Knowles (a pseudonym) v The Queen [2015] VSCA 141

Knowles (a pseudonym) v The Queen [2015] VSCA 141 - VSCA 2015 case summary — Zoe

[49]

Have you ever spoken to her about vagina oil?---No. I do know that that is a term that [the mother] has used in the past when [the complainant] had a bad case of thrush.

Well, that was never put. Do you know what I mean when I say put? That was never suggested to [the mother] that she had used that term before, was it?---No.

And [the mother] and [the father] gave evidence that, well [the father] certainly gave evidence that she had never used a term like that?---Well, to be bluntly, I think they're lying.

Did you tell your barrister that?---No.

Sorry? - Oh yes, I did, that I think they're lying. Yes.

And did you tell him before they gave evidence?---Yes.

Sorry. So when do you say you have heard the term vagina oil before?

---From [the mother].

In what context?---Um, we've - we, um, found out that, um, [the complainant] had a bad case of thrush.

Yes?---That she was constantly scratching down there.

Yes?---Um, I've asked, "what's wrong?" and she said that she had a bad case of thrush. Um, I was like, "Well, have you, um, medicated that?". And she's like, "Yes". And I've also told her things of - things that will happen to help the thrush.

You've had a conversation with [the complainant] about her thrush?---No, [the mother].

With [the mother]. You have offered advice to [the mother] on how to help with [the complainant's] thrush?---Yes.

And sorry?---Because - - -

And how does that fit in with the vagina oil comment?---Um, [the mother] said to [the complainant], [the mother] told me that she told [the complainant] that there is a, like an oil base germ in the vagina to help, um, get rid of infections and stuff.

An oil base what, sorry?---An oil base substance. I - I can't really - - -

It's not called vagina oil though, is it?---No.

No?---But she - she used that term, vagina oil.

You are saying [the mother] used that term?---Yes.

And when was this?---Ages ago. This was maybe a year before this incident. And other people of - that I know have heard [the mother] explain this as well.

And you told all this to your barrister prior to this court case?---Yes, to the court case, like from, uh, county, from this court here.

Yes?---Uh, yes.

[180]

There are two reasons why the question whether an accused was competently represented poses difficulties for an appellate court. First, the conduct of a criminal trial frequently involves defence counsel in making tactical decisions designed to obtain a forensic advantage or, perhaps, to avoid a forensic disadvantage. Those decisions may contribute to a defect or irregularity in the trial. Thus, for example, defence counsel may decide not to seek directions with respect to the need for corroboration lest the directions serve to emphasise the strength of the corroborative evidence with the result that there is a defect in the trial because no such directions are given. The second reason is that, ordinarily, it is not possible to know what was in defence counsel's brief.
Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel's conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether "no substantial miscarriage of justice has actually occurred". In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.
The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open". The word "fairly" should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.
As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.
Even though there is no defect or irregularity in a trial, a question may arise whether there was a miscarriage of justice. Such is the case, for example, when it is argued that a verdict should be set aside because of the discovery of evidence that was not available or, with reasonable diligence, could not have been made available at the trial - "fresh evidence", as it is usually called. The question may also arise if counsel fails to call evidence that was available or fails to elicit evidence in cross-examination. In that situation, it has been customary to focus on the competence of defence counsel, it being said that there must be "flagrant incompetence", an "egregious error", "extreme conduct" or "significant fault". Thus it was that the argument in the present case was premised on counsel having made a "wrong" decision.
Apart from the difficulties involved in an appellate court reviewing the conduct of counsel to determine whether it justifies one or other of the above descriptions or, even, whether it involved error, that is not an exercise that is directly required by s6(1) of the Criminal Appeal Act. Relevantly, the question posed by s 6(1) is whether "on any other ground ... there was a miscarriage of justice". The words "on any other ground" do not postulate the demonstration of error. Rather, they simply require that "something occurred or did not occur" in the trial.
As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referrable to the course taken by defence counsel, it was the result of "flagrant incompetence", "egregious error" or the like.
An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial. As was said by Barwick CJ in relation to fresh evidence in Ratten v The Queen:

[183]

No less importantly, however, it follows from the characteristics of a criminal trial which I have identified that, when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?
If there could not be any such explanation, there may have been a miscarriage of justice. It would then be necessary to go on to ask whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led. If, however, there could be a reasonable explanation for not calling the evidence, that will be the end of the matter. It is not to the point then to inquire whether counsel did or did not think about the point, or acted competently or incompetently, even though the conclusion that there could be no reasonable explanation for the course followed at trial would seem to entail the conclusion that counsel did not act competently.
To hold that the inquiry is not an objective inquiry of the kind I have described would require an appellate court to apply inquisitorial methods and standards in determining an appeal from what, at trial, has been an accusatorial and adversarial process. It would require the appellate court to examine whether, on all the material available, a jury would have been likely to entertain a doubt. That is a very different process from the process undertaken at trial which is predicated upon the parties choosing the field for debate and (subject to the obligations of the prosecution) the evidence that is to be led. The principles which inform the two processes are so radically different that they cannot be applied at successive stages of the judicial process. If they are to be merged in some way, that must occur throughout the system, not by applying one set of principles at trial and another, contrary, set of principles on appeal.
Yet that is what would be done if the question were thought to turn on a factual inquiry into why trial counsel acted, or did not act, in a particular way. It would require the appellate court to decide first whether, in all of the circumstances of the case, counsel had acted wisely, and then whether, if a different course had been taken, the outcome of the trial might, or would likely have been different. And if the court were persuaded that trial counsel had not acted with reasonable skill (as, for example, by not weighing the relevant considerations properly, or even not adverting to what now is thought to have been the relevant question), what is the court to do? Would it be enough to conclude that the case might have been conducted differently and if it had, there might, or even would likely have been a different outcome? That is, is the question at its base whether, on all the material that could have been led at trial, the appellate court concludes that a different outcome was possible or probable?
A test of that kind would indeed be undemanding. Trial counsel must often make difficult decisions - both in court and out of court. Often the decision is one about which reasonable minds may differ. It follows that there will be very many trials of which it could be said that the trial could have been conducted differently from the way it was. And even if the further test that then is to be applied is whether it is likely that the result would have been different if further evidence had been led, there will be many cases in which that conclusion would be reached. That fact alone may suggest that a wrong step has been taken in formulating the relevant principles. But when it is recalled that the premise for the debate is an acceptance of the fact that competent counsel, acting reasonably, could have concluded that the evidence in question should not be led, it is obvious that the focus of attention has been shifted away from ensuring that there has been no miscarriage of justice and on to the conduct of counsel.

[186]

The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial.
Where it is claimed that a miscarriage of justice of the second kind referred to in Davies and Cody and Ratten has occurred, the appellate court is primarily concerned with what happened at, or in relation to, the trial of the appellant; an investigation of why it 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 a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions. Similarly, where the conduct of counsel, as a participant in the trial process, is said to give rise to, or to be involved in, a miscarriage of justice, ordinarily it was what was done or omitted that is of significance, rather than why that occurred.
Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Considerations of fairness often turn upon the choices made by counsel at a trial. In TKWJ v R, the appellant complained that evidence of his good character was not led. This, it was said, was unfair. In rejecting that argument, this Court said that the failure to call the evidence was the result of a decision by counsel, and that, viewed objectively, it was a rational decision. That, in the circumstances of the case, was conclusive. It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel's conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.

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