation had not been put to the appellant by the police. That was an obvious and legitimate area of forensic enquiry which was completely ignored by counsel for the appellant during the conduct of the trial. It does not appear that counsel for the appellant made any requests to attempt to obtain any notes taken by the police when first interviewing WT. Further, counsel for the appellant did not require the interviewing police officers for cross-examination, nor was WT cross-examined on this basis.

65 Further, the instructions given by the appellant to the practitioner were to the effect that, consistently with the statement he had made to police, he had a conversation with WT on the Tuesday, in which he made a very general reference to possible misconduct with C and posed a rhetorical question as the likelihood of BC taking him back, and then a later and quite separate conversation after he had been charged, in which he made a specific reference to the detail of the charge, which he then knew, because it had been put to him by the police. It is quite possible that by the time WT signed her witness statement, a month or so after these conversations, she had herself confused and conflated them. This was another obvious and potentially fertile area for cross-examination. However, because the practitioner himself conflated the instructions he was given on these matters, the line taken in cross-examination served only to reinforce the veracity of the evidence given by WT on this topic.

66 That evidence was of obvious forensic significance, because it was evidence which the jury might use, and very probably did use, as evidence of a statement by the appellant which was corroborative of the evidence of the complainant (in addition to the evidence of recent complaint given by her mother). By reason of the practitioner's failure to comprehend the significance of that evidence, and his misapprehension of the instructions which he had been given, the evidence of WT was not challenged in any effective sense. Although she was cross-examined by the practitioner, as a matter of substance the cross-examination was pointless because, as I have observed, the line taken was bound to reinforce the veracity of her evidence. Viewed as a matter of substance therefore, this is a case in which there has been a constructive failure to cross-examine a critical witness called in support of the State case.

67 Further, the failure of the practitioner to apprehend the significance of the evidence of WT, and of that evidence remaining uncontradicted, when advising the appellant not to give evidence, exacerbates the consequences of the constructive failure to cross-examine. Although it could be said, at one level, that the decision of the appellant not to give evidence was his own deliberate decision, which carried with it an obvious forensic advantage, at another level the decision could hardly be described as informed, when the forensic significance of WT's evidence had not been pointed out to him. Viewed in isolation, that deficiency in advice would be unlikely to lead to the conclusion that there had been a miscarriage of justice. However, viewed cumulatively with a constructive

failure to cross-examine WT, it lends support to the conclusion that, viewed as a whole, there was such a departure from the basic concept of a fair trial in this case as to constitute a miscarriage of justice. That departure lay in the failure to appreciate, and as a consequence to test or rebut in any meaningful way, a component of the State case which the jury were likely to regard as highly significant. While there might have been an apparent forensic advantage to be derived from failing to rebut that evidence by calling the accused to give evidence, the same cannot be said of the line taken in cross-examination and closing address, which had no apparent forensic advantage, and every forensic disadvantage.

68 For these reasons I have come to the conclusion that, viewed as a whole, the conduct of counsel for the appellant led to a miscarriage of justice, and the verdict of the jury should be set aside. A retrial should be ordered.

69 PULLIN JA: This an appeal against conviction. The conviction was of an offence that:

On or about 9 July 2006 ... [the appellant] indecently dealt with [the complainant] a child under the age of 13 years, by touching her vagina.

70 The complainant was 11 years old at the time of the offence. The complainant had an older sister, BC. BC was in a relationship with the appellant and, in July 2006, when the offence occurred, BC and the appellant were living together on a farm where the appellant was working as a farm hand. The appellant and her family lived in another country town, and in July 2006, during the school holidays, BC picked up the complainant and two other younger sisters and drove them to the farm where they planned on staying for a week.

71 On the night when the offence occurred the complainant was not feeling well, so when it was time to go to bed BC told her to go into bed with her. The appellant went to bed and joined them, a little later in the evening. During the evening, BC was feeling uncomfortable and she went to sleep in another room. That left the complainant and the appellant in the bed together.

72 The evidence of the complainant was that the appellant put his hands down her pyjama pants and touched her vagina.

73 In the morning, the complainant was crying and wanted to go home and so the appellant spoke to BC before they left and suggested to BC that the complainant may be upset because he had hugged her during the night.

BC then drove the complainant and her two younger sisters back to their home. The complainant told her mother what had happened and the police were notified. This occurred on Monday 10 July 2006.

74 On the next day, Tuesday, the appellant had a telephone conversation with a friend of BC, who will be designated WT. Later, on 13 July 2006, the police interviewed the appellant and the interview was recorded on video. During the course of the interview, the police asked the following questions and the following answers were given:

Q. Do you recall saying to [WT] the words to the effect, um, 'Do you think [BC] will come back to me if I have done something to [the complainant]'?

A. Oh, on Tuesday I did.

Q. Why did you say that?

A. Cos [BC] said that something's wrong with [the complainant] and she said you -- you might have done something. That's the only reason why I said that ...

75 It is also necessary to note that some of the appellant's answers given to the police during the interview about what happened while he was in bed with the complainant were, if not ambiguous, likely to attract close questioning if he gave evidence and exposed himself to cross-examination. For example, the following questions and answers appear in the transcript of the interview:

Did [BC] speak to you and say ... 'I've spoken to [the complainant] and she's upset with you because you hugged her'?---Yep.

Yep. You remember that, and then you said words to the effect of, 'I would've only done it in my sleep and I wouldn't have done anything else'?---I might of [sic]. I might, I probably did, I don't know.

76 Then a little further on, at page 49 of the transcript:

I was more or less saying, you know, maybe I have done something to her while I was asleep. Maybe that's why she was still upset, because she didn't - - -

Something more than just a hug?---Yeah, that's what I said to her.

Something like putting your hand down her pants?---Putting my hand down her pants.

Feeling her vagina?---Whatever, anything.

Spreading her ...the opening of her vagina apart?---You've gotta be awake to do something like that.

Well, that's ... that's what I'm telling you. You would have to be awake wouldn't you?---Oh, yeah, to spread someone's vagina apart, yeah.

Well, that's exactly what [the complainant has] told us happened?---That's a lot of crap.

Is it?---There's no way I can do that while I'm asleep.

That's what I'm saying?---And I wasn't awake.

Cos you weren't asleep?---I was asleep.

77 A lawyer was retained to act for the appellant at the trial. When the police brief was delivered in full, it was revealed that WT had given to the police a statement which had not been made until August 2006 in which she said that in the telephone conversation she had with the appellant before she was charged he said to her:

I think something's happened. I think I've done something to [the complainant]. What if I put my hands down [the complainant's] pants? Do you think BC would take me back?

78 The significance of that proposed evidence of WT is obvious. If he said that before he was arrested, then it suggested that he knew what the accusation was against him and that he could only know it if he had in fact committed the act. The appellant denied that he had said this before he was arrested. He says in evidence via an affidavit filed in this court that after he had been charged he said in a conversation with WT that he had been charged for putting his hands down the complainant's pants.

79 All of this was well understood by the lawyer. He did not prepare a formal typed statement of the appellant's proposed evidence, but the matter was not complicated and the lawyer met with the appellant several times. He said he made several trips to see the appellant at his home, and had a lengthy meeting with the appellant on a Sunday at the firm's office. The lawyer took notes.

80 It is not in dispute that at some stage before the trial there was the discussion about whether or not the appellant would give evidence. The lawyer's advice was that the appellant should not give evidence.

81 At the trial, the appellant's video-recorded interview was tendered. WT gave evidence by videolink at the trial. During her evidence-in-chief she gave evidence in accordance with her August statement. WT was cross-examined by the appellant's lawyer. The transcript reveals the following:

What I put to you is that [the appellant] didn't say anything to you about hands down [the complainant's] pants prior to the time he was charged. Isn't that right?---Yes, it was prior to the time he was charged.

I put it to you that that's not true?---He said to me, 'What if I've put my hands down [the complainant's] pants? Do you think [BC] would still take me back?

Okay, but I put it to you that that's not true, that that was said to you some time after he was charged and was aware of the offence?---No, because I hadn't spoken to [the appellant]. I spoke to him once after he was charged, and that's the phone call that I've just told you about.

82 After some further questioning, AT's evidence then concluded and the court adjourned until the next morning.

83 During the adjournment, the lawyer again spoke to the appellant about whether he should give evidence. The lawyer recommended that he not give evidence. The appellant agrees that he was told that if he felt the need to give evidence then he was welcome to. The appellant said that he took the advice of his lawyer not to give evidence.

84 At the resumption of the trial the next morning the prosecution case was closed and the appellant's lawyer announced that the appellant would not be giving evidence. The appellant was convicted.

The conduct of the appellant's defence by his counsel was such that the appellant did not have a fair trial and there was a miscarriage of justice.

(a) The Appellant's counsel advised the appellant that there was no need for the Appellant to give evidence, which advice the Appellant accepted and accordingly elected not to give evidence at his trial.

(b) In giving the Appellant the advice referred to in (a) above, the Appellant's counsel failed to advise the Appellant that in not giving evidence there would be no evidence before the jury contradicting evidence given by a prosecution witness, Ms WT ('AT').

(c) AT's evidence was to the effect that the Appellant had made an implied admission to her, in that a couple of days after the alleged incident with the complainant, and before the Appellant had been informed of the Complainant's specific allegation by police, WT stated that the Appellant had said to her:

'What if I had put my hand down [the complainant's] pants in my sleep?

(d) The evidence adduced by the Prosecution was to the effect that the Appellant could not have known of the specific allegation being made by the Complainant against him, namely that he had put his hands down her pants, at the time that he spoke to WT.

(e) The Appellant's instructions to his counsel had at all times been that he did not have a conversation with WT in the terms asserted by her.

(f) AT's uncontradicted evidence was emphasised as a decisive factor by the Prosecution in closing the case to the jury.

(g) The Appellant would have elected to give evidence if he had been advised of the above matters.

87 There was also a particular alleging that 'no adequate proof' was taken, but that alone could not amount to a miscarriage of justice and that aspect must be dismissed. The final particular was a different point, namely a failure to object to certain admissible prejudicial material which had apparently been missed by both counsel. However, there is no basis for that complaint because the trial judge gave a very clear direction to the jury to disregard those portions of the complainant's evidence. It is therefore necessary to return to the main point which is raised.

88 There have been a number of cases which have alleged a miscarriage due to alleged errors made by defence counsel in the conduct of the case. From them it is possible to extract the following propositions:

(a) The inquiry on appeal must be about whether, viewed objectively, an error in the form of an act or omission of counsel has resulted in a miscarriage of justice: Nudd v R [2006] HCA 9; (2006) 225 ALR 161 [9] and [27].

(b) This involves the appellant demonstrating that the error of counsel was a material irregularity and there is a significant possibility that it affected the outcome of the trial: TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 [79] per McHugh J; Ali v R [2005] HCA 8; (2005) 214 ALR 1 [18]; Nudd [24]. Whether there is a 'material irregularity' must be judged in the light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by decisions of counsel: TKWJ [79]. Accordingly, it is not enough to prove merely that decisions were made by counsel without, or contrary to, instructions, or that decisions made involve errors of judgment or even negligence: TKWJ [79].

(c) There will be no material irregularity if there 'could' be a reasonable explanation for the course that was adopted at trial. It is wrong to inquire about why trial counsel did act or not act in a particular way: Ali v R [2005] HCA 8; (2005) 214 ALR 1 [25], Hayne J, Gummow J agreeing. This follows from the fundamental nature of a criminal trial as an adversarial and accusatorial process: Nudd [9] and Ali [25]. As Gleeson CJ said in Nudd [8], an investigation about why matters happened is ordinarily irrelevant and often impractical. It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from the failure of process, it is the process itself that is judged, not the individual performance of the participants in the process.

In the context of the adversarial system of justice, a miscarriage does not occur simply because an apparently rational decision by trial counsel as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible or even probable disadvantage of the accused: TKWJ [16] and Clee v R [2009] NSWCCA 18 [27].

89 As a result of those propositions, it is first necessary to identify what error is alleged. The errors alleged are that the appellant's lawyer wrongly advised the appellant not to give evidence, and then did not to call him in circumstances where WT had given damaging evidence about what the appellant said before he was arrested and which would then remain uncontradicted.

90 In fact, there was evidence before the court in the form of the appellant's video-recorded interview where he was asked what he had said to WT before he was interviewed. He is recorded as agreeing that he said to her, 'Do you think [BC] will come back to me if I have done something to [the complainant]?' That was evidence that the jury could take into account. However, there is no doubt that by not calling the appellant there was no direct oral testimony to counter the evidence of WT that he made the more damaging statement before he was charged. Notwithstanding that, the advice given by the lawyer and his decision not to call the appellant was not an error or irregularity, and did not cause any miscarriage of justice if there was a reasonable explanation for giving that advice.

91 In my opinion, there was a reasonable explanation. In my opinion, competent counsel may have had a concern that the appellant might not fare well in cross-examination about the answers that he gave to the police. Some of those questions and answers appear above. The appellant would have been pressed in cross-examination to explain what he meant when he asked WT whether BC would take him back if he had done 'something' to the complainant. It was open to the lawyer to form the view that the appellant would not fare well in cross-examination and that this would cause more damage to the appellant's prospects of acquittal than leaving WT's evidence uncontradicted. After all, the jury could not reason that merely because they believed WT, that the appellant was guilty. They still had to consider whether there was any reasonable doubt concerning the appellant's guilt. What the police had put to the appellant about what WT had said to him before he was interviewed could have produced such doubt. The lawyer had met with the appellant and could form an assessment about how he would fare in cross-examination. It is not for this court to second-guess that assessment.

92 As there existed reasonable grounds for a concern about the adverse impact of cross-examination on the appellant's prospects of acquittal, then a rational forensic reason existed for not calling the appellant. In those circumstances, it is, in my view, not possible to reach a conclusion that there was any material irregularity or error, and therefore it is not possible to conclude that there was a miscarriage of justice.

93 The appellant submitted that his lawyer confused his instructions about the two conversations that WT had with the appellant. The first was the conversation that he had with her before the police interviewed him. The appellant agreed with what the police said regarding what WT had told them about what the appellant had said to her. The second conversation was a conversation, to the effect of the conversation that WT gave evidence about, but which, according to the appellant, occurred after he was charged. In fact, the appellant's lawyer said, in his evidence to this court, that he was not confused. His evidence on the point, which I accept, was as follows:

So you were aware that [the appellant] had conceded in the video record of interview that he had spoken to [WT] before he had been charged?---I knew - yes.

You knew that?---I knew that.

And you knew he had conceded that he had said to her before he was charged, 'Do you think [BC] would come back to me if I've done something to [the complainant]?' You are aware of that?---Yes.

Did you ask him about that answer that he had given to the police in his video record of interview?---I did.

Is there anything in your notes that deals with that?---Yes, well, he doesn't take issue with the fact that that occurred. He had already seen the video. So we were talking about something that we were both aware of.

94 The lawyer did address in cross-examination the important issue about whether or not the appellant had said, before he was arrested, what WT gave evidence at trial that he had said. The lawyer clearly understood the critical nature of the evidence and clearly understood that this was disputed by the appellant. The transcript reveals the appellant's lawyer cross-examining WT about this and putting it to her that the conversation took place after the appellant was charged.

95 It is true that the lawyer could have done more, for example, by cross-examining WT about when she gave her statement to the police, and to cross-examine the police about when they spoke to WT before interviewing the appellant, to emphasise what WT had told the police, and then in submissions to make the obvious point that WT's evidence must be regarded as suspect. However, those matters are not the subject of complaint and, in any event, it is not for the appeal court to decide how it would have run the case. Even if the failure to take those steps had been complained about and was thought to be ill-advised or an error of judgment, that alone is not enough to sustain an allegation of miscarriage of justice where there exists, in objective terms, a reasonable explanation for the lawyer to give the advice that he did.

96 It is important to bear in mind that the question about whether the appellant should give evidence or not, or act on the lawyer's advice or not, involved no complexity. The appellant heard WT give her evidence. The appellant, who appeared to be a person of ordinary intelligence, understood and was advised that he could go into the witness box and dispute WT's evidence (hence exposing himself to cross-examination). He could choose not to do so and therefore avoid awkward cross-examination. He did not require legal advice to know that if he decided not to give evidence, the jury would only have heard from WT. This is not a case like Re Knowles [1984] VicRp 67; [1984] VR 751, where counsel formed an erroneous legal view that the evidence of two witnesses was irrelevant and inadmissible, and as a result did not call them. In Re Knowles, a decision was made by counsel on a technical legal issue and the accused would naturally have relied on that advice and would have assumed it was correct.

97 Finally, I should observe that there was no issue raised about whether the appellant and his lawyer should give evidence at the appeal. This is the third case in which I have been involved (the others being Rinaldi v The State of Western Australia [2007] WASCA 53 and AD v The State of Western Australia [No 2] [2007] WASCA 207) where counsel and/or the appellant have given evidence. In my view, the parties in this type of appeal should give close consideration to whether evidence is necessary. If no thought is given to the subject, the Court of Appeal may become involved in what is in effect a debriefing about why cases were conducted as they were. The High Court has made it plain that the conduct of counsel must be examined to determine whether, objectively, there could be a reasonable explanation for the course that was adopted at trial and Gleeson J, in Nudd [10], explained that while there may be some cases where evidence may be necessary, ordinarily an examination of why steps were taken is not relevant and also impractical.

98 In this case, save for one point there was no need for evidence to be given to this court. There was no dispute that the appellant had been advised by the lawyer that he could give evidence if he wished, that the lawyer advised the appellant not to give evidence, that the lawyer gave reasons why he thought the appellant should not give evidence, and that the appellant did not give evidence.

99 The one point on which the appellant had to give evidence was to state that he would have given evidence if he had not received the advice he did. The question and answer on that point were in the following terms:

... if you had been informed by your counsel, your trial counsel that is, that [AT's] evidence as to what you had said to her before you were spoken to by the police on the phone was to the effect, 'What if I put my hand down [the complainant's] pants; do you think [BC] would have me back,' if you had been informed by your trial counsel that if you didn't give evidence that would stand as uncontradicted evidence in the trial and would be an implied admission by you, do you think you would have given any instructions to him in relation to giving evidence?---Yes, I would have told him I wanted to give evidence.

100 A court is not obliged to accept such evidence any more than a court is obliged to accept the evidence of a patient in a medical negligence case

asserting that if they had been warned of the adverse risks they would not have undergone surgery which caused the injury. In Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, Kirby J said:

Once a disaster has occurred, it would be rare, at least where litigation has commenced, that a patient would not be persuaded, in his or her own mind, that a failure to warn had significant consequences for undertaking the medical procedure at all ... or postponing it and getting a more experienced surgeon ... yet these dangers should not be overstated. Tribunals of fact can be trusted to reject absurd, self-interested assertions (272 - 273).

101 The same applies when a person is convicted after not giving evidence in a criminal trial. It is very easy for an appellant to make the self-serving assertion that he would have given evidence if he had not been given the advice that he received. There were signs that the appellant in his evidence to this court wanted to give the impression that he had to make his decision about whether he should give evidence or not under pressure of time. However, it is clear that he did not have to make the decision on the spot. He had overnight to think about the situation and the subject of whether he should give evidence or not had been discussed well before then. I am nevertheless prepared to accept the appellant's evidence that if he had been advised to give evidence, that he would have done so. However, that is not enough to establish the ground of appeal.

102 My conclusion is that the appellant has not established that there was any error or material irregularity giving rise to any miscarriage of justice. There is a rational explanation for why the lawyer could have given advice to the appellant that he not give evidence and then not called him as a witness. I would dismiss the appeal.

103 LE MIERE AJA: I agree with the Chief Justice.