2 PULLIN JA: The applicant was indicted on a charge that on 26 January 2002 at Secret Harbour he wilfully murdered his estranged wife Leisa Jane McSwan. On 26 June 2003 after a trial before Justice Heenan and a jury he was convicted of murder. He was sentenced to a mandatory life term of imprisonment with a minimum of 10 years before he would become eligible for parole.

3 The applicant has filed applications seeking leave to appeal against his conviction and his sentence. These applications were filed out of time so the applicant seeks an extension of time to make the applications.

4 Mrs McSwan died in the kitchen of her home at Secret Harbour at about 3.30 am. The cause of her death was a penetrating stab wound to the back. The applicant, who lived elsewhere, broke into the house. The victim's niece, a Mrs Cohen saw the applicant take a knife from a drawer and stab the deceased on two occasions. Mrs Cohen fled from the house and called a neighbour. A Mr Lowden, the neighbour, arrived to find the applicant bending over the body of the dying woman, pleading with her and telling her that he loved her and asking her to wake up. She was unresponsive and probably unconscious. Mr Lowden then saw the applicant calmly leave the kitchen. The applicant went to his vehicle. Several witnesses saw him drive away. The post-mortem examination of the victim showed that at least seven blows with the knife were struck causing 11 penetrating wounds and it was the wound to the shoulder, which descended through the spine, the lung and severed the aorta which caused her death.

5 The applicant went from the house to the Golden Bay service station. He walked in and asked a young man there to call an ambulance and made an 000 call. He then called his father and his brother. He appeared to the service station attendant to be "relaxed" (t/s 156). He then drove to a Casuarina service station where he was apprehended by police and taken to the Rockingham Hospital. A sample of blood was taken from him at about 5.30 am that morning. He had consumed alcohol and said he had taken Mogadon tablets which contain benzodiazepine. The doctor who took the blood sample, a Dr Rothstein, was not available to give evidence at the trial. He was a second year medical officer. His notes however, were identified and read to the court. A Nurse Gray, who observed the applicant on his admission to hospital, noted nothing out of the ordinary about the applicant's condition [t/s 268] and at 6.35 am by applying the

"Glasgow coma scale" test he was fully conscious. Emeritus Professor Paterson was called as an expert by the prosecution and he gave evidence that Mogadon may cause "paradoxical rages" which cause persons consuming benzodiazepine to show outward signs of rage or anger. However, Dr Kay, a psychiatrist called by the applicant, gave evidence that it was not likely that the applicant suffered from paradoxical rage.

6 The applicant gave evidence that he had begun drinking and had taken the benzodiazepines on the afternoon before the stabbing. He said that having consumed alcohol and taken the Mogadon tablets he went to a service station to obtain duct tape, had taken more benzodiazepines as he was driving round, went to the Canning Bridge river foreshore, connected up the hose to the exhaust of the car, sat in the car, took more alcohol, took more benzodiazepines and was interrupted in his activities by someone who has never been identified. He said he wrote a suicide note at about 2.30 am, that is about 50 minutes or so before the stabbing. He then gave evidence that he drove off towards Secret Harbour and said that he took more benzodiazepines in alcohol as he drove along. He said that he could not remember killing his wife.

7 In relation to the proposed conviction appeal the applicant, who represents himself, puts forward one ground alleging that he was "not given a fair trial and was denied natural justice because of the incompetence and lack of preparation" by the barrister who represented him at the trial and who had been appointed by the Legal Aid Commission. Particulars were given of this ground and insofar as they relate to the conduct of the case by his counsel, they consist in the main of complaints about the failure to call certain witnesses and a failure to ask for an adjournment due to lack of preparation by his counsel.

8 Before considering the particulars of the ground of appeal in detail, I should refer to what effect the incompetence of counsel might have when it is considered as a ground of appeal. The most recent authority on the subject is Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662. The sole ground of appeal entertained by the High Court in that case was that the appellant was not tried fairly because of the incompetence of trial counsel. The criticism was that trial counsel failed to advance a particular theory of the case consistent with his client's innocence. Hayne J (McHugh J agreeing) said at [18]:

"As McHugh J pointed out in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at 149 [79], '[t]he critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred'. The conduct of counsel remains relevant as an intermediate or subsidiary issue because the issue of miscarriage of justice in a case such as the present requires consideration of the two questions which McHugh J identified in TKWJ. Did counsel's conduct result in a material irregularity in the trial? Is there a significant possibility that the irregularity affected the outcome? But the ultimate question is whether there has been a miscarriage of justice."

"The evaluation that has to be made is whether the conduct in question produced a miscarriage of justice, that is, whether it deprived the accused of a chance of acquittal that was fairly open. As Gaudron J in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [26], [27] said:

'[W]hether 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'."

10 In D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 79 ALJR 755 at [196] Kirby J said that it is well settled that neither counsel's incompetence nor acting contrary to instructions "will, of itself, attract appellate intervention".

11 The difficulty facing an appellant alleging that there was a miscarriage due to his trial counsel's incompetency begins with the fact that the adversarial system is based upon the general assumption that parties are bound by the conduct of their legal representative. See Ali per Gleeson CJ [7]; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [8]. Usually the conduct of trial counsel cannot be fairly evaluated without knowledge of the trial counsel's brief and the instructions given to counsel. This is usually unavailable to the appeal court: Ali [7]. The brief was not available in this case although there was some evidence of the instructions which were given.

12 I now turn to the particulars the applicant has provided to support his proposed single ground of appeal against conviction.

13 The applicant's first particular contends that he requested his barrister to adjourn the trial on "many occasions" and that counsel "refused to take his ... instructions and prejudiced his chances of a fair trial." The applicant filed an affidavit saying that he asked counsel two or three days before the trial to seek an adjournment, because he was concerned that his counsel was not prepared for trial. The applicant in his affidavit also says that his counsel advised on 12 June 2003 that the DPP had not provided him with a complete "submission of their case and evidence". The applicant further deposed that his counsel "continued to assert that he was ready for trial and that [his] case was not prejudiced in any way". The applicant also says that he gave "contact details" of certain witnesses and the reasons why they would assist in defending the case. The reasons were not disclosed in the affidavit. I refer in detail to those proposed witnesses below. The applicant also says in his affidavit that he again instructed counsel to seek an adjournment on the morning of the first day of trial "but he refused to accept my instructions insisting that the trial could not be adjourned and that he was prepared". The applicant also testifies that his counsel "further failed to secure independent expert medical evidence and witnesses prior to trial which I had repeatedly requested.

14 An affidavit sworn by his trial counsel has been included in the appeal book. I do not know who filed this affidavit, but in it counsel denies that he had instructions to adjourn the trial and denies that he was aware of any witnesses who would have assisted the applicant's defence. It is impossible to resolve the dispute between the applicant and his counsel. I will however proceed by assuming (without finding) that the affidavit of the applicant correctly records what happened.

15 The issue to be determined is whether the failure to ask for an adjournment or the failure to call witnesses led to a miscarriage of justice. These points are dealt with in the other particulars to the proposed ground of appeal against conviction and after considering all of those particulars, I will reach a conclusion about whether there was any miscarriage of justice.

16 The second particular was that his counsel "failed to lodge an appeal in time". As the applicant now has his opportunity to establish whether his appeal should be heard, there is no need to consider this particular further.

17 The next two particulars complain about counsel's failure to issue a subpoena and serve it on Mr Lowden, who was resident in Queensland. As mentioned above, Mr Lowden was a neighbour who was called on by Mrs Cohen to go to the house after she fled. At the beginning of the trial it appeared that Mr Lowden may not have been available to give evidence. However, he was found and he did give evidence by video-link. I need not therefore consider these two points any further.

18 The fifth particular complains about a failure to adequately prepare the defence case and to call or cross-examine "many key witnesses" and reference was made to the trial Judge's comment that he was not impressed with the preparation for trial "on either side" (t/s 33). His Honour said that:

"Of all the matters that have so far been raised the potential evidence of Dr Kay on the issue of depression is perhaps the most far-reaching".

19 However Dr Kay was called by the applicant's counsel and gave evidence about the applicant's depression and the effect that alcohol and Mogadon would have on the formation of intent, and as a result I do not have to consider this aspect of the particular any further. The applicant in his application for leave to appeal against conviction refers to nine other witnesses who he says could have given evidence. Mr Lowden is one of those witnesses. I have referred to him above and I need say no more about him. As to the others, I comment as follows:

• Angela Vienzioni. The respondent informed the Court that the applicant mentioned her name in his evidence-in-chief as a person with whom he shared accommodation after he moved out of the matrimonial home. The applicant does not say what admissible evidence that person could give.

• Stephen McGellin. The respondent informed the Court that the applicant mentioned this person in the course of cross-examination as a visitor who turned up with his girlfriend earlier on the day of the killing. The applicant does not say what admissible evidence this person could give.

• Candice Blanchard. The State in its submissions says that this person had given a statement, and the statement appeared in the prosecution brief. She was a customer at the Casuarina service station when the applicant entered, apparently intoxicated, with blood on his feet and hands. The station attendant Burns, whispered to her "he says he's just killed his wife" and Blanchard reported this to a security guard outside the service station. The substance of this evidence was given by the attendant Burns. The applicant does not say what further admissible evidence this person could give that would have assisted his defence.

• Karen Monk. This person's affidavit appears in the appeal book. The affidavit says that in the time she knew the applicant and the victim she had never seen any disturbing behaviour from the applicant towards his wife. She deposes to the fact that on one occasion, apparently long before the day of the killing, there was an argument between the victim and her mother and that the applicant tried to intervene and calm his wife down and that he was abused by his wife. She also deposed to her disappointment with the attitude of the victim towards her husband. She also deposes to the fact that she saw the applicant's young son the day after the killing. She deposes to the fact that he was "so happy and friendly" that she was of the opinion that if he had witnessed any of the events "he would have mentioned something to myself". Her affidavit at its highest provides a character reference for the applicant and offers an opinion that the applicant was provoked. That testimony would not have advanced the defence case which was not one of provocation but a lack of intent due to a combination of liquor, drugs and depression.

• Shirley Campbell and Jackie McNamara. The applicant does not say who these people were or what admissible evidence they could give.

• Dr Richard Langham. This witness was in fact called by the defence and gave evidence on a voir dire.

• John McSwan (father). The applicant's father gave a statement which appeared in the prosecution brief, and according to the State the statement indicated that he had received a call from the applicant about 20 minutes before going to the crime scene to find the police in attendance. He commented on the applicant not being a violent man. The applicant does not say what admissible evidence this person could give.

20 The next particular is that counsel failed to issue a subpoena or to make concerted attempts to contact the doctor who saw the applicant in hospital. This particular also alleges that his counsel "failed to obtain statements and clarification from staff at the PathCentre who allegedly analysed the pathology of the applicant's blood that was subsequently destroyed". It is true that the applicant's sample of blood was destroyed and was not available at trial, but the result of the test was given in evidence. The applicant has not said what statements or clarification could have been obtained from the PathCentre staff. The applicant does not say what evidence Dr Rothstein could have given in addition to his notes which were admitted into evidence. A nurse who observed the applicant at the hospital did give evidence.

22 I next refer to the eighth particular. I will deal with the seventh particular later because that does not complain about competence of counsel. The eighth particular alleges that his counsel failed to:

"... act expeditiously in obtaining expert medical opinions in relation to the [applicant's] state of mind as a result of intoxication and drug overdose. [Counsel] failed to obtain these reports although he had Dr Paterson's report in April 2003, some six weeks before the trial."

23 There were submissions made by both counsel before the trial began, during which the applicant's counsel said that he was seeking an opinion as to the conclusions and effect of Mogadon and alcohol, as a result of which the trial Judge asked why such matters were being raised on the morning of the trial. His Honour commented that it seemed extraordinary that the essential issue of contention had not been the subject of expert independent opinion before that time. It has not however, been shown that any expert evidence would have produced evidence different from that given by Emeritus Professor Paterson and Dr Kay. Evidence about the effect of Mogadon and alcohol on intention was given by Dr Kay. Dr Kay had examined the applicant on 25 May 2002 and gave evidence as to his mental state at the time of the commission of the offence. Dr Kay concluded that the applicant was suffering from major depression and he expressed the opinion that depressive illness would not deprive the applicant of the ability to form an intention. He also expressed the opinion that the combination of nitrazepam, alcohol and depression would have had a marked effect upon the applicant's capacity to understand the consequences of his actions to control aggressive impulses and also expressed the opinion that "paradoxical rage" did not occur in this case. Under cross-examination he agreed that the applicant had the capacity to form an intention and agreed that a reasonable explanation was that the applicant stabbed his wife in anger because she was not responding to his entreaties as he wished. Dr Kay said that if the applicant had indeed taken half a bottle of bourbon and 15 Mogadon tablets, he would have been unconscious. The jury convicted the applicant of murder rather than wilful murder and so they must have been left in doubt about the applicant's intention to kill his wife.

24 Thus it can be seen that medical evidence bearing on intention was led by the applicant's trial counsel. It has therefore not been demonstrated that any miscarriage occurred following upon the initial lack of preparedness.

25 The next particular alleged that both counsel for the applicant and for the prosecution "failed to argue the merits of section 79C(a) and (d) of the Evidence Act in relation to the investigation and evidence of the transportation of the defendant to hospital". This appears to be a reference to the application of s 79C of the Evidence Act to the notes which were made by Dr Rothstein who was the treating doctor at the time the applicant was admitted to hospital. Submissions were made by both counsel about the application of the section and his Honour then ruled that the notes made by Dr Rothstein could be admitted under s 79C. No complaint is made about that ruling. There is therefore no merit in this particular.

26 The final particular alleges that "a notice of disclosure of evidence was not submitted by the prosecution or requested by" his counsel. The applicant referred to the trial Judge's comment at t/s 30 that "the question is whether there has been sufficient disclosure of the evidence which he is to give to allow it to be considered by the accused and his counsel." It is clear that there was late disclosure of some evidence, but as his Honour observed, the question was whether there was sufficient time available to the applicant and his counsel to consider the evidence. After hearing submissions about when disclosure was made, his Honour then adjourned to allow the applicant's trial counsel to take instructions primarily concerning the then unavailability of the witness Lowden. After the adjournment, his Honour discussed the subject of the witness Lowden and then asked about other matters that were debated before the adjournment (t/s 34). Counsel for the applicant made submissions about the inadmissibility of certain evidence, explained that Dr Kay would be supplied with all necessary material to enable him to prepare a report but made no submission that prejudice was caused by the late disclosure of any evidence. The applicant does not identify any now. As a result, I consider there is no merit in this particular.

27 I said earlier in my reasons that I would proceed on the assumption that the applicant did ask his counsel to apply to adjourn the trial and did give to counsel the names of witnesses who he wanted to have called. As a result of the reasons which I have given in relation to the particulars of the ground of appeal, the applicant has not satisfied me that there was any miscarriage of justice. In my opinion there were no grounds for an application for an adjournment and so even if the applicant gave instructions to ask for an adjournment and those instructions were not followed, there was no miscarriage of justice. Despite the lack of preparation before the trial commenced, counsel covered the issues which had to be covered and arranged for Dr Kay to be briefed and to give evidence.

28 Finally, particular 7 was not a complaint about counsel at all, but alleged that there was a conflict disclosed by the learned trial Judge, because he had for some years sat as a member of the Medical Board with Emeritus Professor Paterson. The applicant claims that he gave instructions to seek an adjournment as a result of this association. In my opinion there is no merit in this particular. In my opinion a fair-minded lay observer would not reasonably apprehend that the Judge might not bring an impartial mind to the conduct of the case because he had this professional association with Emeritus Professor Paterson. See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].

29 As a result, I consider that none of the particulars to the proposed ground of appeal against conviction, nor the ground itself, has any merit.

Application for leave to appeal against sentence

30 The applicant was sentenced to life imprisonment. This was a mandatory sentence. The task of the trial Judge was then to fix a minimum term before the applicant became eligible for parole. By virtue of s 90(1) of the Sentencing Act 1995, an offender who is sentenced to life

imprisonment for murder must serve a minimum period of between 7 and 14 years before being eligible for release on parole. The decision as to the length of the minimum period involves the discretionary judgment informed by applying to the case the ordinary principles of sentencing: Sherratt v The Queen [2000] WASCA 112; (2000) 112 A Crim R 177 at [39]. In fixing the minimum period the court is to have regard to the circumstances of the offence, the circumstances personal to the offender, whether they be aggravating or mitigating in their effect insofar as they bear upon the length of the period which must be served before the offender might be released: Sherratt (supra) [42].

31 The applicant alleges that the learned sentencing Judge erred in law by failing to give any, or sufficient weight or consideration to matters personal to the applicant. In my opinion his Honour did take into account all aspects of the applicant's health and background, and the effect of the alcohol and Mogadon tablets consumed by the applicant. His Honour noted that he had suffered from depression. In my opinion there is no basis for the applicant's complaint about the failure to take into account personal circumstances.

32 The applicant also contends that no account was taken of the applicant's remorse after the offence. He says in written material put before the Court that he is remorseful and it is true that his Honour made no reference to this factor. However, in my opinion this has not led to any miscarriage of justice. This is because even if leave were granted and the appeal allowed on that ground, a re-sentencing by this Court, taking into account all of the personal factors which were referred to by his Honour, and taking into account the applicant's expressed remorse for his conduct, would not have produced any different result. As a result, I consider that there is no merit in the proposed appeal against sentence.

33 The conviction for murder was recorded on 26 June 2003 and he was sentenced on 28 July 2003. The application for leave to appeal against conviction was not lodged until 24 February 2004 and the application for leave to appeal against sentence was lodged on 28 February 2005. The applicant seeks an extension of time in relation to both of his applications. In view of the lack of merit in any of the grounds of appeal, I would refuse an extension of time in which to apply for leave to appeal against his conviction and would similarly refuse an extension of time in which to apply for leave to appeal against his sentence.

34 LE MIERE AJA: I would refuse an extension of time in which to apply for leave to appeal against conviction and would refuse an extension of

time in which to apply for leave to appeal against sentence for the reasons stated by Pullin JA.

McSwan v The State of Western Australia [2005] WASCA 128

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (82 paragraphs)

McSwan v The State of Western Australia [2005] WASCA 128 (6 July 2005)

McSWAN -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 128 (6 July 2005)

Parties

Cases Cited (10)