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[2018] QCA 45
respondent. Appeal dismissed. The Court held that the appellant had not demonstrated a miscarriage of justice arising from counsel’s conduct.
The Court of Appeal dismissed Bush’s appeal. It held that showing counsel might have made different decisions was not enough: the appellant had to show a material problem in the trial that caused a miscarriage of justice. The jury had already heard that Bush admitted cannabis trafficking but denied trafficking in other drugs before he entered his guilty pleas on possession counts. The Court found the cross-examination of the informants adequate for the issues that needed to be put, and it was not persuaded that material from Ronan’s sentencing would probably have helped Bush. The other judges agreed with Sofronoff P’s reasons and the order.
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2,049 words · generated 02/10/2026
In R v Bush (No 1) [2018] QCA 45, the Queensland Court of Appeal considered an appeal against convictions arising from a jury trial. The appellant challenged how his trial counsel had advised and conducted his case. The Court dismissed the appeal.
No linked legislation citations have been extracted yet.
The Crown case relied on physical evidence, surveillance, communications and the evidence of two informants, Harbas and Ronan. In June 2009, police stopped Bush’s vehicle and found cannabis packages in the boot, steroids, phones and about $62,000 in cash concealed in the vehicle. Further searches located drug-related items, including cannabis and ecstasy at a garage associated with Panganiban, and testosterone at Bush’s home. Police evidence also included DNA on the inside of the vehicle’s airbag compartment cover and Panganiban’s fingerprint on the inside of tape binding a package of money.
Harbas and Ronan said that Bush supplied drugs to them for resale. Their accounts described Panganiban as a runner who made deliveries. The Crown also relied on communications between the men, some expressed in coded terms, and evidence about Bush’s finances and spending. The judgment describes the Crown case as strong, referring to both the informants’ direct evidence and supporting circumstantial evidence.
Bush’s trial position, as it emerged through cross-examination and his evidence, was that he had dealt in cannabis but not in methylamphetamine, cocaine or ecstasy. He said Harbas was the real trafficker and that Bush was, in effect, an employee or lower-level dealer. He also gave explanations for the cash, the drugs and the coded messages. The Court noted evidence that conflicted with aspects of those explanations, including surveillance, the communications and the physical evidence.
Bush pleaded not guilty to all counts at the outset. During the trial he pleaded guilty to counts relating to testosterone. After the defence case, he pleaded guilty to counts relating to steroids and cannabis found in the car. The judge put a special verdict to the jury on the trafficking count. The jury found Bush guilty of trafficking in Schedule 1 and Schedule 2 drugs, including methylamphetamine, MDMA and cannabis, but not guilty of trafficking in cocaine. The jury also found him guilty of other possession counts.
On appeal, Bush argued that there had been a miscarriage of justice because counsel did not advise him to plead guilty to cannabis trafficking at the start, advised him to plead guilty to possession counts when he did, failed to cross-examine Harbas and Ronan adequately, and did not obtain material concerning Ronan’s sentencing submissions. The Court assessed these complaints against the trial transcript and evidence given on the appeal.
The Court’s starting point was that an appeal cannot succeed merely because trial counsel might have made different choices. The judgment says the appellant must identify a material irregularity in the trial and establish that it occasioned a miscarriage of justice. A general claim that the case could have been conducted better is not enough.
Sofronoff P explained that counsel has a wide discretion in conducting a case. Some decisions can be considered in advance; others have to be made quickly during trial. The judgment connects that discretion to the adversarial system, in which parties are generally bound by their legal representatives’ conduct. It cites R v Birks and Ali v The Queen on the role and authority of counsel, and refers to TKWJ v The Queen, Nudd v The Queen and Suresh v The Queen in setting out the governing approach.
The Court did not accept that the timing of Bush’s pleas had misled or unfairly prejudiced the jury. Before the pleas were entered, the defence case had already made clear that Bush admitted trafficking in cannabis while disputing trafficking in other drugs. The special-verdict proposal also reflected that position. In the Court’s assessment, the pleas confirmed what the trial conduct had already made apparent. The jury’s acquittal of Bush on trafficking in cocaine was also relevant to the suggestion that the timing of the pleas had generally destroyed his credibility.
The Court considered counsel’s explanation that the pleas were delayed so they could be controlled by reference to the Crown case as it unfolded. It did not hold that this was the only possible approach, or that all tactical decisions are immune from review. Rather, it found that the appellant had not shown that counsel’s approach caused a material irregularity or a miscarriage of justice.
The cross-examination complaint also failed. The Court reviewed the transcript and concluded that the matters that needed to be put to Harbas and Ronan were put, and matters that needed to be challenged were challenged. Its reasoning was not that every aspect of cross-examination was necessarily optimal. It was that the identified criticism did not establish the required trial defect.
Finally, the Court rejected the complaint about Ronan’s sentencing submissions. The appellant said a submission at Ronan’s sentencing hearing about when Ronan began using drugs might have contradicted Ronan’s trial evidence and assisted in challenging his credibility. The Court noted that the sentencing hearing occurred only days before Bush’s trial began and that the appeal argument did not explain how Bush’s legal representatives ought to have known about that submission. It also considered that the proposed inconsistency would not necessarily, or even probably, have improved Bush’s case.
The judgment does not announce a new legal test. It applies established principles concerning alleged miscarriages of justice caused by defence counsel’s conduct. The judgment refers to R v Birks, R v Ignjatic, Suresh v The Queen, TKWJ v The Queen, Nudd v The Queen and Ali v The Queen as authorities relevant to the issue.
The basic distinction is between a possible shortcoming and a material irregularity that caused a miscarriage of justice. A different tactical choice, or even a claimed failure by counsel, is not by itself enough. The appeal requires a connection between the alleged conduct and a miscarriage in the trial. As the judgment puts it, “merely to demonstrate that counsel has not conducted the trial as well as it could have been conducted or even that counsel was incompetent will never be enough to sustain an appeal against conviction.”
The Court also emphasised that the assessment generally has to be objective and made with regard to the adversarial system. The practical importance of counsel’s authority is that a trial cannot ordinarily be reopened simply because, after conviction, a party or an appellate court considers another tactical course might have been better. The Court quoted from TKWJ to underline that unfairness does not arise simply because an apparently rational tactical decision may have disadvantaged an accused.
The “before” position, as described in the judgment, is therefore the established framework drawn from those authorities. The “after” position in this case is its application to Bush’s particular complaints: the Court found no demonstrated material irregularity or miscarriage. The supplied judgment does not purport to change or replace the cited principles.
The supplied judgment text does not contain numbered paragraphs for the Court of Appeal’s reasons. The quotations below therefore cannot be linked to judgment paragraph numbers.
“The failure of counsel to advise in a particular way and the failure of counsel to cross examine witnesses ‘adequately’, if established, would be immaterial unless they occasioned a ‘material irregularity in the trial’.”
In plain English, proving that counsel made a particular decision, or that cross-examination could be criticised, is not enough by itself. The appellant must show that the issue materially affected the fairness or regularity of the trial in a way that amounted to a miscarriage of justice.
“Consequently, merely to demonstrate that counsel has not conducted the trial as well as it could have been conducted or even that counsel was incompetent will never be enough to sustain an appeal against conviction.”
The Court is distinguishing performance criticism from the legal threshold for overturning a conviction. A claim that the trial could have been handled better has to be tied to a miscarriage of justice.
“A miscarriage of justice that warrants appellate intervention is not demonstrated by showing … that his case might have been conducted more advantageously for him if counsel had made a different decision about whether his client should plead guilty to any charges and, if so, when he should plead guilty.”
This addresses the plea-timing ground directly. The possibility that an alternative plea strategy could have been more favourable does not establish the necessary miscarriage.
“Nothing that had to be put to these witnesses was not put. Nothing that had to be challenged was not challenged.”
This is the Court’s conclusion about the complaints concerning Harbas and Ronan. It found the appeal had not identified an important challenge or proposition that counsel failed to put.
The decision is relevant where an appellant says a conviction should be set aside because defence counsel made a tactical or procedural choice during trial. Examples reflected in the judgment include the timing of guilty pleas, advice about whether to contest a count, the extent of cross-examination, and the failure to obtain material that might be used to challenge a witness’s credit.
The key question is not simply whether another lawyer might have taken a different approach. Under the reasoning applied here, the complaint must identify a material irregularity and explain how it occasioned a miscarriage of justice. A post-trial assertion that a different strategy might have improved the defence does not, without that connection, satisfy the test described by the Court.
The factual context can matter to whether the alleged error had any practical effect. In Bush’s case, the Court considered what the jury already knew from the defence case before the guilty pleas were entered. It also considered the trial transcript, the evidence of counsel and the appellant, and the wider evidentiary context. The judgment thus illustrates the importance of examining what actually happened at trial rather than considering a disputed tactical choice in isolation.
This is not a rule that counsel’s conduct can never support an appeal. The judgment recognises the possibility of appellate intervention where the required material irregularity and miscarriage are established. It holds that the complaints made in this appeal did not meet that threshold.
The supplied judgment is dated 23 March 2018 and does not discuss any later decisions. The material provided does not establish how subsequent courts have treated R v Bush (No 1), whether they have followed it, distinguished it or otherwise referred to it.
The judgment itself identifies the authorities it relies on for the general principles: Ali v The Queen, Nudd v The Queen, R v Birks, R v Ignjatic, Suresh v The Queen and TKWJ v The Queen. It uses them as part of the framework for assessing claims about counsel’s conduct. That discussion is not evidence of later treatment of R v Bush.
The judgment resolves the appeal on the material before the Court, but the supplied text does not answer several broader or later questions. It does not provide a survey of subsequent decisions applying its reasoning, so its later precedential history cannot be assessed from this source alone.
The Court also did not have to decide a general question about when counsel’s conduct will cross the line from a tactical choice or forensic disadvantage to a material irregularity. It applied the established principles to the facts before it and found the appellant’s complaints insufficient. The judgment does not provide an exhaustive checklist for evaluating every kind of alleged error by counsel.
Nor does it decide that every plea-timing decision, cross-examination choice or failure to obtain potentially relevant material is harmless. Its conclusions are tied to the record: what had already been put to the jury, the evidence on the appeal, the nature of the alleged inconsistency, and the way the trial was conducted. The judgment’s central caution is against treating a possible alternative course as proof of a miscarriage without establishing the necessary connection to the trial outcome.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Bush (No 1) [2018] QCA 45
PARTIES: R v BUSH, William Myles (appellant)
FILE NO/S: CA No 203 of 2014 / SC No 100 of 2014
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: Supreme Court at Brisbane – Date of Conviction: 3 March 2014 (Philippides J)
DELIVERED ON: 23 March 2018
DELIVERED AT: Brisbane
HEARING DATE: 26 July 2017; 27 July 2017
JUDGES: Sofronoff P and Morrison JA and Douglas J
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was intercepted by police and found with steroids and cannabis in his possession – where the appellant’s house was searched and he was found to be in possession of testosterone and nandrolone – where another offender confessed to trafficking in methylamphetamine, ecstasy and cannabis and told police that he was a drug runner for the appellant – where another offender told police that he had bought methylamphetamine and cannabis from the appellant – where the appellant’s case at trial was that he had only dealt in Schedule 2 drugs and that he had not dealt in Schedule 1 drugs – where the appellant’s case at trial was that he was an employee of the other offender who had claimed to be the appellant’s drug runner – where the trial judge took a special verdict from the jury as to whether the appellant had dealt in Schedule 1 drugs or Schedule 2 drugs or both – where the appellant was found guilty of trafficking in Schedule 1 and Schedule 2 drugs including 3,4‑methylenedioxymethamphetamine, methylamphetamine and cannabis but found not guilty of trafficking in cocaine – where the appellant was also found guilty of three other counts of possession – where the appellant now contends that there was a miscarriage of justice due to defence counsel’s advice to plead not guilty to the charge of trafficking rather than to plead guilty at the beginning of the trial to trafficking in cannabis only – where the appellant contends that there was a miscarriage of justice due to defence counsel’s advice to plead guilty at the times at which the appellant did – where the appellant contends that there was a miscarriage of justice due to defence counsel’s failure to cross-examine the two informant offenders adequately – where the appellant contends that there was a miscarriage of justice because defence counsel did not obtain the sentencing submissions of one of the informants that could have been used to undermine that informant’s credit at trial – whether the conduct of defence counsel at trial resulted in an irregularity that was so material that it occasioned a miscarriage of justice / Ali v The Queen (2005) 79 ALJR 662; [2005] HCA 8, cited / Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited / R v Birks (1990) 19 NSWLR 677, cited / R v Ignjatic (1993) 68 A Crim R 333, cited / Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23, cited / TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited
COUNSEL: T A Ryan for the appellant / G J Cummings for the respondent
SOLICITORS: Howden Saggers for the appellant / Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: On 24 June 2009 Senior Constable Reynolds and his colleague Senior Constable Barclay were driving on the Bruce Highway near the Ettamogah Pub in a marked police vehicle. They intercepted a silver Ford Falcon motor vehicle. The driver was the appellant and his passenger was Gerald Panganiban. The police officers searched the car and found a black container holding a number of tablets. The dashboard contained a safety airbag. They removed the cover of the airbag compartment and inside found a packet containing money. The police officers opened the boot of the car and found a black plastic bag that contained 10 plastic packages.
In due course analysis showed that the tablets were steroids. The 10 packages in the boot contained about 450 grams of cannabis each. The appellant and Panganiban were arrested.
The car was towed to a police station and examined further. Traces of the appellant’s DNA were found on the interior of the airbag compartment cover. Panganiban’s fingerprint was found on the inside surface of the plastic tape that secured the package of money. Three mobile phones were found in the car.
Panganiban’s flat and a garage at the unit block he occupied were also searched. Some days later, a neighbour alerted police to the fact that Panganiban had been using another garage in the same unit block. She had seen him attend that garage frequently, sometimes with a man accompanied by two German Shepherds. The appellant owned two German Shepherds. Keys had been found in the silver Ford Falcon and they were used to open this garage. Inside police found three glass chemical flasks and a surface condenser. These vessels were proved at the trial to be of a kind commonly used to manufacture methylamphetamine. The garage also held a wine bottle refrigerator which contained a bottle of what was later found to be testosterone. The appellant later admitted that the fridge and its contents were his. A workbench in the garage contained a hidden space in which were more bags of cannabis and a tub of ecstasy pills.
The appellant’s house was searched and police found vials of testosterone and Nandrolone.
The interception of the vehicle driven by the appellant had not been a chance event. The appellant and Panganiban had been under police surveillance for some time. They had been followed and photographed. A tracking device had been placed on the silver Ford Falcon and police had been recording the car’s movements.
Some months later police arrested one Saffet Harbas. He immediately confessed to being a drug trafficker. He began telling police all he knew to ease his inevitable prison sentence. Police had found plastic tubs of methylamphetamine at his house as well as scales that could be used to weigh the drug. He admitted to trafficking in methylamphetamine, ecstasy and cannabis. He produced to police a sawn-off shotgun and a rifle with an attached silencer. He explained to police that he was one of the appellant’s drug couriers or, as they are termed, runners.
Harbas said that he had been buying cannabis, methylamphetamine and ecstasy pills for re‑sale from a particular supplier whose business had been interrupted by a conviction and prison term for rape. That dealer had introduced Harbas to the appellant in April 2009 as an alternate supplier. The appellant and Panganiban met Harbas at a bar on the Sunshine Coast. The appellant introduced Panganiban to Harbas as one of his runners. The appellant agreed to supply cannabis to Harbas in amounts of five to ten pounds a week. According to Harbas, the appellant told him that it would be Panganiban who would actually deliver the drugs. The appellant gave Harbas codes that he was to use in text messages to Panganiban. He was told to frame his messages so that they were, as Harbas put it, “Gay”. By that Harbas meant that the messages should simulate a romantic relationship. However, in addition a four digit number was to be inserted. The position of a zero in that number would signify the particular drug being requested. So, in the first position a zero would signify that methylamphetamine was sought. In the second position it would signify that what was wanted was MDMA, that is to say ecstasy tablets. In the third position the zero would signify cocaine and in the fourth it would signify cannabis.
According to Harbas, the appellant said that Panganiban took a percentage of the profits of the business.
Using a phone registered in the name David Tyler, Harbas began to request supplies of cannabis and Panganiban began to deliver them in “pound” lots in the silver Ford Falcon. This is consistent with the 450 gram parcels that had been found in the intercepted vehicle. Harbas also purchased ecstasy pills in lots of 100, cocaine in quarter ounce parcels and methylamphetamine in four ounce lots. He made these purchases on credit. Between April and June 2009, when the appellant was arrested, Harbas bought thousands of dollars’ worth of these drugs from the appellant.
The police surveillance, and the tracking device that had been attached to the car, showed that the appellant and Panganiban spent most days of the week together travelling from place to place.
Sometime after his arrest, perhaps late in 2010, the appellant moved from the Sunshine Coast, where he had lived, to premises in northern New South Wales in the Mooloolah Valley which were owned by one Luke Bracken. Bracken had met the appellant in about 2009. Harbas said that he and his girlfriend had helped the appellant move his possessions to his new home. He said that from that point on he began to work directly for the appellant as a runner. The appellant introduced him to his customers. He was supplied with quantities of methylamphetamine contained in larger Tupperware-like containers. Harbas would dilute the drug with an inert substance and package it into four ounce lots and deliver these as directed by the appellant. Each four ounce package was sold by him for $10,000. He said that on one specific occasion he had driven to the appellant’s home with two companions to collect a supply. His companions waited in a nearby park while Harbas drove alone to the appellant’s home and took delivery of 2,000 ecstasy tablets. He then collected his friends and returned to the Sunshine Coast. One of these friends, Grant Aldersea, corroborated this story.
Harbas was charged and pleaded guilty and, after a successful appeal against sentence, he was ordered to be imprisoned for five years with a period of actual custody of one year.
Another drug dealer, Shane Ronan, said that he had also bought drugs for re‑sale from the appellant. He said he would buy half or full ounces of methylamphetamine as well as cannabis every two weeks or so. He would then re‑sell these drugs in smaller quantities. He said that the appellant was his primary source of supply for methylamphetamine. He also bought ecstasy tablets by the hundreds from him as well as cocaine. He would contact the appellant by text message and would usually receive a response and delivery very quickly. Panganiban had been introduced to him as the appellant’s runner and it was he who delivered the drugs.
Ronan had been arrested and he too had become an informant into the appellant’s activities.
The appellant had worked for some time for a company owned by Celeste Cocomero and her husband. They conducted a stonemasonry business. He ceased working for the company in about 2008. The appellant then approached Mrs Cocomero and asked her to agree to accept sums of cash from him which she would reimburse from her company’s bank account to simulate the payment of wages. He told her that the purpose of this scheme was to enable him to demonstrate to a financier that he was employed on a full time basis. At the trial there was no dispute that he did this and that she handled between $7,000 and $10,000 in this way.
In fact the appellant did obtain finance at about that time by way of an interest-only loan for $350,000. The term of the loan was 12 months. The monthly repayments were $3,397.91. The appellant used the advance to buy a dwelling.
For many years the appellant had maintained an account with a Flight Centre branch office. A ledger produced at the trial showed transactions between 2001 and 2010 involving many thousands of dollars being spent by the appellant on international travel by him and his partner, Ms Jodie Thorley. In about 2007 he told his travel agent at Flight Centre, one Benjamin Earl, that he was concerned that his travel records might be divulged. He asked Mr Earl to change the name on the account to “William Burns”. Mr Earl complied and the account was thereafter conducted under this phony name.
The appellant’s income and expenses for the period 1 July 2007 to the end of June 2009 were analysed by an accountant, Christopher Allen. The result of this analysis showed that, taking into account the appellant’s known sources of income and his evident expenditure, he had cash income from an unknown source of at least $66,000. This figure did not take into account the $62,000 which had been found in the car when he was arrested.
Mr Bracken, onto whose property the appellant had moved in 2010, remembered that upon his arrival the appellant had given him a duffle bag stuffed with $50 and $100 bills. Bracken estimated that there was about $100,000 in the bag. He said that the appellant had asked him to keep it for him. He did so and later returned it when the appellant asked for it.
The phones found in the intercepted car revealed a slew of contacts between the appellant and Panganiban, Harbas and Ronan as well as other people. The appellant admitted that he had used a phone registered to one West. There was also evidence from which the jury could conclude that the appellant had used a phone registered in the name of Hethfield and another in the name of Steiner.
On 5 April 2009 the appellant used one of these phones to send a text to a sex-worker, one Ms Schmidt, to arrange a tryst. He asked her to book a room for them at the Emporium Hotel in Brisbane, for which he said he would pay. She texted him:
“Up to 4hr is 2000. All night is 3800 up to 8hr.”
Later she texted:
“hope uhav cash. i do not hav credit card facility.”
The appellant replied, relevantly:
“Cash is king my little play mate.”
It became common ground at the trial that the appellant had retained her services, had paid her a sum in the order of $3,000 and that he had also paid for the hotel.
On the following day Schmidt texted him:
“Would lov to get 60 to 100 dvd. must b gd quail (sic) prefer rate 5 out of 5.”
The appellant responded that he would be in touch.
These phones were also used to exchange messages with Panganiban. As is common in cases of trafficking, the texts were expressed in a facile code that, once examined and exposed, implied that the correspondents who used it were engaged in an illicit enterprise that they took trouble to disguise. Thus, the appellant admitted that he commonly used the terms “office”, “depot”, “workshop” and “jobsite” as codes for places that he frequented but which were not any of those things. The “workshop” was in fact the garage in which the refrigerator, steroids, cannabis and ecstasy were found. The evidence suggested that it was the appellant who texted Panganiban as follows:
“im just near plaza … Where you at.”
“U have a spare labourer with u?”
Panganiban replied:
“No i have to back to the workshop to see who is available.”
On another occasion Panganiban texted:
“Is everyone on the 4.2 margin head start for this week’s tipping comp.”
The appellant replied:
“i think he may b 4.3, just feel him out everyone else, started tips @ 4.2.”
This was said by the Crown to be a reference to the price of a pound of cannabis, namely $4,200 or $4,300. Unchallenged expert evidence had been led at the trial that the market price for a pound of cannabis at the time was about $4,000.
The appellant’s phone was then used almost immediately to text Harbas’s phone:
“He is gonna txt u soon.”
One of the phones found in the car had been used to arrange the meeting with Schmidt. One of the others, registered in the name of one Baker, showed text exchanges with another phone found in the car registered in the name of Hethfield. These text messages evidenced the arrangement to pick up the user of the Baker phone at the “jobsite”.
The appellant and the Hethfield phone and Panganiban and the Baker phone were both in the car when it was intercepted. The inference was that these phones had been used by the appellant and Panganiban respectively to arrange for the appellant to collect Panganiban for the trip they took which police had interrupted.
Numerous messages between these phones and others, that made no sense having regard to the appellant’s actual circumstances, but which were capable of being interpreted as coded messages about drug sales, were produced. There were many of these kinds of messages exchanged between the appellant, Panganiban, Harbas and Ronan. There were also hundreds of instances of phone calls between them. None of this was challenged on appeal.
Count 1 on the indictment charged the appellant with one count of trafficking in 3,4‑methylenedioxymethamphetamine, methylamphetamine, cocaine and cannabis. He was also charged with possession of methandienone. This was count 2, the steroids found in the car. Count 3 related to the cannabis found in the vehicle. Count 4 charged possession of the glass reaction vessels. Count 5 related to the appellant’s possession of cannabis that had been found hidden in the garage. Count 6 concerned the ecstasy found in the same place. Count 7 related to the testosterone found in the wine fridge and count 8 related to testosterone found in the appellant’s home.
The trafficking case against the appellant was, therefore, a strong one. He had been arrested with a large amount of cannabis and $62,000 in cash, neatly wrapped. It consisted of direct evidence given by his fellow drug traffickers. Their evidence was supported by the circumstantial evidence of the physical associations between themselves and the appellant and their frequent contact by phone calls and text messages. The steps taken by the appellant to disguise his cash as wages and his cloaking of his spending on travel by the use of a fake name also supported the Crown case of trafficking.
The appellant pleaded not guilty to all counts.
As it emerged in cross-examination of the Crown’s witnesses, the appellant’s case at trial was that he was merely a low level trafficker of cannabis and an occasional dealer in steroids and Viagra. He denied ever dealing in methylamphetamine, cocaine or ecstasy. In fact, he said it was Harbas and not he who was the real trafficker and that it was Harbas who supplied him with cannabis. In short, he put the Crown’s case the other way around. On his case, he was merely an employee of Harbas who dealt in a small way in marijuana and this was something that he only began to do in 2004.
Consistently with this case, on the fourth day of the trial his counsel had invited the learned trial judge, Philippides J, to consider taking a special verdict from the jury in relation to the nature of the drug that had been the subject of the trafficking charge. This proposal was raised again on the seventh day of the trial. The Crown did not oppose this course and it was adopted.
On the morning of the sixth day of the trial, just before the Crown closed its case, the appellant’s counsel informed the Judge that he would be applying for his client to be re‑arraigned on certain of the lesser counts. After some further brief cross-examination of Harbas, the appellant was re‑arraigned on counts 7 and 8, which related to his possession of testosterone, and he pleaded guilty to those charges. The appellant then gave evidence.
He admitted to a trade in cannabis and said that he had been earning a net profit of only $700 to $1,000 a week. He admitted that the steroids found in the car were his as was the testosterone found in the garage and at his home. He said that all of the other drugs belonged to his boss, Harbas.
He could not explain how his DNA came to be found on the inside of the airbag cover in the car. His counsel suggested to witnesses and to the jury that those traces might have come from inadvertent cross‑contamination by the actions of police. The appellant said that he himself had never used that place to hide anything. He said he was not a methylamphetamine or cocaine dealer. The garage was Panganiban’s and the drugs found there were Harbas’s. He was just a stay-at-home dad who looked after his child.
He explained that Harbas might have fabricated his evidence to get a lighter sentence and also because he was angry at the appellant because he, Harbas, believed that the appellant had had sex with Harbas’s girlfriend.
He explained the presence of the cannabis and cash in the car by saying that it was his employer, Harbas, who had directed him to take three wrapped bundles of money. One of these contained $2,000 by way of payment to the appellant. He was to drive to an address where he would hand over the smaller of the remaining two parcels in exchange for packages that would be placed in the trunk of the car. This was the cannabis that was later found there.
The third bundle of money was to have been dropped off at another address but, through some confusion, that never happened. This was the packet containing $62,000 that was found in the airbag compartment. On that evidence, of course, there could have been no possible occasion on which Panganiban could have wrapped and taped the parcels of money himself.
In fact, on the appellant’s evidence Panganiban was only along for the ride. As I have said, according to the appellant Harbas had promised to pay the appellant $2,000 for this errand and the appellant had agreed to give Panganiban $1,000 if he accompanied him. The appellant never explained his act of generosity or why Panganiban’s attendance on this covert mission either was necessary or desirable.
He admitted putting money through the stonemasonry business so that it could emerge as apparent wages but said that that was done merely to show that he had an income in order to fraudulently satisfy an application for a loan. He denied ever giving Bracken $100,000. On the contrary, he said that in 2009 and 2010 he was struggling financially such that the mortgagee took possession of his house and sold it. He said that it was after he ceased work for the stonemasonry business that he began to sell marijuana for the first time.
He explained the code he used. The “office” was his home. The “depot” was the gym that he and Panganiban frequented. The “workshop” was Panganiban’s home. On the appellant’s evidence, Panganiban did not work for him. In cross-examination by Mr Fuller QC for the Crown the following exchange occurred:
“Why did you need to have a code for [Panganiban’s] house? --- Don’t know.
You don’t know. Well, he wasn’t dealing drugs for you, you’ve told us? --- That’s correct.
You were just operating on your own? --- Gerald looked after his own affairs.
I see. So why would you need to have conversations between yourself and Gerald where you’d use code? --- That’s a good question.
Do you have a good answer? --- No. I don’t – I don’t know.”
The appellant’s case, as revealed in cross-examination of the Crown’s witnesses and as explained in his own evidence, raised several problems for him. The unchallenged surveillance evidence suggested that there had been a business relationship between the appellant and Panganiban. Further, the text messages between them reinforced the existence of a business relationship. The coded content of the text messages between the two evidenced a covert business relationship that was reliant upon the use of codes to maintain secrecy. The tenor of some of those messages suggested that it was the appellant who was the dominant party in that relationship. On the whole, the content of the text messages was inconsistent with the appellant’s asserted role as a mere purchaser of moderate quantities of cannabis from Harbas. They conflicted entirely with his contention that he was not in business with Panganiban. The appellant never confronted the inferences that could be drawn from this circumstantial evidence.
The appellant’s willingness in late 2008, after he had ceased his employment, to take on a debt of $350,000 was inconsistent with his claimed status as an unemployed battler trying to make money by a second job as a low level marijuana dealer. Nor was his income from this admitted drug trade sufficient to account for his expenditure, his unaccounted-for income and certain elements of his lifestyle, such as his payment of over $3,800 and hotel charges for a single night with a call girl.
He could not explain his use of codes and, consistently with his own case, that use was inexplicable.
Importantly, his story that it was Harbas who had handed him the packages of money and that Panganiban had merely accompanied him at the appellant’s own request was inconsistent with the presence of Panganiban’s fingerprint on the inside of the tape binding one of the packages. Panganiban must have packed the money. But on the appellant’s story it was Harbas, his boss, who did this and Panganiban could never have touched the inside of the tape. Panganiban, after all, “looked after his own affairs”. Likewise, the presence of the appellant’s DNA inside the compartment was inconsistent with his asserted limited role as a messenger.
After the defence case concluded, the appellant’s counsel asked the learned trial judge to re‑arraign the appellant on counts 2 and 3. These related to the steroids and cannabis that had been found in the car. This was done and the appellant pleaded guilty to these charges.
On the eighth day of the trial the Crown prosecutor stated with precision the special verdict that he submitted the jury should consider. They were to consider, he said, whether the appellant was guilty or not guilty of trafficking in both Schedule 1 and Schedule 2 drugs. If the verdict was guilty, then the jury would be asked whether the drugs included methylamphetamine, 3,4-methylenedioxymethamphetamine and cocaine. If the verdict was not guilty, then the jury would be asked whether they found the appellant guilty of trafficking in Schedule 2 drugs.
At the end of the trial the jury were directed accordingly and found the appellant guilty of trafficking in Schedule 1 and 2 drugs consisting of methylamphetamine, 3,4‑methylenedioxymethamphetamine and cannabis but not guilty of trafficking of cocaine. He was also found guilty of the remaining charges contained in counts 4, 5 and 6 relating to his possession of equipment and the cannabis and ecstasy pills in the garage.
The appellant has appealed against all of his convictions on the ground that there had been a miscarriage of justice because of:his counsel’s advice to plead not guilty to the charge of trafficking rather than to plead guilty at the beginning of the trial to trafficking in cannabis only;his counsel’s advice to plead guilty at the times at which he did;his counsel’s failure to cross examine Harbas and Ronan “adequately”;the evidence of Harbas after the trial casts doubt upon his reliability and credit.
The notice of appeal, as cast, does not on its face allege any actual miscarriage of justice or any other valid ground of appeal. What it does allege is that, in the opinion of the appellant, or perhaps in the opinion of his advisers, the trial might have been conducted in a different way, the cross-examination might have been better and useful evidence going to credit might have been tendered. None of this raises a valid ground of appeal.
The principles that apply to a ground of appeal based upon a miscarriage of justice arising as a result of the conduct of the trial by counsel have been established authoritatively in a series of cases.1 The notice of appeal in this case is flawed because it fails to identify what the miscarriage of justice might have been. The failure of counsel to advise in a particular way and the failure of counsel to cross examine witnesses “adequately”, if established, would be immaterial unless they occasioned a “material irregularity in the trial”.2 Whether a proven irregularity gives rise to a miscarriage may depend upon whether or not the act of counsel that is complained of was undertaken for calculated tactical reasons. A course undertaken deliberately makes it very difficult for an appellant to succeed upon such a ground because, as has been repeated many times, the system of criminal justice is an adversarial system and is based upon the general assumption that parties are bound by the conduct of their legal representatives.3 Counsel has, and necessarily must have, a wide discretion in conducting a case. Questions that arise for consideration during the conduct of a trial may be ones that allow lengthy forethought or they may require fast decisions to be taken. Either way, they are usually not amenable to any fruitful debate to which a client can contribute. The discretion has been described as one amounting to an “unlimited authority”.4 These principles as to the role of counsel, including counsel’s authority to bind the client, are “fundamental to the operation of the adversary system, and form part of the practical content of our notions of justice”.5
Consequently, merely to demonstrate that counsel has not conducted the trial as well as it could have been conducted or even that counsel was incompetent will never be enough to sustain an appeal against conviction.
In most cases the question whether there has been a miscarriage of justice occasioned by counsel’s conduct of the trial will not depend upon any factual investigation into the conduct of the case.6 In general, as far as justice permits, the enquiry has to be an objective one.7 However, in this case the appellant swore an affidavit which was read on the hearing of the appeal. He also gave oral evidence. In his affidavit he said that when he was in the dock on the first morning of the trial he was told by his solicitor, Mr Bruce Peters, that he was to plead not guilty to all charges. Accordingly, he did so. He said that he was not told why that course had been advised when in fact he had given instructions that he was guilty of the charges to which he ultimately pleaded guilty and was also guilty of trafficking in cannabis. The appellant said that when he was advised to change his pleas, upon his successive re‑arraignments, he raised his concerns with his lawyers that that course might affect the jury’s view of his credit. He said that nobody had ever discussed with him the possibility of pleading guilty to trafficking in cannabis at the beginning of the trial. None of this evidence of the appellant’s ignorance of counsel’s reasons for advising a particular course raises any possible miscarriage in this case.
It is apparent from the transcript itself that the course that was adopted in relation to the pleas was a deliberate one on the part of counsel. At an early stage of the trial the appellant’s instructions that he was guilty of trafficking in cannabis informed his counsel’s submissions about the desirability of a special verdict. In addition, those instructions were reflected in the content of counsel’s cross-examination of Harbas, Ronan and another witness who purchased drugs from him, Shane Martin. By the conclusion of Harbas’s cross-examination the jury could have been left in no doubt that the appellant was not contesting his guilt of trafficking in cannabis. Likewise, they could have been in no doubt that the appellant denied involvement in cocaine trafficking (of which he was acquitted by the jury) or trafficking in methylamphetamine and ecstasy.
The lack of substantive cross-examination of the police officers who gave evidence of their discoveries could have given no false impression that the appellant was contesting his possession of the drugs for which he ultimately accepted responsibility.
The pleas of guilty, when they came, would not have come as a surprise to the jury so as to affect his credit. His credit remained sufficiently intact to lead to his acquittal in respect of trafficking in cocaine.
Consequently, even if it was sufficient to establish that a miscarriage of justice had occurred because the appellant’s credit had been corroded in the eyes of the jury by the timing of his pleas of guilty, I would not accept that even that much has been shown. Those pleas did no more than to confirm to all watching the trial what was already evident from the way the appellant’s case had been conducted to that point.
The appellant really had much bigger problems to face than the choice of a particular moment at which to plead guilty. His former accomplices had implicated him directly in trafficking methylamphetamine, 3,4-methylenedioxymethamphetamine, cocaine and cannabis. They were supported in their allegations by the external evidence to which I have referred that was either unchallenged or unchallengeable. His counsel said in his evidence, given on the hearing of the appeal, that he had formed a view at an early stage that his client would have to give evidence if he was to have any chance of acquittal. That opinion was not challenged and was obviously correct.
The appellant’s own evidence, when he gave it, unfortunately did not assist him very much. In many places it conflicted with some of the unchallengeable evidence led by the Crown and it was inconsistent with much of the rest of the objective evidence. On the face of the transcript the appellant was unable to answer the Crown’s case about the source of his money, the use of codes initiated by him, the terms of the text messages that he both sent and received from admitted drug peddlers and his relationship with Panganiban.
A miscarriage of justice that warrants appellate intervention is not demonstrated by showing, as the appellant seeks to do, that his case might have been conducted more advantageously for him if counsel had made a different decision about whether his client should plead guilty to any charges and, if so, when he should plead guilty. Without more this would not amount to a miscarriage of justice.
The respondent led evidence from the appellant’s legal representatives who had appeared at the trial. The appellant’s trial counsel and his solicitor furnished affidavits and were cross examined. A case theory was put to the trial counsel that he had advised that the appellant should plead not guilty at the beginning of the trial only because he had inadequate instructions about the real facts. That theory cannot be sustained. Counsel had a statement that was, in its essentials, complete in that it contained all that was necessary to understand the appellant’s case about his involvement. It is true that counsel complained during the trial that his instructing solicitor had not furnished him with a final proof of evidence. However, that complaint related to the absence of a comprehensive statement that combined the appellant’s existing proof of evidence and his further statement dealing with the evidence of Crown witnesses. There could not be any sensible view that counsel was unable to apprehend his client’s instructions. An examination of the transcript of the cross-examination of the Crown’s witnesses reveals many instances where what counsel put to witnesses was later reflected in the appellant’s own evidence, even to the extent of matters not clear in his counsel’s written instructions.
In fact, counsel said that he chose to delay the pleas of guilty in order to “control them by reference to the case as it eventually came out before the jury”. He said that he saw no advantage to his client pleading guilty to “what would still be significant drug offences before the jury, before a Crown opening, with a limited opening by the defence and then a case to still be established”.
Reasonable minds can differ about the utility of tactics adopted by counsel in particular cases. Such differences are pointless in an appeal such as this. Ex hypothesi, the appellant has lost his case and it will always be possible, at a post-mortem examination of the trial, to find things that might have been done differently or might have been done better. In order for a shortcoming in counsel’s conduct of the trial to be relevant it must have resulted in much more than a mere forensic disadvantage being suffered by an appellant.
It is impossible in this case to say that counsel’s approach was wrong. Far less can it be said that he was negligent. No miscarriage of justice has been shown. As Gleeson CJ emphasised in TKWJ:8
“But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise.”
The appellant also complains about counsel’s cross-examination of Harbas and Ronan. These complaints also amount to nothing. A more experienced or a more talented counsel might have done better. A less experienced or a less talented counsel might have done worse. An examination of the transcript shows that nothing that had to be put to these witnesses was not put. Nothing that had to be challenged was not challenged.
Finally, the appellant contends that he has suffered a miscarriage of justice because at Ronan’s sentence hearing on 14 February 2014 Ronan’s counsel submitted to the sentencing judge that Ronan had not used any drugs until sometime after 2008, after a sibling had been killed in a car accident, when he turned to drugs for comfort. This submission, it is now said, was inconsistent with Ronan’s evidence at the trial that he had been a user of drugs and a purchaser of drugs from the appellant from a much earlier date. It is said that a transcript of that submission was not obtained but that it should have been obtained for counsel’s use at the trial in order to enable him to undermine Ronan’s credit. The trial commenced on 17 February 2014. It was not explained during argument on the appeal how the appellant’s legal representatives ought to have known that that submission had been made just days earlier.
The proposition that the omission to obtain evidence about this submission made on Ronan’s behalf occasioned a miscarriage of justice in the trial that has been described above only has to be stated to demonstrate its invalidity. The argument does not even amount to an allegation of carelessness on the part of the appellant’s legal representatives. Nor is it possible to understand how, if the proposition about inconsistency had been put to Ronan, it would necessarily, or even probably, have improved the appellant’s case. Many people have minimised the scope of their wrongdoing on sentence. Whether that is so in this case is not known.
I would reject this ground.
In my opinion the appellant has failed to demonstrate that he has suffered any miscarriage of justice and the appeal should be dismissed.
MORRISON JA: I have read the reasons of the President and agree with those reasons and the order his Honour proposes.
DOUGLAS J: I agree with the President.
R v Birks (1990) 19 NSWLR 677; R v Ignjatic (1993) 68 A Crim R 333; Suresh v The Queen (1998) 72 ALJR 769; TKWJ v The Queen (2002) 212 CLR 124; Nudd v The Queen (2006) 80 ALJR 614. ↩
TKWJ v The Queen, supra, at [79] per McHugh J. ↩
Ali v The Queen (2005) 79 ALJR 662 at [7] per Gleeson CJ. ↩
R v Birks, supra, at 684 per Gleeson CJ quoting Halsbury’s Laws of England, 4th ed, vol 3(1), para [518] at 420. ↩
R v Birks, supra, at 684 per Gleeson CJ. ↩
Ali v The Queen, supra, at 25 per Hayne J. ↩
Nudd v The Queen, supra, at [10] per Gleeson CJ. ↩
supra at [16]. ↩
R
Bush
(2005) 79 ALJR 662
(2006) 80 ALJR 614
(1990) 19 NSWLR 677
(1998) 72 ALJR 769
(2002) 212 CLR 124
Appeal dismissed. The Court held that the appellant had not demonstrated a miscarriage of justice arising from counsel’s conduct.