Outram v R

Nature of proposed appeal 5The notice of application for leave to appeal filed 13 June 2013 identifies two grounds: "1. The failure of trial counsel to call evidence of good character at the applicant's trial occasioned a miscarriage of justice. 2. The applicant's trial miscarried because of the incompetence of his trial counsel in: (a) failing to properly cross-examine the complainant; (b) failing to properly adduce evidence from the applicant; (c) failing to ensure that only relevant material was contained in the ERISP interview conducted between the applicant and the police." 6The first ground, based on failure to call evidence of good character, was at the forefront of the applicant's written and oral submissions. Central to it was the claim that character witnesses who were ready, willing and available to be called at the trial were not called. 7In support of those grounds, the applicant swore two affidavits, on which he was cross-examined. The entirety of his evidence in chief in support of his grounds was as follows: "2. When I was first charged I applied for legal aid. In early 2010 my case was allocated to Margaret Zahra, a lawyer employed at the Gosford office of Legal Aid. I saw Ms Zahra a number of times. I gave her instructions that she wrote down. I recall that during our meetings we discussed getting witnesses to my good character. 3. In about September 2010 my case was transferred to Mr Brian Quinn, a solicitor in private practice in Gosford. He briefed Mr O'Sullivan to appear for me. 4. I saw Mr Quinn a lot more than Mr O'Sullivan. I recall on at least two occasions telling them that I could arrange for character witnesses to attend my trial. I also tried to give them instructions. I recall writing everything I could think of out for them. 5. Both Mr Quinn and Mr O'Sullivan told me that I did not need to call character witnesses because I could not be convicted. I had never been involved in a trial before and accepted this advice. 6. After I was convicted but before I was sentenced I was able to obtain new lawyers. I told the new lawyers that there were people who could speak of my good character. The lawyers told me to ask for references and I did so. A number of people wrote references about me that were tendered in the sentence hearing." 8The applicant also served an affidavit of his fiancée, Ms Dale Littler, who said that she was prepared to give evidence, although reluctant to do so. She recalled Mr Quinn saying that character witnesses were not needed. 9It may be accepted that the applicant told his solicitor that his recollection, in June 2013, was that more than two years earlier his lawyers had advised him that he "could not be convicted", and for that reason had not advised that character evidence was necessary. However, I think it must be said that it fell to his solicitor in 2013 taking that evidence to test the applicant's recollection of such inherently unlikely advice very carefully. I return to this below. 10In opposition, the Crown served affidavits of the solicitor Mr Quinn and barrister Mr O'Sullivan who had been retained by the applicant at the trial (they had been released from obligations of confidentiality by the applicant). Both men denied advising the applicant that he could not be convicted, or that it was unlikely that he would be convicted. Both denied saying that there was no need to call character witnesses for that reason. 11Those four witnesses were cross-examined, efficiently and relatively briefly, in this Court.

Nature of Crown and defence cases at trial 12There was a strong Crown case at trial. The complainant told the jury that on 3 December 2009 she returned home to find the applicant standing outside her home, not wearing pants. She formed the view he was drunk. It is not necessary to detail all of the evidence as to what occurred throughout the balance of the afternoon and evening. It suffices to say that she claimed that he assaulted her, pulling off her lower clothes, penetrated her digitally, struck her head with his own head, and lifted her by her breasts and twisted them. She said that he said he was getting a knife, at which point she ran outside, wearing only her shirt. Two uniformed police officers arrived and went to her aid. One officer identified the applicant carrying a knife (the other, for medical reasons, was not called at the trial). 13There was a triple-O call made from the house at 12.26am, in which the applicant could be heard calling "ya bitch, ya whore". The Crown contended that the complainant could be heard in the recording saying "don't hurt me", although that did not appear in the transcript, and the recording was not in evidence in this Court. 14The complainant's jeans and underwear were found in her house. She had been wearing three quarter length jeans, with a zipper and button at the waist. The jeans were found still buttoned and zipped up, consistent with them having been pulled off her forcibly. 15The complainant was examined by a doctor at around 5am that morning, who observed bruising to her forehead, multiple bruises throughout her body including to both breasts, abrasion to her vagina, and no injuries consistent with offensive acts (such as injury to her knuckles). There was no delay in her making complaint of sexual assault. 16The applicant was found with bruising to his head consistently with having struck the complainant's head with his own. 17The defence case was that there had been consensual sexual activity in the afternoon when the complainant returned, that she then became intoxicated and attacked him, and threatened to telephone the police. He said in effect that she opened the door when the police arrived, and began to scream, leading to his arrest. He said that the complainant had had a fall at work which accounted for the injuries to her body. He denied having possession of any knife and said the police officer was mistaken. Although interviewed by police that evening, he did not say that the complainant had been drinking. He said that "she was hysterical and going off her brain for no basic reason whatsoever". 18The defence case was more elaborate than indicated above, but on this application for an extension of time, it is not necessary to refer to all of its nuances. It was common ground when the application was heard that the Crown had a strong case. The Crown described it as "overwhelming", and counsel for the applicant described it as an "obvious[ly] strong Crown case".

Applicable legal principles for extension of time 19It would flout the legislative command if no regard were had to the signal breach of the time periods in this application. This Court has repeatedly and properly emphasised that time limitations cannot be ignored. As was said in Ngo v R [2013] NSWCCA 142 at [83] (Simpson J, Johnson J and Grove AJ agreeing): "Time limits are fixed by legislation for the making of applications (of any kind) for good reason. While it is relatively commonplace for this Court to permit a substantial degree of latitude in sentencing matters, there must be boundaries. The Court will, especially in cases of substantial delay, look for a satisfactory explanation for the failure to pursue a remedy at the appropriate time: see Edwards v R [2009] NSWCCA 199; Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424." 20In Darwiche v R [2011] NSWCCA 62; 209 A Crim R 424 Johnson J (with the agreement of McClellan CJ at CL and James J) referred at [38]-[39] to the undoubted fact that "the longer time passes without an appeal being filed, the more solid ought be the expectation of the community, witnesses, victims and the families of victims that the criminal proceedings are over" as a significant consideration to be taken into account on a leave application. His Honour also referred to the interests of justice including those of the Crown (representing the community and the administration of justice generally), as well as the interests of the applicant for leave. 21These authorities more recently were reviewed in Abdul v R [2013] NSWCCA 247 at [31]-[53], where it was concluded (in a case where there had been a change in the law subsequent to the trial) that "all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result". When considering the question of substantial injustice, the Court said that: "This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a 'more summary fashion' than would be done in an application for leave to appeal that was brought within time." 22In Alpha v R [2013] NSWCCA 292 at [1] and [15] and in Golossian v R [2013] NSWCCA 311 at [28] this Court confirmed, if it was not already clear, that the same principles applied in all cases where an extension of time is required. 23That said, the legal system places a high value on fair procedure and correct outcome: Sinkovich v Attorney General for NSW [2013] NSWCA 383. As RA Hulme J observed (in respect of rule 4 of the Criminal Appeal Rules) in Bourke v R [2013] NSWCCA 293 at [41], "this Court is always alive to the possibility of a miscarriage of justice and will readily intervene when it is detected." 24Here it is clear that there is substantial and largely unsatisfactorily explained delay, and the interests of the community and of the victim are relatively strong. However, if indeed the applicant had character witnesses to hand who were not called because the lawyers appearing for him at trial were so confident of his success that they saw no need to do so, then there would have been a substantial miscarriage of justice. That indeed is the nature of the claim which he brings, supported by affidavit evidence. The Crown expressed concern that, through alleging incompetence of counsel, the ordinary strictures against fresh or further evidence have been bypassed, as a result of which it has been necessary for four witnesses (none of whom are from Sydney) to be cross-examined; cf KLM v Western Australia [2009] WASCA 73; 194 A Crim R 503 at [97]. That may be difficult to reconcile with the application being dealt with in a "more summary fashion" than would have been the case had it been brought within time. However, given the stark disparity in the testimony of the applicant and his former lawyers, and the importance to the applicant and to the administration of justice more generally that the substantial miscarriage of justice to which he has sworn be ventilated, it was necessary and appropriate for that to occur. 25It is also necessary to make findings of fact - for if the applicant is right, he has been denied a fair trial and the recollections of his former lawyers are in error.

Findings 26I do not accept the evidence of the applicant that he was told that he could not be convicted. First, such advice is inherently unlikely to be given even in respect of the weakest Crown case which the Director of Public Prosecutions has determined to commence and maintain. 27Secondly, as noted above, it was common ground when the application was heard that the Crown case was strong (as to which see further below) - it was not a sexual assault based on "word on word" disputed testimonial evidence, for there was also the recorded triple-O call, the police officer who saw the applicant pursuing the complainant and holding a knife, the complainant's jeans found still buttoned and the medical evidence consistent with the assault of which the complainant testified. The applicant submitted in this Court that the Crown case had in truth been strong, and yet that his own lawyers had told him that he could not lose. Such a situation is certainly conceivable, but it is relatively improbable. 28Thirdly, the applicant was equally adamant that he had never been advised about pleading guilty and receiving a reduction in his sentence. His cross-examination included the following: "Q. Did anyone ever talk to you about pleading guilty? A. No, they did not. Q. Never? A. Never, it was never brought up. Q. What about when you spoke to Legal Aid, did anyone there talk to you about pleading guilty? A. No. Q. Never? A. Never. Q. Did anyone ever mention to you a 25 per cent discount if you pleaded guilty? A. No they didn't. Q. And I'm including Legal Aid there, no one at Legal Aid said that to you? A. No, there was never any offer made to me if I plead. Q. Are you clear about that? A. I'm positive. Q. Positive about that? A. Yes." 29But the applicant was, indisputably, advised of precisely that, and repeatedly. A note of that advice, given early (prior to Messrs Quinn and O'Sullivan being retained) was in evidence. There can be no doubt that the applicant had been advised by the solicitor previously acting for him that he would receive a discount for a plea of guilty, in light of his written instructions on 29 June 2010. The advice was plainly appropriate, having regard to the evident strength of the Crown case. And in light of the demonstrated fallibility of the applicant's recollection and the obvious strength of the Crown case, there is likewise no reason to doubt the inherently plausible statement in Mr Quinn's letter written shortly after the trial that he too had advised of that matter: "Strong Crown case, Mr Outram was given advice and there was an offer of a lesser charge to a plea at one stage but he maintained his innocence." 30Fourthly, evidence was tendered at his sentencing hearing by Ms Littler that the applicant was "dazed", "stressed" and had a tendency to "scramble" conversations in the weeks leading up to the trial. His evidence in 2013 about conversations which took place more than two years ago is unlikely to be more cogent. When confronted with this, Ms Littler accepted that there were times when his state of mind accorded with her evidence at the sentencing hearing. 31Fifthly, Messrs O'Sullivan and Quinn were experienced practitioners in the area of criminal law. I accept the Crown's submission: "To suggest that any experienced lawyer would advise an accused person not to bother with potentially useful evidence because he could not be convicted defies common sense. It is inconceivable that any experienced lawyer would tender such advice." 32Accordingly, I reject the primary thrust of the applicant's evidence - that the reason no character evidence was called was because he had been advised that he could not lose. On the evidence before this Court, that did not occur. I have reached that conclusion without relying on the demeanour of any witness while giving evidence. 33That conclusion is not sufficient to resolve ground 1. For, although I cannot accept that the reasons for the failure to call character evidence were those put forward by the applicant, the question why that did not occur remains outstanding. 34Precisely why no character evidence was called at the applicant's trial can never be known with certainty; that is a consequence in large measure of the fallibility of human recollection, exacerbated by the delay in bringing this application. I do not find it surprising that the witnesses' recollections had faded. I turn now to what is established on the evidence in this Court which bears upon the question. 35First, it does seem clear that Ms Littler supported the applicant throughout the preparation for, and during, the trial. However, it is also clear that she was reluctant to be a witness. She maintained in her affidavit that she would have done so if she had been asked, but in cross-examination she accepted that Mr O'Sullivan asked her to give character evidence, and then said: "Q. What did you say to that? A. That I don't really want to, but if I have to I will. I'd rather be in the courtroom with Darren. Q. So Mr O'Sullivan specifically asked you if you were prepared to go into the witness box and give character evidence on Mr Outram's behalf? A. Yep. Q. And your priority was to be a support person in the courtroom. A. Yes. Q. Didn't you tell him that you didn't want to go into the witness box? A. As I just said, I said I didn't want to, but I would if I had to." 36It would have been open for the applicant's lawyers in 2011 to form the view that a relatively unenthusiastic current partner of the accused, who was very visibly attending the trial and supporting her partner, would be more effective in that way than through reluctantly giving testimonial evidence. I do not mean to convey any personal criticism of her, but she was not an impressive witness when cross-examined. 37Secondly, the extent to which other witnesses would have been prepared to assist, having been told of the medical evidence, the triple-O call, and the obsessive telephone calls that afternoon, is also unclear. Eight character references were tendered on the sentence proceedings. Just why none of this was adduced is not clearly established on the evidence. Ms Littler was the only character witness who swore an affidavit in this Court, her lack of enthusiasm was apparent, and there is no sound reason to conclude that any of the other potential witnesses would be less unenthusiastic. 38Thirdly, there can be no suggestion that Mr O'Sullivan was oblivious to the potentially powerful advantage to an accused of good character. He said in cross-examination that he was aware of its importance, and as much was demonstrated by the course of the trial. In the Crown case, Mr O'Sullivan asked one of the police officers to confirm the applicant had no criminal convictions. Immediately thereafter, Mr O'Sullivan sought and obtained a standard direction as to good character from the trial judge. That direction was therefore heard by the jury before the applicant gave evidence. It was repeated in the summing up. It was, to say the least, open to counsel then appearing for the applicant to make the forensic decision that his client's interests were best served by obtaining that direction at the first possible opportunity. Mr O'Sullivan candidly admitted that he lacked an actual recollection of his thought process and was speculating, but he said in his affidavit that he thought he might have applied for the ruling when he did (something which seems to have surprised the trial judge) because he had been sceptical that there would be any character evidence forthcoming. 39Fourthly, there was disputed evidence that the applicant had offered to provide personal references, and his counsel had said "good, bring them to court, I will talk to them". That did not occur. Mr O'Sullivan said that had they been provided, "I would have spoken to them first and if I thought that they would be appropriate to be called, yes I would have called them". Aside from the applicant's evidence to the effect that his lawyers told him not to bother because he could not be convicted, which I do not accept, that is the best evidence as to what occurred, and it is inherently plausible. 40Fifthly, it would seem that Mr Quinn made little or no effort himself to meet or see those potential witnesses. It may be that it was understood that it was to be left to Ms Littler to procure their attendance at the right time so that Mr O'Sullivan could speak with them and determine whether they would assist, a course that would be far from ideal. The precise circumstances are quite unclear, not least because Mr Quinn seems to have made few notes.

Incompetence of counsel - principles 41The applicant maintains that he was of good character, that there were witnesses available to give evidence of that fact at the trial, one of whom (Ms Littler) gave evidence of that fact, but that that did not occur. The applicant said that that gave rise to an unfair trial amounting to a miscarriage of justice, or alternatively to an irregularity that may have affected the result of the trial. The applicant contended that the proviso had no application in either of those circumstances. 42The applicable principles have most recently been reviewed in this Court in Monteiro v R [2011] NSWCCA 113, PFC v R [2011] NSWCCA 275 and Winter v R [2013] NSWCCA 231. All three judgments confirmed the continuing applicability of what Gleeson CJ had said in R v Birks (1990) 19 NSWLR 677 at 683 and 685: "As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case ... ... As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. ... However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 43The question ultimately is whether what occurred or did not occur at the trial occasioned a miscarriage of justice: TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [79] (McHugh J); Ali v The Queen [2005] HCA 8; 214 ALR 1 at [18] (Hayne J); Matthews v R [2013] NSWCCA 187 at [62]. In TKWJ the High Court found there had been no miscarriage of justice where there had been a failure to adduce evidence of good character in a sexual assault trial, but in quite different circumstances from those present. There the decision was made consciously so as to avoid what had been threatened by the Crown, namely, calling evidence of the complainant's sister about outstanding charges that had been laid against the accused which were to be the subject of a separate trial. 44Gleeson CJ said (at [8]) that the decisions of trial counsel as to what evidence to call, or not to call, could "rarely be the proper concern of appeal courts". Gaudron J, with whom Gummow and Hayne JJ agreed, said (at [29]) that failures by defence counsel had traditionally been said to involve "flagrant incompetence", "egregious error", "extreme conduct" or "significant fault", but noted that the ultimate question was that posed by s 6(1) of the Criminal Appeal Act 1912, namely, whether the act or omission resulted in a miscarriage of justice: at [30]-[31]. McHugh J made the same point at [83], after saying at [79]: "The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, 'whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue'. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the trial? Second, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, 'it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence'. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial." 45McHugh J gave as an example at [85]: "If counsel omits to call a material witness because of a memory lapse or a breakdown in communication and there is a significant possibility that the omission affected the outcome, the appellant will usually establish that a miscarriage of justice has occurred." 46His Honour also said (and the applicant relied upon this) that in many such cases, the proviso was inapplicable: see at [71] and [72]. Gaudron J dealt with the question of the proviso more concisely, but seemingly proceeded on the basis that the proviso could apply in the case where counsel's decisions had contributed to the miscarriage of justice: at [25]. On the view that I take, it is unnecessary to address the question any further. 47More recent decisions have emphasised that it is not ordinarily for the appellate court to review the decisions made by counsel at trial: Nudd v The Queen [2006] HCA 9; 162 A Crim R 301 at [8]; KLM at [51].

Resolution of this application 48This is not an appeal. It is an application for a substantial extension of time, unaccompanied by any cogent explanation for the delay, and supported by testimonial evidence that I have formed the view cannot safely be relied upon in key respects. That of itself is not sufficient to resolve the application; in every case it remains necessary to consider the proposed appeal on its merits. 49On the principal proposed ground of appeal, one is left with a very strong Crown case, key elements of which (the triple-O telephone call, the photographic evidence of the complainant's jeans, the complainant being found scarcely dressed in the early hours of the morning fleeing from the applicant, the medical evidence of her injuries and the evidence of the police officer who said he saw the applicant with a knife in his hand) make this very different from the paradigm "word on word" case of sexual assault where evidence of good character is especially important. That said, I acknowledge that it has not been fully explained, almost three years later, whether character evidence was in fact available as a practical matter, if so, why it was not deployed, and what effect that failure had upon the trial. This is not a case like Ngo v R [2013] NSWCCA 142 where there was an unconvincing explanation for an extension of time but where also the Court was satisfied that the appeal would fail (see at [90]). I would not go so far as to conclude that the Crown case was "overwhelming" or "effectively unanswerable"; cf Nudd at [20] and [159]; I do not think that this Court is in a position to reach that conclusion. 50However, I remain unpersuaded that the applicant has demonstrated that this is an appropriate case to extend time. Although not hopeless, I do regard the principal ground as weak. Moreover, its nature is of some importance. This is not a case where some technical point is sought to be raised. The failure to adduce character evidence was obvious on the face of the trial, and must have been immediately apparent to the applicant and Ms Littler. This is emphatically not a case where one explanation for the delay is the need to assimilate the whole of the trial and bring to bear legal expertise. Moreover, the delay itself has contributed to the lack of clarity as to why no character evidence was called. 51I do not consider that proposed ground 2 takes the matter any further. In his ERISP the applicant had said that his telephone calls and text messages to the complainant (36 calls and 10 text messages that afternoon) were about whether the complainant would be home for dinner. He gave evidence on the voir dire that the complainant had threatened to abduct her children that night. Although submissions were made about the failure to cross-examine about this, counsel was entitled to form the view that the best outcome on this issue which he could achieve was what was obtained, namely, a direction from the primary judge that the reason for the calls and texts was irrelevant. I am not persuaded that the applicant has established that this was anything other than a forensic decision, the merits of which this Court cannot meaningfully review. 52The applicant also pointed to the failure to put to the complainant very straightforward matters about which the applicant had spoken in his electronically recorded interview: that she suffered depression, was not taking medication, was the subject of an earlier apprehended violence order and was having problems with her children. All these would have been, it may be accepted, legitimate areas of cross-examination. But it is impossible to form a meaningful view as to the impact the failure to do so had. It may be that there was a forensic decision, in light of the way in which the complainant presented to the jury, and the other evidence in the Crown case, not to cross-examine on that basis. 53The other matters complained of in proposed ground 2 are in essence complaints about the conduct of the defence by which the applicant is bound which fall short of something so significant that it amounts to a miscarriage of justice. It is to be recalled that although it is not necessary to characterise the conduct as "flagrant misconduct" or "egregious error", it is also insufficient to establish that counsel has been "negligent or otherwise remiss". To the extent that the question is whether the course taken by counsel was capable of explanation (see TKWJ at [27]-[28] and Nudd at [31] and [157]), that test would be satisfied. 54Accordingly, I do not consider that proposed ground 2 materially alters the evaluation which is required (a view which reflects the emphasis given to proposed ground 1 when the matter was heard). 55It must be borne in mind that every person is entitled to a fair trial, however strong the case against him or her may appear to be (and indeed, particularly where his or her case appears to be weak). But this is not a case where the question is whether the proviso applies. Nor is it an appeal. The question here is whether there should be a substantial extension of time. It is firmly established that the answer to that question has regard to the delay and the broader interest in the administration of justice as well as the strength of the case for which the extension of time is sought. It is not necessary for the Crown to establish that no substantial miscarriage of justice has occurred. It is necessary for the applicant to make out a proper case for a substantial extension of time. 56I would have been minded to have granted the extension of time had the facts been as the applicant had sworn. But having rejected the primary case he advanced, what remains in essence is an incompletely explained failure to call character evidence and some complaints about aspects of the way in which his defence was run. For the reasons I have given, I have concluded that the proposed grounds of appeal, although not hopeless, are weak. 57Weighing up all of those considerations, I am not persuaded that the applicant has advanced a sufficiently arguable basis that there has been a miscarriage of justice to warrant the extension of time he seeks. I propose that the extension of time be refused. 58JOHNSON J: I agree with the judgment of Leeming JA and the order proposed by his Honour. Further, I record my complete agreement with the factual findings made by Leeming JA with respect to the evidence called at the hearing of the application. 59HALL J: I agree with Leeming JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2013