LANGE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 165 | Case summary

5 The appellant now appeals his conviction on the grounds that:[1]

Court of Appeal (WA)|2021-09-09|Before: Quinlan CJ

2 The appellant was charged on indictment that on 22 February 2018, at Dongara, he had in his possession a prohibited drug (namely cannabis) with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).

3 On 18 December 2019, following a trial before Birmingham DCJ and a jury in Geraldton, the appellant was convicted of the charge.

4 That same day, the appellant was sentenced to 2 years imprisonment. The appellant was made eligible for parole and the subject of a drug trafficker declaration.

5 The appellant now appeals his conviction on the grounds that:[1]

(a) 'The Appellant suffered a miscarriage of justice because his trial was incompetently conducted by his Counsel' (ground 1); and

(b) 'The learned trial Judge erred by allowing the trial to continue and allowing the jury to receive the search video after it was played to the jury and tendered as an exhibit, even where it contained patently inadmissible material' (ground 2).

6 At the hearing of the appeal, the appellant submitted that, while the grounds of appeal were 'clearly separate', there was an 'inter‑relationship' between them.[2] That is clearly the case, inasmuch as the particulars of ground 1 include the alleged failure of the appellant's trial counsel 'to seek to edit the search video to remove the inadmissible portions'.[3] Whether, and if so in what respect, the search video did contain 'inadmissible' material (as alleged in ground 2) is therefore relevant to ground 1.

8 The appellant did not suffer a miscarriage of justice by reason of the incompetence of his trial counsel. On the contrary, in our view, the appellant has fallen well short of demonstrating that his counsel at trial failed, in any respect, to properly represent his interests. In particular, the allegation that counsel failed to provide adequate advice as to the appellant's right to give evidence must be rejected, as must the suggestion that counsel failed to obtain proper instructions.

9 In relation to the excerpts from the search video identified by the appellant in the context of ground 2, those excerpts were not, in our view, 'patently inadmissible'. The search video was edited prior to trial at the suggestion of the appellant's trial counsel to remove some inadmissible material. While there were other aspects of the search video that might have been the subject of application that they should be excluded, there was a rational basis for trial counsel to allow them to be admitted. Those latter aspects could readily be seen as consistent with, and supportive of, the defence case.

11 Nor could the admission of the identified portions of the search video otherwise give rise to an error of law on the part of the trial judge. No objection was taken to the admission of the edited search video at trial. Consequently, the appellant must demonstrate that the admission of the evidence gave rise to a miscarriage of justice. He has not done so. The inclusion of the portions identified by the appellant on appeal did not prejudice the appellant. Indeed, as already noted, they were consistent with his case at trial. Moreover, the trial judge gave clear directions to the jury that precluded them from using the parts of the interview to which the appellant points in any manner prejudicial to the appellant.

13 Neither ground of appeal has sufficient merit to warrant the grant of leave to appeal. Leave to appeal on each ground of appeal should be refused. The appeal must therefore be dismissed.

15 Both the appellant and his trial counsel, Mr Andrew Guy, gave evidence at the hearing of the appeal in relation to the conduct of the appellant's trial. Before turning to their evidence, it is first necessary to set out the proceedings at trial by reference to the record itself.

On 22 February 2018 at Dongara Jacques William Lange II had in his possession a prohibited drug, namely cannabis, with intent to sell or supply it to another.

17 The State case was that the appellant and his partner (Maria Ward)[4] were the subject of a traffic stop by police on Brand Highway near Dongara. The police conducted a search of the appellant's vehicle, in the course of which they found a toolbox that was riveted closed. When the police opened the toolbox they found five cryovac bags of cannabis weighing a total of 2.277 kg.[5]

18 The State case was that the appellant was in possession of the cannabis in the toolbox and, in particular, the State case was that the appellant either knew of, or was wilfully blind to, the presence of the cannabis in the toolbox.

19 The State called two witnesses: Senior Constable Wright and Detective First Class Constable Brambling. Senior Constable Wright was one of the officers who conducted the traffic stop and the search on Brand Highway. Detective First Class Constable Brambling was a detective at the Geraldton Detectives Office who interviewed the appellant following his arrest.

20 Senior Constable Wright gave evidence that, on 22 February 2018, he and another officer stopped a vehicle on Brand Highway for a minor speeding offence and conducted a search of the vehicle under the Misuse of Drugs Act.[6]

21 He gave evidence that the search revealed a metal box in the boot of the vehicle and that, inside the box, there were five separate packages inside which were what looked to him like cannabis plant material.[7] Photographs of the metal box and the five packages were tendered through Senior Constable Wright.

22 Senior Constable Wright also identified a video recording of the search of the vehicle conducted at Brand Highway (the search video).[8] The search video tendered in evidence was an edited version which (as will become apparent) was edited at the request of Mr Guy to remove a number of exchanges with Ms Ward.

23 The search video, which was 10.56 minutes in duration, depicted the appellant and Ms Ward at the roadside. It records the appellant and Ms Ward being cautioned. Relevantly the search video included the following.

24 At the commencement of the search video, in the context of the caution being given to the appellant and Ms Ward, the following exchange occurred between Ms Ward and Senior Constable Williams and her partner Senior Constable Wright:[9]

S/CON WILLIAMS: Okay. If at any s-, ---

[WARD]: But, so far ---

S/CON WILLIAMS: Time you don't understand what Senior Constable Wright or myself say, just say that you don't understand and then we can go from there. We can [indistinct] we wanted [indistinct].

[WARD]: I've tried few times, but it wasn't kind of f-, attended so ---

S/CON WRIGHT: What don't you understand?

[WARD]: Um, I don't understand sell/supply. I mean, if, if that was i-, how do we sell and supply? What, did you catch us selling it?

S/CON WILLIAMS: Okay. Sell/supply, it just means, because you've got such a lot in the vehicle, that, to us, is indicating sell/supply so that's why ---

[WARD]: Oh, so that's as-, assumption.

S/CON WILLIAMS: Yeah.

[WARD]: That's not actual, proven fact.

S/CON WILLIAMS: Correct. At this point.

S/CON WRIGHT: We ---

S/CON WILLIAMS: Yep. Alright.

S/CON WRIGHT: You have possession of it.

[WARD]: Yes.

S/CON WILLIAMS: It's in your vehicle.

S/CON WRIGHT: It's in the car. And we believe you've got possession because you intend to sell or supply it. Okay.

[WARD]: I am ---

S/CON WRIGHT: Because there's an awful lot there for personal use. Okay.

[WARD]: Okay.

S/CON WRIGHT: Now, you were saying.

25 The search video later included the following exchanges with the appellant:[10]

S/CON WRIGHT: Jacques, I'm going to give you the same opportunity. Remembering your rights.

LANGE: Mmhmm.

S/CON WRIGHT: Remembering the main one, which is you don't have to talk if you don't want to. We can't force you to talk and we don't want to force you to talk. Do you want to give an explanation ---

LANGE: No comment at this stage.

S/CON WRIGHT: For who you got that off?

LANGE: No comment at this stage.

...

S/CON WILLIAMS: ... Um, on inspecting the boot [indistinct] on inspecting the boot m-, these items were pulled out and we located a box that was sealed with rivets in four places. One, two, three and four. Senior Constable Wright and myself asked what was in the box. We were told they didn't know so we opened up the box. And inside, we've located numerous bags of cannabis.

S/CON WRIGHT: That's, I c-, I can see enough. Th-, you don't need ---

S/CON WILLIAMS: [indistinct] okay.

S/CON WRIGHT: You don't really need to open it [indistinct].

LANGE: Are you able to turn that this way so we can see?

[WARD]: I, I'd like to see what's in the box.

LANGE: [indistinct]

[WARD]: What am I getting arrested [indistinct].

LANGE: I can see a tiny bit. That's it.

S/CON WRIGHT: Yeah. We've got no problem with showing you what's in the box, obviously, so we'll do that.

S/CON WILLIAMS: Um, the rest of the car is to be searched, the boot. We're going to transport the suspects to Dongara Police Station for further processing, um, with the help of Acting Sergeant Potts. Um, and then we'll go f-, there for further questioning.

S/CON WRIGHT: Okay. Sh-, show them what's in the box, mate.

S/CON WILLIAMS: So, Jacques, can you tell me what's in here?

LANGE: [indistinct] looks like, it looks like cannabis.

S/CON WILLIAMS: Okay. And does it belong to you?

LANGE: Nup.

S/CON WILLIAMS: No. So if I was to get DNA done on those bags, whose DNA would come up on it?

LANGE: No comment.

S/CON WILLIAMS: No comment.

LANGE: I have no idea whose, whose DNA would come up on the bag. Not mine.

S/CON WILLIAMS: Not yours.

LANGE: I'm telling you that right now.

S/CON WILLIAMS: Okay. So tell me ---

LANGE: The only DNA ---

S/CON WILLIAMS: Tell me the story about the box. Tell me the story about how you came into possession of it.

LANGE: I've already stated that, but ---

S/CON WILLIAMS: Yeah, I know. But on the camera.

LANGE: Yeah. Well, we can state that back there instead of me sitting in gravel. But the only DNA you'll find on that is on that handle where I picked it up. That's it.

S/CON WILLIAMS: Okay. And what, what's the story behind it? What were you, where were you taking it to?

LANGE: [indistinct]

S/CON WILLIAMS: Where were you taking the box to?

LANGE: With us.

S/CON WILLIAMS: Yeah. To where?

LANGE: Oh, no comment.

S/CON WILLIAMS: No comment.

LANGE: Yes.

S/CON WRIGHT: You said you're on your way to Karratha before.

LANGE: Yep. That's, that's where we are going to.

26 The officers then had the following exchange with Ms Ward:[11]

S/CON WILLIAMS: Who does this belong to, Maria?

[WARD]: I've never had [indistinct] and now my hands a-, i-, on my arms. I, I don't ---

S/CON WILLIAMS: Okay. Can you recall ---

S/CON WRIGHT: Maria, you asked to see what's in the box so look in the box if you want.

[WARD]: I-, ah, it, it, it is very hard for me to see what it is. But it a-, according to all the comments, I believe it's a large amount of marijuana. Yes.

S/CON WILLIAMS: Okay. So who gave this to you?

[WARD]: Um, a person that, um, w-, we met in Karratha, ah, a while ago.

S/CON WILLIAMS: Okay. And where, where did you exchange the box? Where'd you get the box from [indistinct].

[WARD]: Um, it's i-, I d-, I'm not very familiar with Perth suburbs. But, yeah, in one of the places.

27 In cross‑examination, Senior Constable Wright was asked a number of questions directed to establishing that the appellant had cooperated with the police, including that he answered questions and consented to the search of his car. The cross‑examination included the following:[12]

And when you first found that box, you noticed it was, firstly, shut?---It was shut. Yes.

And it had clasps on the front of it?---It did. Yes.

And subsequently, you noticed it was riveted shut?---Correct.

And you asked Mr Lange, 'What's in the box'?---That's correct.

And he told you words to the effect of he was doing a favour for a friend?---That's right. Yes.

And his partner also responded to that question and said something along the lines of, 'It's tools'?---That's right. Yes.

So then you broke open the toolbox?---Yes.

And you found the cannabis then?---Yes.

And you arrested Mr Lange at that point?---That's correct .

That's when this roadside interview takes place?---Correct. Yes.

And Mr Lange asked you if you could see what was in the box, didn't he?---It was, like - yes. During that interview, he did. Yes. Yes.

28 Following cross‑examination, the trial judge asked a question by way of clarification, which elicited the following evidence:[13]

My recollection, your Honour, when I found the box, I asked the accused what was in the box and he said, 'I didn't know', having initially said, when I put it on the ground, 'What's that?' And she said, 'What's that?' When we asked what was in the box, the accused said he didn't - he didn't know what was in the box. And it was Ms Ward who said, 'Oh, it's just tools'. And that was - I think that was before - - -

But it wasn't the accused?---No, it wasn't the accused who said it was tools, your Honour. No, it was Ms Ward.

29 Following the evidence of Senior Constable Wright, and immediately before a morning adjournment, the trial judge indicated to the appellant's counsel that he would be putting the appellant to his election immediately upon the close of the State case and that counsel would need to be in a position to advise the trial judge of the appellant's election at that time.[14]

30 Detective Brambling gave evidence that, on 23 February 2018, he and Senior Constable Green conducted an electronically recorded record of interview with the appellant (EROI). The EROI was tendered as exhibit 3.[15]

32 The appellant said that, on the morning of 22 February 2018, he and Ms Ward were in Perth 'running around to get out of Perth'.[16] They were planning to go to Karratha for a fibreglassing job. The appellant said that he had been in contact with a 'mate' in relation to the fibreglassing job the day before and that they had gone to his house to discuss the job.[17] While he was at that person's house he was asked to take an item to another person in Karratha.

33 The appellant initially described those events in the following terms:[18]

Trying to get things loaded in our vehicle as well as we're going and then, um, stopped at a mate's. He had some work for me he has to do up here for me. Um, and chatted with him and he said, oh, mate, drop this off. Asked if he could bring that up and some tools and that, you know, and I put it in the car. It was quick.

S/CON GREEN: Mmhmm.

LANGE: Didn't think anything of it. Trying to get on the road. Get on the road and when we got to a rest stop and pulled it out and we, making it so it wasn't, ah, it was in the back seat and that's where the dog was so we wanted to make it comfortable for him ---

S/CON GREEN: Mmhmm.

LANGE: And we threw it in the back and as I was putting it in there, I saw it still and, you know, sort of calmed down from the running around all morning and that and, you know, it sort of clicked to me then. I went, that doesn't sound like tools. You know, what I mean. [indistinct] don't care. It's not my crap, you know what I mean.

34 The appellant said he was pulled over, and continued:[19]

And then, ah, got pulled over and then they asked me, they found out my licence was suspended. Um, and then, ah, they wanted to search the vehicle. I said, no, no, haven't got anything on us. There's nothing here. Started rifling through everything and front, rear, boot and then they got to that and they said, oh, what's this? What's in here? And I said, I don't know. That's not mine.

S/CON GREEN: Okay.

LANGE: It was, ah, from a friend of, I said, apparently it's tools.

S/CON GREEN: Okay.

LANGE: And, um, yeah, that's when they opened it and they found that.

S/CON GREEN: Okay.

LANGE: Then we're in the dirt.

S/CON GREEN: Alright. So, ah, if you could, elaborate on they found that. What was that? What was that?

LANGE: Ah, it appeared we had to give 'em, ask 'em four times for 'em to show us what it was. We're already arrested on the ground. We're trying to work out what it is that's in the box.

S/CON GREEN: Okay.

LANGE: I mean we could see something was there and I mean I would like a, you know, just turn it, all they had to do was turn it this way and just open it and just show me what it was and Maria's the same way. She's gone, what is it? What, what's in the box? She's further away from me and I'm like, yeah, it looked like marijuana.

S/CON GREEN: Okay.

LANGE: Which it was, yeah.

S/CON GREEN: Yeah. Okay. Okay.

LANGE: We were shocked at the time. It was just a few ounces, you know, one or two. I don't know. I wasn't that close. You know, I was that far away, I couldn't see.

35 Later in the EROI the appellant confirmed that the person who gave him the box was the same 'mate' with whom he had discussed the fibreglassing.[20]

36 When asked to identify the friend who had given him the box, the appellant said:[21]

LANGE: Well, that's the thing. I don't really want to say too much at this stage 'cause ---

S/CON GREEN: Oh ---

LANGE: I mean ---

S/CON GREEN: I can understand.

LANGE: Um ---

S/CON GREEN: As I said, you don't have to answer ---

LANGE: There's things from my life as well.

S/CON GREEN: Yeah.

LANGE: You know what I mean. Like, they, ah, a lot of these people, and when there's that much in there, like, I thought, oh, six or seven [indistinct] you know, a couple of ounces.

S/CON GREEN: Alright. Let's ---

LANGE: It shouldn't be a big deal but when they told me it's that much I'm goin', oh, my God, someone's gonna get killed over this.

S/CON GREEN: Okay. So, um, Jake, as I've explained at the beginning of the interview, you don't have to answer. So if you want to choose not to answer some questions, you can do. That's your right.

LANGE: I'm waiting to see what's gonna happen and then maybe but, yeah.

37 When the interview returned to the box itself the appellant said, on a number of occasions, that it wasn't 'that heavy'.[22] He said that when he later stopped for fuel, he moved the box from the back seat into the boot or truck. He was asked about his earlier statement that it 'didn't sound like tools' and said:[23]

And it's got a little bit of weight but I mean I do have reciprocating saws at home that fit into a box very similar to that in the foam in the plastic and, you know, you close the lid and they don't rattle around so I thought, oh, maybe it's one of those.

38 The appellant denied that he had gone to the friend's house for the purpose of picking something up. He said that he went there because it was easier to talk about some of the fibreglassing in person.[24]

39 In relation to the other mate, to whom the appellant was to deliver the box, the appellant said 'he's not that good of a mate' and that he knew that he sells drugs and that he had 'been in trouble and in jail and all that'.[25]

40 In addition to the EROI, Detective Brambling also produced a number of certificates under the Misuse of Drugs Act to the effect that the plant material in the box was cannabis.[26] He also produced a schedule of text messages photographed on the appellant's mobile phone:[27]

41 Detective Brambling gave evidence that the appellant's telephone number was 0415 671 606.[28] The other number (from the friend in Perth) was identified only from the appellant's phone as 'Dave' or 'DaveM5'. As can be seen on the exhibit, two of the entries had the 'from (number)' and the 'to (number) incorrectly transposed. That was a matter corrected before the jury, the correct numbers being inserted by the trial judge in red pen.[29]

42 In cross‑examination Detective Brambling confirmed that the appellant answered all questions asked of him. Detective Brambling was asked, and confirmed that he did not know, how heavy a reciprocating saw was (i.e. the item referred to in the EROI at [37] above). He also confirmed that there were no positive fingerprint or DNA results from the box [30] the bags.30

43 The appellant elected not to give evidence or adduce evidence at trial.

44 The appellant's counsel accepted that the focus of the issues for the jury was the question of knowledge, as it related to the element of possession.

45 The appellant's trial was short. The jury retired at 3.02 pm on the day they were empanelled.[31]

47 As noted at the outset of these reasons, ground 1 contends that the appellant suffered a miscarriage of justice because his trial was incompetently conducted by his counsel.

48 The appellant provided particulars of ground 1, identifying what he alleged were the relevant failings by counsel. Those particulars were that:[32]

(a) Counsel failed to obtain timely, proper and fulsome instructions from the Appellant in circumstances including where he did not obtain a signed proof of evidence from the Appellant.

(b) Counsel failed to adequately provide, explain, advise upon and seek the Appellant's instructions on the prosecution case, including the text schedule (exhibit 5).

(c) Counsel failed to advise the Appellant adequately on his right to give or not give evidence including a failure to tell the Appellant that if he did not give evidence then any explanations he had for any evidence would be confined to what was said in the visually recorded roadside search video (search video) and his video record of interview.

(d) Counsel failed to seek to edit the search video to remove the inadmissible portions nor did he advise the Appellant about the editing process nor explain or seek the Appellant's instructions on it.

(e) Counsel failed to defend the trial based on the Appellant's instructions.

49 Before addressing this ground in light of the relevant legal principles it is, first, necessary to the deal with the evidence adduced at the hearing of the appeal in relation to the ground.

50 Each of the appellant and Mr Guy swore affidavits for the purposes of the appeal, on 6 August 2020[33] and 7 September 2020[34] respectively, and they both gave evidence at the hearing of the appeal. In addition, the State adduced an affidavit of Gemma Nicole Beggs, annexing relevant correspondence between Mr Guy and the Office of the Director of Public Prosecutions.[35]

51 The appellant deposed in his affidavit that he was initially represented by another practitioner until approximately '6 to 8 months before [his] trial date'. Mr Guy was subsequently appointed as his new trial counsel.

52 The appellant deposed that when Mr Guy was first appointed he 'sent him some photographs that were relevant to my matter for my defence'. Prior to the trial, the appellant said that he had spoken to counsel '3 to 4 times on the telephone'.

53 The appellant said that he first met with Mr Guy, face‑to‑face, at a call‑over on Monday 16 December 2019 (i.e. two days before trial). At that meeting, the appellant deposed that:

(b) Mr Guy advised the appellant that he had sent an email to the appellant on 12 December 2019, which the appellant located on his mobile telephone; and

(c) the 12 December 2019 email contained a table of the statements given by the two police officers, which was highlighted with different colours. The appellant and Mr Guy discussed the table for about 5 to 10 minutes.

54 At the call‑over the appellant was remanded in custody.

55 The appellant deposed that he again met Mr Guy at Greenough Regional Prison at approximately 3.00 pm to discuss the trial. He said that the meeting lasted approximately 30 minutes. He also deposed to meeting Mr Guy before court on the morning of trial.

56 In relation to the schedule of text messages reproduced at [40] above (in relation to ground 1(b)), the appellant said he observed the prosecutor giving it to Mr Guy before Court. He continued:

27. The piece of paper was the spread sheet of text messages which was tendered into evidence by the prosecution marked as exhibit number 5 ('Exhibit 5'). It was produced to my Counsel before His Honour entered the Court room. I could not see it from where I was sitting and had never seen the text message schedule that was produced in Court as it did not form part of the prosecution's brief.

28. I have now seen the trial transcript on page 39 at paragraph 2 where my Counsel informs His Honour that he has no objection to the text message schedule and that it was shown to him last week.

57 In relation to his election whether to give evidence at trial (ground 1(c)), the appellant deposed as follows:

30. Counsel had advised me about 4 months earlier before my trial commenced, that I would not need to testify at trial as my police electronic record of interview would be enough. Given Counsel's advice I did not have the opportunity to provide any evidence to counter the text message schedule that was put before the jury at trial. I did not realise that unless I gave evidence my Counsel would be limited in what he could tell the jury to things that were in evidence. The first I knew of this was when my new Counsel for this appeal, Ms Linda Black, explained this to me by phone when I was discussing possible grounds of appeal with her.

...

32. I was not advised by Counsel of the possible consequences of not giving evidence at trial. My Counsel did not adequately explain these rights to me nor did he ever explain the implications for me if I did not elect to give evidence at trial. I was never asked to sign a document setting out my rights to give or not give evidence. I thought my Counsel could use my video interview and tell the jury the other things that I told him when we met.

33. My Counsel advised the Judge (on page 44 at paragraph 7 of the trial transcript) that I would not be giving evidence despite the issues that had arisen during the course of my trial with respect to the text message schedule (Exhibit 5). I had an explanation for the text messages which I had previously discussed with Counsel when he was first appointed that, if the jury accepted it, would have shown they had nothing to do with drugs.

34. As a result of being advised by Counsel not to give evidence at trial I was not afforded the opportunity to provide to the jury an explanation in relation to the text messages that were on my phone in my defence.

58 It should be noted that [34] of the appellant's affidavit (above) is the high point of his evidence as to the effect of what he says was Mr Guy's advice (i.e. 'I was not afforded the opportunity to provide the jury an explanation'). In neither his affidavit, nor his evidence on the appeal, did the appellant go so far as to say that, differently advised, he would have given evidence at trial. Moreover, apart from referring to the text messages and to photographs relating to the fibreglassing job, the appellant gave very little evidence in this Court as to what evidence he would have given at trial beyond what he had said to the police.

59 Finally in relation to edits to the search video (ground 1(d)), the appellant deposed:

35. I was never informed by Counsel about whether there should be any edits to the road side search video ('Exhibit 2'). I was also never informed as to whether Counsel had checked the road side search video to confirm the edits that were agreed and if any had been made before it was played to the jury at trial. I didn't realise that the jury were not supposed to hear what my female companion said to the police in that interview. No one told me you could edit a video.

...

38. There was also the opinion provided by the police officers at the roadside search interview that were not edited from the video (Exhibit 2) and this was subsequently left in and was played to the jury at trial. I also now know that my 'no comments' were also left it in the videos that were played to the jury. This was never discussed with me by my Counsel.

60 In his evidence‑in‑chief at the hearing of the appeal, the appellant said, in reference to Mr Guy, that 'three to four weeks before the trial they said they were going to be looking at editing the video'.[36] He said that Mr Guy 'told me that it's common for them to take out voices in a video. They said they were going to remove Maria's voice. They said it was quite common.'[37] It can be seen that this evidence directly contradicts aspects of what is said in par 35 of the appellant's affidavit.

61 In cross‑examination, the appellant confirmed that, prior to Mr Guy's engagement, he was provided with a copy of the prosecution brief.[38] He agreed that in those materials there were photographs of the screen of his mobile phone that showed the text messages. The appellant said that the text messages related to a fibreglassing job and that he explained that to Mr Guy. He said:[39]

Yes, I explained every single one of them on the first day, what that was about. Every single text that was there he had an explanation for; that's correct.

62 The appellant said that the photographs he provided to Mr Guy (see [52] above) were photographs of the fibreglassing job.

63 The appellant gave evidence as to his recollection of the other telephone calls with Mr Guy and agreed that they had discussed the appellant's version of events. In particular, the appellant agreed that he confirmed that what he had said to the police in the search video and the EROI was correct.[40] He agreed that they discussed that the only issue at trial was whether the appellant knew what the toolbox contained.[41]

64 In relation to his election whether to give evidence at trial, the appellant gave the following evidence in cross‑examination:[42]

[Y]ou accept that that was something, the giving of evidence by you, was something that was discussed between you and Mr Guy prior to the trial?---Correct.

And he made a recommendation to you; that's correct?---Yes, he said not to.

Okay. And he explained his reasonings why?---He said everything was in the interview.

And you were content to act on that recommendation?---Not particularly, but I was following his advice.

Okay. And - - -?---I was concerned and I raised the question twice before the trial.

And your concern was related, particularly, to the photographs?---Yes, the interview not being enough.

And when you say that, you mean that in the interview it wasn't discussed?---Not enough evidence, yes.

Sorry, you mean that in the interview the photographs weren't discussed?---No, not just the photographs, but the whole point of the interview and everything - the police interview.

And you say that had you given evidence you would have explained in more detail that the text messages related - - -?---Correct.

- - - to a fibreglassing job?---The whole scenario, the whole case.

I'm just trying to be a bit more specific, Mr Lange?---Yes. Sorry.

You say that had you given evidence in your trial you would have explained in more detail the text messages?---Yes, that's one of them.

That's an aspect of it, and, particularly, also the photographs?---The photographs, yes, if we took them and put them in as our evidence. Yes.

And, sorry, just to be clear, we're talking about the photographs that you had provided Mr Guy earlier?---Yes, that's correct.

Okay. Thank you. And Mr Guy advised you, of course, that that was your choice to make about whether or not you gave evidence?---Yes, it was my choice, but he said yes, he doesn't suggest it.

Okay. And that topic, was that - that was revisited during the course of the trial?---One time during the trial. This was after, I think, I think the judge has given a direction in the trial. They asked me again, so downstairs, I think, between the glass, he asked me again, and I asked him, 'Should I be? I can explain more.' And he advised me no. (Emphasis added)

65 In re‑examination the appellant was asked whether he was advised that other inquiries could be made in relation to his telephone records, which he said he had not.

66 In relation to the photographs he had provided to Mr Guy the appellant said that he could not recall discussing how the photographs could become evidence but did say that Mr Guy said that 'he wasn't going to put them in there; there was no need'.[43]

67 In re‑examination, in response to a question as to whether he knew that there were 'other text messages' between the appellant and the other people, the appellant said, for the first time, 'if you look in my phone from the day or two before' there were texts about the 'first aid guy' referred to in the text schedule.[44]

68 Finally, the appellant confirmed, in re‑examination, that he did not provide a document to his lawyer about what evidence he would give if he did give evidence, such as a proof of evidence (ground 1(a)). The appellant said:[45]

No, because he kept saying not to give any, so - yes, nothing was discussed about what I would say because I wasn't supposed to say anything.

69 Mr Guy, in his affidavit, confirmed that he did not meet the appellant face‑to‑face until the call‑over on 16 December 2019.

70 In relation to their telephone contact prior to that time, Mr Guy gave the following evidence, which was essentially unchallenged:

6. As early as 4 February 2019, I had discussed the matter with [the appellant], over the phone, and it was resolved that the only dispute was the knowledge component of the possession element of the charge. On that date, I instructed a Duty Lawyer to appear for [the appellant] and expressed that there was no drug analysis disclosed, but the element in issue was the possession and more particularly knowledge.

7. On 5 February 2019 I spoke to [the appellant], over the phone, and confirmed that the defence relates to the factual dispute on the knowledge component. I discussed with [the appellant]:

The matter just needed to progress and needed to be committed;

The client told me that the Police were delaying as they were seeking DNA evidence. [The appellant] conceded to me there may be DNA on the outside of the toolbox, but definitely not on the inside of the toolbox;

We discussed that the Statement of Material facts and that it was alleged that [the appellant] knew illicit drugs were in the toolbox;

We discussed consenting to prosecution evidence because it did not affect the facts in issue, or it was uncontroversial;

That subject to whether the evidence can support the inference of knowledge, we will make a decision on whether [the appellant] needed to give evidence, or not.

8. On 18 April 2019, I spoke to [the appellant], over the phone and we discussed the DPP taking conduct of the matter and that they have an obligation to review the matter and ensure it should proceed. We discussed the text messages and the reference in the text messages to the 'job', being a fibre glassing job, not the delivery of drugs.

...

12. On 7 November 2019, I called the client and told the client that the State had contacted me and sought to narrow the issues for trial. I explained to [the appellant]:

Admissions under section 32 Evidence Act. I explained to [the appellant] that he can make admission or choose to not make admissions, to narrow issues at trial and focus on only the matters in dispute.

The issue at the trial will be the knowledge component of the possession element.

The State had told me that they were reconsidering whether Ms Ward should have been charged.

I explained that [the appellant] could give evidence in the matter, but he was not obliged to. That it is always he choice about whether to give evidence, or not.

I tried to arrange a meeting on 11 November 2019 after two sentencings I had to attend to in Karratha on that date.

The State case was circumstantial in relation to the knowledge component of the possession element and the State were saying that based on the people you were dealing with you should have appreciated, or reasonably expected, that there were illicit drugs in the toolbox.

The statements are not evidence and [the appellant] may have to give evidence of some matters or rely on what was said by him in the Police interview.

[The appellant] was told to ask for the week of the trial off from work, because the Callover will be used to put the trials in some order for the week and being a P3 I was not sure when the matter would start.

13. On 11 December 2019 [the appellant] called me about another matter and we spoke about the charge listed for Callover on 16 December 2019. We discussed:

There were three police witnesses only;

The Police interview and what was said about the intended recipient of the toolbox, and Dave M5, and that the Police did not investigate Dave M5 and whether an inference can be drawn given they do not know much about Dave M5.

The Police interview being positive in that [the appellant] denies knowledge of what is in the toolbox, meaning he will likely not need to give evidence at the trial to deny knowledge.

Whether [the appellant] noticed the rivets on the toolbox. We discussed the use of the rivets.

The client state that he denied knowledge of what is in the box;

That I was seeking the prosecution remove Ms Ward's evidence from the Road Side interview, because it is not relevant and the client is more stoic and consistent, with his comments in the Road Side interview.

14. As well as the above conversations, I can recall:

Receiving images, in July 2019 of:

A motorbike, missing the outer guard panels, outside what looked like a donga; and

Some panels, some with some fibreglass repairs, placed on a bed with pink sheets.

We discussed that the images mentioned above would not get into evidence unless the client gives evidence in the trial.

Discussing the comprehensive nature of the interview [the appellant] gave to the Police and discussing that he may rely on that as evidence in the matter;

Discussing that Ms Ward was not charged, and that she, in Mr Lange's opinion, was poorly treated by the Police;

We spoke at length and on more than one occasion about what occurred when they arrived at Dave M5's house;

Discussing seeking a discontinuance of the charge with the State on the basis that [the appellant] did not have intention to possess as he suspected there was a reciprocating saw in the toolbox and [the appellant] did not know what was in the toolbox.

15. I do not recall when, but, I do recall discussing edits with the State and both the Electronic Record of Interview and the Search Video were edited by agreement. I did not discuss in detail all edits with [the appellant], however, we spoken about Mr Ward's evidence being irrelevant and discussed whether some edits to the interview the with Police should be pursued or not, such as Mr Lange's historical use of cannabis.

16. Given the comprehensive nature of the Police interview I was of the view that [the appellant] did not need to give evidence in the matter. It was my view that he made relevant denials, he explained the texts and he raised a reason basis for how the toolbox got into the car. He stated that he trusted the man who gave him the toolbox and he says in the Police interview words to the effect 'I can believe these guys set me up'. I felt there was more to lose than gain by [the appellant] giving evidence at the trial. (Emphasis added)

71 Mr Guy's evidence in relation to 16 December 2019 included:

17. I met [the appellant] face to face the morning of the Callover in the Geraldton Court House. We discussed the matter down stairs and I explained to [the appellant] the evidence of the three police officers; that I had prepared the questions for the officers; and, I told [the appellant] that the videos, texts and the three witnesses will be all the evidence for the prosecution. I then told [the appellant] that once we have seen how the prosecution evidence comes together he can make a final decision on whether he needs to give evidence, but, in my view he did not need to. (Emphasis added)

72 In relation to their conference at Greenough Regional Prison that afternoon, Mr Guy deposed:[46]

The Police interview. We discussed what he said in it and confirmed it was true. We discussed it was comprehensive and that it was his decision, but it was my view that he should not give evidence in the matter. Due to what was said in the Police Interview [the appellant] does not need to deny the allegations, [the appellant] explains the texts, how the toolbox came to be in the car and [the appellant] giving evidence does nothing more than repeat and opens him up to cross examination.
The, now two, police witnesses' evidence. I had my questions written out by hand and I read them out and discussed the questions with [the appellant].

We discussed the text and referred it back to what was said in the Police interview, that they relate to a fibre glassing job.

73 In relation to his advice as to the appellant's election whether to give evidence, Mr Guy deposed:

33. I do not accept that I told [the appellant] that he would not need to give evidence at trial. It was my advice that he should not give evidence in his defence, for the reasons we discussed at the Prison. In the course of the trial at two points I asked [the appellant] whether he wanted to give evidence in his defence. Once, immediately prior to a break, the Judge asked me to be prepared to inform the Court about whether [the appellant] would give evidence in the matter. While in the Courtroom, but during a break, I confirmed my advice, discussed that Wright had given less evidence than I expected and told [the appellant] it was his decision whether he gave evidence or not. He said words to the effect that he would take my advice.

34. The second time was once Officer Bambling finished giving evidence. I turned to [the appellant] and asked him again if he wished to give evidence. He said words to the effect that he would take my advice. (Emphasis added)

74 In cross‑examination, Mr Guy confirmed that, other than the email dated 12 December 2019, his records did not suggest that he had any written communication with the appellant.[47] Mr Guy confirmed that he did not obtain a document of the appellant's instructions that would form the basis of the evidence he would give if he chose to give evidence.[48]

75 In that context, Mr Guy was asked about the text messages:[49]

I would like to ask you some questions in relation to the text messages. It's correct, is it not, that your evidence is that - is this correct that you effectively told Mr Lange that all that he needed to say about the matter, in your opinion, had been said in the record of interviews?---No. My - my advice was that what he had said in the record of interview was sufficient, in my view, given that relevant denials were made and that he had explained certain circumstances. So it wasn't the case that he had given everything he could have said. There was discussion about fibreglassing works and the like - - -

Right?--- - - - which he could have given evidence of. Equally, tools - how he came to believe the weight of tools and things.

But you accept that as a matter of fact, the text messages were not available at the time of either of his police interviews; correct?---Yes.

76 Mr Guy confirmed in cross‑examination that the schedule of text messages (see [40] above), was derived from the screenshots the police had taken and that he did not have records of the telepho[50] provider.50 He said that he was provided the table (i.e. the schedule) before trial but could not [51]call when.51

77 Mr Guy was asked in cross‑examination whether he and the appellant discussed 'other texts that were missing' and said he did not recall it being raised.[52] It was not put to Mr Guy that the appellant had instructed him that there was some particular 'other' text that might have a bearing on the issues at trial.

78 In relation to the search video, Mr Guy was cross‑examined as follows:[53]

Mr Guy, did you ever discuss editing the video with the appellant?---Not that I can recall.

Okay. Did you ever tell the appellant anything about whether or not the voice of his co-accused would or would not be heard by the jury?---Sorry.

Yes?---I can actually recall discussing the video with him because we had discussions about his partner's evidence not being admissible, and it's something the State will raise with me, so I spoke to him about that.

Did you tell him that the jury would not hear his coaccused's voice at the trial?---Probably not in those words, no.

Did you tell him words to that effect?---I believe so, but I don't - - -

Okay?--- - - - have a note or something to that effect.

Did you - do you have a recollection of whether the jury did, in fact, at trial hear the words of the co-accused coming from the roadside video?---My recollection is it only came from that police officer.

Okay. So you don't recall her speaking on the roadside video; is that your evidence?---Yes.

79 Ms Beggs' affidavit, annexing relevant correspondence with Mr Guy from the records of the Office of the Director of Public Prosecutions, revealed the following:

(a) on 6 December 2019 Mr Guy was sent a copy of the schedule of text messages (see [40] above);

(b) on 6 December 2019 Mr Guy provided to the State a marked up copy of the transcript of the search video with a number of requested edits. The suggested edits were identified by Mr Guy as relating to, first, comments made by Ms Ward, which were not relevant and, secondly, a passage in which one of the officers asked the appellant to confirm something he was alleged to have said off camera; and

(c) the edits to the search video were substantial and excised significant exchanges between Ms Ward and the officers. The edits to the search video tendered in evidence correspond with the portions identified by Mr Guy.

80 Ultimately, in our view, insofar as the objective facts are concerned, there was relatively little difference, by way of substance, between the evidence of the appellant and the evidence of Mr Guy in relation to Mr Guy's conduct of the trial. What differences there were, in our assessment, consisted largely of interpretation on the part of the appellant as to the events in question, rather than issues of substance.

81 To the extent that there were any substantive differences between the evidence of the appellant and Mr Guy, we prefer the evidence of Mr Guy.

82 Mr Guy was clear and concise in his evidence. He made appropriate concessions and did not embellish his evidence in any way. His recollections, for example, in relation to having received the schedule of text messages prior to trial, and his request to edit the search video, are corroborated by the records of the Office of the Director of Public Prosecutions (see [79] above).

83 The appellant's evidence was, by contrast, inconsistent in a number of respects. In addition, perhaps unsurprisingly, given the context in which it was given, the appellant tended to make sweeping generalisations as to Mr Guy's conduct of his case that did not bear close scrutiny.

84 For example, the appellant deposed in his affidavit that he was not informed by Mr Guy 'whether there should be any edits to the road side video' and that '[n]o one told me you could edit a video'. In cross‑examination he agreed that Mr Guy told him 'three to four weeks before the trial they said they were going to be looking at editing the video'. This was consistent with Mr Guy's evidence that they discussed Ms Ward's statements not being included in the edited search video, although Mr Guy said that he did not discuss in detail all the edits.[54]

85 Similarly, the appellant's evidence in his affidavit that 'I didn't realise that the jury were not supposed to hear what my female companion said to the police'[55] was directly contradicted by his evidence that 'they said they were going to remove Maria's voice'.[56]

86 Most significantly, however, as to the appellant's initial statement that he did not know 'you could edit a video' is that the search video, as tendered, clearly did include a number of edits which substantially removed the statements made by Ms Ward. Those portions which remained consisted principally of the explanation of the caution to Ms Ward and those portions relating to her request to see what was in the box (consistent with the appellant's case that they did not know what was in it).

87 In addition, while the appellant deposed, in unqualified terms, that Mr Guy did not 'adequately explain [my] rights [in relation to giving evidence]' or 'explain the implications for me if I did not elect to give evidence', the appellant's own evidence revealed otherwise.[57]

88 In cross‑examination, for example, the appellant confirmed that Mr Guy advised him that it was his choice whether to give evidence but that Mr Guy did not recommend him doing so. The appellant also said that Mr Guy explained his reasons for that recommendation, namely that 'everything was in the interview'.[58] Mr Guy's evidence in this context was that he advised the appellant that 'what he had said in the record of interview was sufficient'.[59] Having regard to the natural limitations of memory, in our view, Mr Guy's advice in this regard, as described by each of the appellant and Mr Guy, was not appreciably different; the appellant's account was simply expressed in more absolute terms.

89 In relation to his election whether to give evidence, we specifically reject the appellant's evidence that he did not 'realise that unless I gave evidence my Counsel would be limited in what he could tell the jury to things that were in evidence'.[60] Not only did Mr Guy give evidence, which we accept, that he discussed with the appellant the fact that it would be necessary for the appellant to give evidence in order to rely on certain matters (such as the photographs),[61] the appellant's own evidence at the hearing made clear that he was well aware that by not giving evidence there would be certain matters of detail that would not be evidence at trial.[62]

90 For these reasons, where they are otherwise in conflict, we prefer the evidence of Mr Guy to that of the appellant.

91 In light of that assessment, and indeed those matters in relation to which their evidence was consistent, we make the following findings of fact in relation to the conduct of the appellant's case at trial.

92 In relation to the contact between the appellant and Mr Guy, we find that:

(a) prior to 16 December 2019, all of the contact between the appellant and Mr Guy was conducted by telephone;

(b) on 4 February 2019, 5 February 2019, 18 April 2019, 7 November 2019 and 11 December 2019 the appellant and Mr Guy spoke on the telephone.[63] In those telephone calls, the appellant gave the instructions, and Mr Guy gave the advice, described by Mr Guy at [70] above; and

(c) the appellant and Mr Guy conferred twice on 16 December 2019: first, before the call‑over[64] and, later, at Greenough Regional Prison.[65] At those meetings the appellant gave the instructions, and Mr Guy gave the advice, described by Mr Guy at [71] and [72] above.

93 In relation to the appellant's instructions in relation to the charge, we find that:

(a) the appellant instructed Mr Guy that the only issue at trial was whether the appellant knew that the toolbox in his possession contained prohibited drugs;[66]

(b) the appellant instructed Mr Guy that what he had said in the search video and the EROI was correct;[67]

(c) the appellant instructed Mr Guy that the text messages disclosed as part of the prosecution brief related to a fibreglassing job[68]; and

(d) the appellant's instructions as to the above matters were not reduced to writing, in the form of a proof of evidence or otherwise.[69]

94 In relation to the schedule of text messages adduced in evidence, we find that:

(a) the State provided a copy of the schedule to Mr Guy prior to trial on 6 December 2019;[70]

(b) save for the transposition error referred to at [41] above, which was corrected before the jury, the schedule accurately reflected the screenshots of the appellant's mobile phone that formed part of the prosec[71]ion brief;71 and

95 We are not satisfied that there were 'other texts' beyond those that appeared in the schedule and which may have had a bearing on the issues at trial, as suggested by the appellant in re‑examination. That evidence was, in our assessment, quite unconvincing. The suggestion of 'other texts' formed no part of the appellant's affidavit and was only volunteered after counsel, in re‑examination, raised the prospect of 'evidence, potentially, about further text messages'.[73]

96 In any event, we find that the appellant did not instruct Mr Guy that there might be further texts which could be investigated by him prior to trial. No such proposition was put to Mr Guy in cross‑examination.

97 In relation to the appellant's election whether to give evidence at trial, we find that:

(a) Mr Guy gave the appellant advice in relation to his election whether to give evidence at trial on 7 November 2019,[74] 11 December 2019,[75] 16 December 2019[76] and twice in the course of the trial on 18 December 2019;[77]

(b) Mr Guy advised the appellant that it was the appellant's choice whether to give evidence or not; that he could give evidence but that he was not obliged to do so;[78]

(c) Mr Guy recommended that the appellant not give evidence. In that regard Mr Guy advised the appellant that the EROI was sufficient, as the appellant had made relevant denials, and that he provided an explanation for the text messages. Mr Guy was of the view, which he discussed with the appellant, that giving evidence would do nothing more than repeat and open the appellant up to cross‑examination;[79]

(d) Mr Guy did not advise the appellant that the EROI contained everything that the appellant could have said. In particular, Mr Guy advised the appellant that the photographs supplied by the appellant could not get into evidence unless the appellant gave evidence;[80]

(e) the appellant was aware that it would be necessary for him to give evidence in order to rely on certain matters at trial (such as the photographs);[81] and

(f) the appellant accepted Mr Guy's recommendation and elected not to give evidence.[82]

98 In relation to edits to the search video, we find that:

(a) Mr Guy and the appellant discussed the potential for edits to be made to the search video and the EROI. In particular they discussed seeking to have Ms Ward's evidence from the search video removed;[83]

(b) Mr Guy and the appellant did not discuss the particular edits that would be proposed to the search video;[84]

(c) Mr Guy identified proposed edits to the search video and, on 6 December 2019, provided to the State a marked up copy of the search video with a number of requested edits;[85] and

(d) the edits to the search video were substantial and excised significant exchanges between Ms Ward and the officers. The edits to the search video tendered in evidence corresponded with the portions identified by Mr Guy in his correspondence to the State.[86]

99 We turn now to the legal principles relevant to ground 1.

100 The principles relating to a ground of appeal that alleges a miscarriage of justice by reason of the conduct of defence counsel are well established. They have been summarised in this Court in a number of recent decisions, including Huggins v The State of Western Australia,[87] Jeffery v The State of Western Australia[88] and George v The State of Western Australia.[89]

101 In that regard, as the Court said in Huggins:[90]

An appellant who seeks to demonstrate that the conduct of his or her counsel caused a miscarriage of justice undertakes a heavy burden which is not easily discharged. This is a consequence of the adversarial nature of a criminal trial and the role played by counsel. Ordinarily, an accused is bound by the way the trial is conducted by counsel even if that was not in accordance with the wishes of the client. It is not a ground for setting aside a conviction that decisions made by counsel were made without or contrary to instructions or involved errors of judgment or even negligence. It is not the province of appellate courts to review the wisdom or prudence of the conduct of a trial by trial counsel. For example, an apparently rational decision by trial counsel as to what evidence to call or not to call does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant. (Citations omitted)

102 In applying this approach, the court's task is an objective one. The court does not examine whether a decision taken by the accused's counsel at the trial was, in fact, taken for the purpose of obtaining a forensic advantage or avoiding a forensic disadvantage. Rather, the court is concerned only with whether counsel's decision is capable of explanation on that basis. The question is: could there be any reasonable explanation for the decision?[91]

103 Particular issues arise in relation to the accused's choice whether to give evidence. As the High Court said in Craig v The Queen,[92] a trial may be unfair because the exercise of an accused's right to give evidence in his or her defence was effectively foreclosed by the receipt of incorrect advice.

104 Nevertheless, the High Court rejected the proposition that, where an accused is aware of the right to give evidence, any material error in legal advice bearing on the exercise of the right denies an essential condition of a fair trial.[93] In the context of a decision not to give evidence, the court considered that:[94]

At the least, demonstration that incorrect advice has occasioned a miscarriage of justice will require consideration of the relation between the advice and the decision not to give evidence.

105 The court held that an appellate court's assessment of whether the decision not to give evidence deprived an accused of a fair trial looks to the nature and effect of the incorrect advice on the accused's decision. It is not an assessment of whether an objectively rational justification could be assigned to the decision.[95]

106 We turn then to address the matters raised by the appellant in relation to ground 1.

107 While the resolution of ground 1 requires an assessment as to whether counsel's conduct of the trial, as a whole, occasioned a miscarriage of justice, it is convenient to address each of the particulars given by the appellant separately. We turn then to address the matters raised by the appellant.

Particular (a) - extent of preparation and proof of evidence

108 A number of the submissions made in support of ground 1 consisted of bald and tendentious propositions that Mr Guy 'spent insufficient time with' and did not obtain proper instructions from the appellant.[96] The appellant, in effect, sought to have this Court draw an inference that there had been a miscarriage of justice because the appellant had not met Mr Guy, face‑to‑face, until the week of his trial.

109 For example, the appellant's counsel submitted, apparently as a proposition of general application, that:[97]

an accused person objectively cannot have a fair trial in circumstances where he has not been placed in a position whereby the instructions he has given and the advice he has been given occur in a circumstance where there is nothing more than a small number of oral conversations with his lawyer.

110 To similar effect counsel submitted that 'it's hard to give someone a fair trial when you don't even see them before the week of the trial'.[98]

111 These submissions must be specifically rejected.

112 The identification of a miscarriage of justice, said to be based on the conduct of counsel, is not to be determined by reference to some a priori view as to the 'sufficient' number of conferences with a client or the manner in which instructions are provided, as if that could ever be reliably determined. The nature and extent of the preparation required for each individual case will be as varied as the cases themselves. Nothing is to be gained by a tally of the number and duration of conferences without reference to the material effect that those conferences are said to have had on the accused's trial.

113 In the present appeal, for example, counsel for the appellant was asked to identify what it was that Mr Guy did not understand or appreciate as a result of the alleged 'lack of instructions'.[99] With respect to counsel, no satisfactory answer to that question ever emerged in the appeal. While counsel made reference to the text messages, and Mr Guy's understanding of them, no particular failure on Mr Guy's part was identified. Indeed, as dealt with in the context of particular (b) below, Mr Guy understood perfectly well what the appellant's instructions were in relation to the text messages.

114 The appellant's written submissions contended that Mr Guy 'did not put specific matters to the prosecution witnesses which the Appellant had discussed with Counsel prior to trial'.[100] No such matters were identified in either the evidence or the submissions in the appeal.

115 Finally, the appellant's submission that the failure of Mr Guy to obtain a signed proof of evidence adversely reflected on his competence in conducting the trial, somehow precluded a proper exercise of the right to elect whether to give evidence, or otherwise occasioned a miscarriage of justice, should also be rejected. Whether adequate preparation for a trial requires that defence counsel have a signed proof of evidence will depend entirely upon the circumstances of the case. In many cases, of course, good practice will require counsel to have a proof of evidence in order to facilitate defence counsel's formulation of an appropriate strategy to be followed at the trial and guide defence counsel's approach to the cross‑examination of the State's witnesses and, if the accused gives evidence, facilitate the orderly unfolding of his or her evidence‑in‑chief.[101]

116 The present case was not such a case. The issue in the trial was narrow and the prosecution evidence was very limited. The appellant's account of the events was clear from the EROI, which he confirmed to be true. To the extent that there were additional matters revealed by the appellant's instructions, such as the fact that the text messages related to a fibreglassing job, those matters were both consistent with the account given in the EROI and were well understood by Mr Guy. In the circumstances of this case, the absence of a signed proof of evidence did not impinge on the appellant's exercise of his right to decide whether to give evidence.

117 None of the matters raised under this particular resulted in a material irregularity in the appellant's trial.

Particular (b) - instructions as to the prosecution case and the text schedule

118 As noted above, the appellant's instructions in relation to the text messages set out in the schedule assumed particular prominence in the appellant's submissions on the appeal.

119 In that regard the appellant's submissions included two broad contentions.

120 First, the appellant submitted that Mr Guy did not obtain instructions on the tender of the schedule itself:[102]

[A]nd bearing in mind the fact that the schedule that was then put to the jury was never shown to him. He didn't give any instructions on the actual schedule.

121 It may be accepted that the appellant did not see, nor provide instructions, as to the actual schedule that was tendered. That, however, is not to the point. The appellant did have copies of all of the original text messages, which formed part of the prosecution brief, in relation to which he gave instructions to Mr Guy.[103] In addition, save for the transposition error referred to at [41] above (which was corrected before the jury) the schedule accurately reflected the screenshots of the appellant's mobile phone that formed part of the prosecution brief.

122 As a matter of substance, therefore, the appellant was aware of, and provided instructions in relation to, the text messages contained in the schedule.

123 Secondly, the appellant submitted that he did not have the opportunity to explain to Mr Guy 'what the text messages were referring to'.[104]

124 This is simply incorrect as a matter of fact. The appellant, on his own evidence, told Mr Guy that the text messages related to a fibreglassing job (being a job referred to by the appellant in the EROI) and Mr Guy clearly understood those instructions.

125 Apart from the numerous discussions between the appellant and Mr Guy in relation to the text messages, the first being on 18 April 2018, Mr Guy's correct understanding of the appellant's instructions is made clear in his address to the jury at trial. That address included the following:[105]

Now, Mr Prosecutor made some comment about these text messages. And you can look at them yourself. But the comment:

It's clearly explained by the fact he goes to visit him to talk about fibreglassing.

They talk about - in the messages:

If it's a few days, I can go and get that fender.

So he's talking about getting fenders to fibreglass. The job is about fibreglassing. In the record of interview, you will hear that Mr Lange said:

And something has been made of the fact that he went and saw him, as opposed to calling him.

There are certainly traits amongst people where they would rather speak to someone face‑to‑face about work or whatever. Dave and Mr Lange are friends. They both usually reside in Karratha, but they haven't seen each other in a while. That's a reasonable thing to do: go visit your friends. I would suggest to you that you can't infer simply because he was going to visit him that he intended to collect some sort of drug or some discussion took place. There's no evidence in this case that a discussion of that nature took place.

126 There is no substance to the submission that Mr Guy failed to obtain the appellant's instructions in relation to the text messages. On the contrary, he clearly obtained those instructions and used them to good effect in his address to the jury.

127 Finally, we should observe that in the course of submissions, counsel for the appellant sought to draw in aid in this regard, the appellant's belated suggestion that there were 'other texts' beyond those that appeared in the schedule and that Mr Guy had made 'no attempt' to get any of the text messages beforehand.[106] In light of our rejection of the appellant's evidence in that regard, it follows, that no such 'attempt' by Mr Guy was called for.

128 Perhaps not surprisingly, there was no evidence led on the appeal as to the content of any further 'contextual text messages'.[107] When asked what the 'contextual texts' said, counsel did not know 'because no one got the phone, no one obtained the Telstra records'.[108] This was, apparently, as true of the appeal as it was of the trial.

129 In this regard, the suggestion that, had certain inquiries been made prior to trial, further evidence might have been obtained that might have assisted the defence, falls a long way short of establishing that the conduct of trial counsel occasioned a miscarriage of justice.

Particular (c) - the appellant's choice whether to give evidence

130 The appellant has not, in our view, demonstrated any material error in the advice provided by Mr Guy as to the appellant's election whether to give evidence at trial. We need not repeat our findings of fact in that regard (see [95] above). Needless to say we are satisfied that, while Mr Guy recommended that he not give evidence, Mr Guy made it clear that, and the appellant was aware that, it was his (the appellant's) choice whether or not to give evidence. The appellant exercised his right to choose whether or not to give evidence. The fact that, in doing so, he followed the recommendation made by his counsel in no way detracts from that proposition.

131 We are also satisfied that Mr Guy properly explained the reasons why he recommended that the appellant not give evidence, namely that the EROI was sufficient, as the appellant had made relevant denials, that he had provided an explanation for the text messages, and that the appellant giving evidence would do nothing more than repeat and open the appellant up to cross‑examination.

132 In this context, the case is very different to that in Jeffery, upon which the appellant relied. In Jeffrey, the only discussion with the appellant in relation to his election occurred briefly, while the appellant was in the dock, after the prosecutor had closed the State's case and shortly before the trial was to resume after the luncheon adjournment.[109] In the present case the appellant and Mr Guy discussed his election on a number of occasions, both before and during the trial.[110]

133 In Jeffery, in the absence of the appellant testifying at trial, there would have been no direct evidence to refute the allegations of the complainant.[111] In particular, there was no record of interview adduced in Jeffery, in which the accused denied the relevant allegations. In the present case the search video and the EROI contained relevant denials by the appellant as to the essential matter in issue: his knowledge as to whether the toolbox contained prohibited drugs.

134 Significantly, in Jeffery, the court concluded that 'on an objective assessment of the relevant facts and circumstances, there was, in substance, no forensic reason not to call' the appellant in that case.[112] By contrast, in the present case, given that the appellant had made relevant denials in the EROI, there were legitimate forensic reasons not to expose the appellant to cross‑examination.

135 For example, in the EROI the appellant said, almost in passing, that when he picked up the toolbox in the course of the journey 'it sort of clicked to me then. I went, that doesn't sound like tools'.[113] Defence counsel could legitimately take the view that a statement such as this, while not necessarily undermining the denials on the EROI itself, could be a fertile source of cross‑examination, with the result that, as Mr Guy put it 'there was more to lose than gain' by the appellant giving evidence at trial.[114] Moreover, in circumstances where the substance of the appellant's version of events was before the jury through the EROI, the risks inherent in the exposure of an accused to cross‑examination were, consistently with the exercise of rational forensic judgment, to be weighed against the anticipated additional benefits to be gained by giving evidence.

136 In that regard, on the evidence before this Court, the only matters about which the appellant could have given evidence to supplement the denials on the search video and the EROI would have been to personally explain that the text messages in the schedule related to a fibreglassing job, to tender the photographs of the fibreglassing job and, arguably, give evidence as to the weight of a reciprocating saw.

137 None of those matters, however, would have significantly added to the material already before the jury. Insofar as the text messages were concerned, for example, while they were not specifically addressed in the EROI, the appellant did state in the EROI that he went to his mate's house in relation to a fibreglassing job, which (as can be seen at [125] above), Mr Guy was able to relate to the texts at trial. Indeed, the fact that the explanation for the text messages was consistent with the appellant's account in the EROI, without the text messages having actually been produced in that interview, could legitimately be regarded by defence counsel as supporting the credibility of that explanation. That is, for the appellant to have provided a spontaneous explanation for messages that were only later obtained by police, might be regarded as supporting the notion that that explanation was not contrived.

138 In all of the circumstances we are not satisfied that there was any material error bearing upon the appellant's exercise of his right to elect whether to give evidence in his defence. In all of the circumstances, no miscarriage of justice was occasioned by the appellant's election not to give evidence at trial or the advice which preceded it.

139 The appellant's principal complaint in relation to the search video was focused on what he submitted were the inclusion of the 'inadmissible portions' of them.

140 Insofar as particular (d) contends that Mr Guy did not advise the appellant about the capacity for the search video to be edited or seek the appellant's instructions on it, we reject that contention as a matter of fact. As we have found at [98] above, Mr Guy and the appellant discussed the potential for edits to be made to the search video and the EROI, and in particular they discussed seeking to have Ms Ward's statements from the search video removed. The particular portions of the search video to be identified for exclusion were a matter properly within the province of defence counsel for his or her forensic judgment; the appellant's instructions were not required in relation to those matters of detail.

141 The allegedly 'inadmissible portions' identified by the appellant in relation to this ground fell into two broad categories:

(a) those portions of the search video in which Ms Ward's voice can be heard; and

(b) those occasions upon which the appellant responded to questions by saying 'no comment'.

142 While it is not immediately apparent to us that these passages were inadmissible, we will assume, for the purposes of this ground, that they were, strictly, inadmissible. The issue posed by this ground is, whether, by reason of their admission as part of the evidence at trial, a miscarriage of justice resulted. Insofar as the ground alleges that the admission of those parts of the search video was a result of counsel's decision, the question for this Court is whether there could be a reasonable explanation for the decision.

LANGE -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 165 (9 September 2021)

At a glance

Court

Decision date

Before

Source

Judgment (315 paragraphs)

Particular (a) - extent of preparation and proof of evidence

Particular (b) - instructions as to the prosecution case and the text schedule

Particular (c) - the appellant's choice whether to give evidence

Legislation Cited (1)

Cases Cited (6)