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[2009] QCA 319
respondent. Appeal dismissed
The appellant, convicted of trafficking and supplying heroin, argued her trial counsel's omissions caused a miscarriage of justice. The Court applied the High Court's TKWJ test: the appellant had to show a material irregularity by counsel and a significant possibility that it affected the verdict. Examining each complaint, the Court found either that the omitted lines of inquiry had been addressed or would have been risky or futile, and that the prosecution case (confession, purchaser's prior statement, surveillance, seized items) was overwhelming. Tactical restraint by defence counsel was objectively reasonable (a 'small target strategy'). The Court dismissed the appeal.
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The appellant, Marijana Caric, was indicted and tried for one count of trafficking heroin, eight counts of supplying heroin and one count of possessing heroin. After a four day trial she was convicted on the trafficking and supply counts and also convicted of possessing heroin ([3]). The prosecution case rested principally on three categories of evidence: police surveillance of short, clandestine meetings between the appellant and multiple persons on 1–2 August 2006 with two of those persons found possessing heroin shortly after their meetings with her ([6], [7], [8]); a prior statement given by one of those persons, Andy Giorgatzis, to police conceding multiple purchases from the appellant ([10]); and a recorded police interview (a record of interview) in which the appellant admitted supplying heroin on a number of occasions ([13]-[16]).
No linked legislation citations have been extracted yet.
On appeal the appellant did not challenge the admissibility of the prior statement itself, but mounted a primary attack that her trial counsel's performance was so deficient that it caused a miscarriage of justice. The specific complaints spanned: failure to prepare proofs of evidence, failure to call potential witnesses (notably Brett Barran), failure to cross-examine Giorgatzis on whether his police statement was made under duress, failure to obtain an adjournment, and failure in closing address to explain why the appellant purportedly gave false answers at interview, and to explain how the jury should view Giorgatzis' evidence ([5], [18]).
The Court of Appeal (Keane, Muir and Chesterman JJA, with Chesterman JA delivering comprehensive reasons) dismissed the appeal ([1]-[2], [67]). The reasons turned on an application of the TKWJ standard (miscarriage of justice through counsel error) and an evaluation, paragraph by paragraph, of each alleged counsel omission against the evidence and the tactical choices reasonably available ([19]–[21], [22]–[66]).
Two-pronged test: The Court began with the governing principle from the High Court in TKWJ v The Queen. That authority directs appellate courts to focus on whether a miscarriage of justice has occurred rather than whether counsel erred; nevertheless, counsel error is relevant as an intermediate matter. The enquiry ordinarily subsumes two questions: (1) did counsel's conduct amount to a material irregularity in the trial; and (2) is there a significant possibility that the irregularity affected the outcome. Tactical discretion of counsel attracts wide latitude; decisions made without or contrary to instructions, or involving errors of judgment, do not alone suffice to overturn a conviction ([19]).
Objective inquiry into strategy: The Court emphasised the objective nature of appellate review of counsel omissions: the question is not why counsel omitted evidence, but whether there could be a reasonable explanation for the omission ([51]). If there is a reasonable explanation, the absence of the evidence does not establish a miscarriage.
Assessment of evidence and credibility: Applying the test, the Court inspected the underlying evidence. It accepted that the prior statement of Giorgatzis was admissible under s 17 and s 101 of the Evidence Act because his trial evidence contradicted his earlier statement; that prior statement could be accepted by the jury as evidence of its contents ([10]-[12]). The recorded interview was the subject of a voir dire on inducement; the appellant swore on that voir dire that her interview was voluntary and truthful, and the judge admitted the interview. On appeal the Court accepted that the judge's assessment was correct and pointed to factors including the appellant's extensive criminal history and experience in dealing with police, and the recorded cautions administered in the interview ([15]-[16], [53]).
Risk in probing certain lines: The Court rejected the contention counsel should have further cross-examined Giorgatzis to elicit that his statement was prompted by a threat that he would be charged if he did not comply. The Court observed that the essence of that explanation had already been elicited, he had gone reluctantly and felt pressure to provide the police with what they wanted ([31]-[36]). Moreover, pressing the point that he was threatened with a supply charge could have been dangerous: if there was no such underpinning evidence, the attempted explanation might look threadbare; if he acknowledged potential exposure to supply charges, the jury would see a clandestine purchaser meeting the appellant ([35]).
On Barran, there were competing affidavits, but the Court concluded the appellant had not instructed her lawyers in a way that alerted them to Barran's potential corroboration, and that when the prospect of calling him emerged his likely testimony was of limited assistance and exposed him to cross-examination revealing convictions for dealing (including joint supply with the appellant). Objectively, counsel's decision not to call Barran had a reasonable tactical explanation ([44]-[50]). The Court expressly approved not calling a witness where the prospect of damage outweighed benefit ([50], [51]).
Small target strategy: Given the combined force of the confession, the prior statement, the surveillance and the physical items seized, the Court concluded the prosecution case was overwhelming ([63]). In that context an advocate's choice to keep openings and addresses brief and to limit examination-in-chief was plausible and proper; the 'small target strategy' avoided amplifying inconsistencies and implausible explanations that would only emphasise the weaknesses of the defence ([65]). On that basis, the Court found no material irregularity or significant possibility that any counsel omission affected the outcome and dismissed the appeal ([66]-[67]).
Before: The High Court's TKWJ (2002) already established the controlling standard for appeals alleging miscarriages caused by counsel error: the two-stage test of material irregularity and significant possibility of affecting the outcome, together with a recognition of counsel's wide tactical discretion and the objective nature of appellate review. R v G (QCA) had earlier set the same theme in Queensland appellate jurisprudence ([19]-[21]).
After: This decision applies and reaffirms those principles in a straightforward criminal fact pattern. The Court reiterates that tactical omissions will not ordinarily warrant a retrial absent exceptional circumstances when there is an objectively reasonable tactical explanation, especially where the prosecution case is overwhelming. The judgment is a practical demonstration of applying TKWJ and R v G in the context of confessional evidence combined with prior inconsistent statements and surveillance corroboration ([19], [20], [63]-[66]). The decision therefore consolidates the appellate emphasis on objective reasonableness of counsel strategy and the high bar for finding miscarriages for omissions in a strong prosecution case.
Governing test (para [19]): Quote: "The critical issue ... is not whether counsel erred ... but whether a miscarriage of justice has occurred ... First, did counsel's conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome?" Plain English: The court asks not simply whether a lawyer made mistakes, but whether those mistakes were important enough to have probably changed the verdict. There must be an important error and a real chance it altered the result.
Admission of prior statement (para [12]): Passage: The prosecutor applied under s 17 and, pursuant to s 101, the jury could accept the contents of the statement as evidence. Plain English: Because Giorgatzis changed his story at trial, the jury could be shown his earlier police statement and could treat it as if the facts in that statement were true.
Risk of calling Barran (paras [47]-[50]): Passage: Calling Barran would likely have exposed his convictions for dealing, risking destroying his credibility and revealing the appellant's criminal past; it would probably have done more harm than good. Plain English: Bringing Barran into court would have opened the door to cross-examination that could have made things worse for the defence; not calling him was a reasonable tactical choice.
Strength of prosecutor's case (para [63]): Passage: "The reality is that the case against the appellant was overwhelming. It included her confession and Giorgatzis' statement...and evidence of clandestine meetings..." Plain English: The combined evidence, the appellant's own admissions, the purchaser's earlier statement, police observations and seized items, made the prosecution's case very strong.
Tactical justification (para [65]): Passage: Defence adopted a 'small target strategy' to minimise exposure to damaging contradictions. Plain English: The defence deliberately kept its case small to avoid drawing attention to inconsistencies that would weaken it.
This decision will be most relevant where:
In short, where the prosecution case is strong and a defence would be advanced only by courting the risk of exacerbating damage, appellate relief for alleged counsel omissions will be difficult to obtain.
This judgment itself does not catalogue subsequent appellate treatment. The decision operates as an application of TKWJ and R v G within Queensland and stands as a persuasive instance of enforcing the two-step standard and the objective inquiry into counsel strategy. To know how later courts have applied or distinguished this particular decision requires targeted post-2009 case research in Queensland and other Australian jurisdictions. The reasons given here illustrate the reasoning later courts may adopt when confronted with similar fact patterns: a strong prosecution case, admissible confessional and prior-statement evidence, and a plausible tactical rationale for conservative defence conduct ([19], [63]-[66]). Practitioners should therefore check subsequent reported decisions for follow-up citations to R v Caric [2009] QCA 319.
Degree of detail required in instructions to counsel: The Court observed gaps in the appellant's explanation of what instructions were given to her lawyers and concluded that on the material before it there was no basis to fault counsel for not calling particular witnesses or eliciting particular lines of evidence ([21], [23], [44]). Open question: how detailed must an appellant's post-trial affidavit be about instructions given at the time to overcome lack of trial counsel's file? The judgment suggests thorough contemporaneous records are important ([23]-[25]).
The line between reasonable tactical restraint and material irregularity: The Court accepted a 'small target strategy' as reasonable given the evidence ([65]). The boundary remains fact sensitive. Future disputes will hinge on whether an appellate court concludes an omission had an objectively reasonable explanation, or conversely, whether the omission removed a 'fairly open' possibility of acquittal ([19], [21], [66]).
Use of post-trial affidavits from potential witnesses: the Court admitted affidavits from Barran and the appellant but noted inconsistencies and the absence of cross-examination; it relied on what the defence had (or had not) told counsel pre-trial to judge reasonableness ([41]-[46]). Unresolved is how courts should weigh late statements from absent witnesses, particularly where trial counsel is unavailable to explain tactical choices (as here, counsel had died) ([21]).
The assessment of inducement in confessional evidence when the accused gives contradictory sworn accounts: the appellant swore at the voir dire that the interview was voluntary but later in cross-examination claimed she lied in the interview due to withdrawal and inducement ([15], [53], [55]). The decision shows appellate courts will treat such contradictions skeptically, but exact rules on when post-hoc denials can overcome voir dire findings remain open in borderline cases.
Practical takeaways for practitioners: keep detailed contemporaneous instructions and defence file notes; be cautious about calling witnesses who may be heavily impeached; and, when confessional evidence is at issue, ensure voir dire examination is thorough and documented so that later appeals cannot easily recharacterise voluntariness.
Director of Public Prosecutions (Queensland) for the respondent
[1] KEANE JA: I have had the advantage of reading in draft the reasons of Chesterman JA. I agree with those reasons and with the order proposed by his Honour.
[2] MUIR JA: I agree with the reasons of Chesterman JA and with the order he proposes.
[3] CHESTERMAN JA: On 26 August 2008, after a four day trial, the appellant was convicted of one count of trafficking heroin, eight counts of supplying heroin and one count of possessing heroin. The counts of trafficking and supplying were alleged to have occurred between 30 November 2005 and 3 August 2006. On 16 October 2008 the appellant was sentenced to six years' imprisonment on the trafficking count, three years for each of the supply counts and 12 months' imprisonment for the count of possessing heroin. All terms were to be served concurrently. A recommendation was made that the appellant be eligible for parole after serving 20 months.
[4] The appellant has appealed against her convictions for trafficking and supplying heroin, though not for possessing it. An application for leave to appeal against sentence was abandoned.
[5] She appeals on the ground that her convictions constitute a miscarriage of justice occasioned by her inadequate representation at trial. In particular she complains that her counsel failed signally to present her case to the jury, and failed to advance arguments which would have increased her chance of acquittal.
(a) Evidence from a number of police officers who secretly observed the appellant on two days in August 2006;
(b) The evidence of one Giorgatzis who testified to buying heroin from the appellant on a number of occasions; and
(c) A record of interview given by the appellant in which she admitted to supplying heroin to a number of others.
[8] On 2 August at 3.17 pm the appellant was intercepted. A gram of heroin was found in the ashtray of her car tied in a piece of freezer bag. $269 was found on her person.
[9] The appellants' unit, which she shared with Barran, was searched. In the course of that search police located a rubbish bin containing freezer bags with severed corners. In addition to the bags, a set of digital scales were also found.
[10] Giorgatzis was one of the men whom police observed approach the appellant in her car on 2 August 2006. After they separated Giorgatzis was followed, apprehended and questioned. He gave a statement in which he said inter alia:
"At approximately 1.30 p.m. I got to the train station. I rang the number again. A person I know as Marianne (the appellant) answered the phone and ... asked if I was already there.
...I said, 'Yep.' She said, 'I won't be long'. At approximately 25 to 30 minutes later Marianne arrived driving a gold Falcon. I jumped out of my car and got into her car and sat in the passenger seat ...
...I gave Marianne $100 cash and she gave me a small plastic bag cut and tied at the top. Inside the bag was about a quarter of a gram of a white powdery substance which I know to be heroin ...
... as I had bought it previously from Marianne and Brett and I would say that I purchased $100 amounts of heroin from them at least 10 times previously.
After Marianne gave me the packet I got back into my car and started to head home. The police intercepted me on Ipswich Road and conducted a search of my vehicle. I then voluntarily attended the City Police Station where I provided this statement to Constable ... Sharkey."
Giorgatzis also told the constable that no drugs were found on his person or in his car when he was apprehended because he had thrown them out the window.
[11] When called to testify at the appellant's trial Giorgatzis gave quite a different account. He said that on the day of his apprehension he had met some friends "regarding a paint job". He was a painter by trade. A fence on one of their properties had been defaced by graffiti. He had agreed to paint it. The meeting with the appellant at the Salisbury Railway Station was to discuss the painting. It had been arranged in a telephone conversation between Giorgatzis and Mr Barran. He arrived early and waited about 40 minutes before the appellant came. He denied knowing the appellant well or having met her in the past "much at all". On the occasions he did meet her and had paid money he had done so because he "was actually paying off a debt" that his brother owed to the appellant and Mr Barran. The brother had damaged a car which was, on the tangled account given, in the possession of the appellant and Mr Barran but owned by a car rental company. For a reason that does not appear to have been articulated clearly Mr Giorgatzis felt obliged to make reparations to the appellant and Mr Barran for his brother's conduct.
[12] This evidence was in such stark contrast to what he had told the police that the prosecutor successfully applied to the trial judge pursuant to s 17 of the Evidence Act 1977 (Qld) to prove his earlier statement incriminating the appellant. The consequence was, pursuant to s 101 of the Evidence Act, that the jury could accept the contents of the statement as evidence of the facts stated.
[13] The third category of evidence was the record of interview. On 1 March 2006 the appellant was detained and interviewed by two police officers about encounters police had observed between the appellant and others, of the kind described in paragraph [7]. The interview was recorded visually and aurally. An edited version of the interview was put into evidence and played to the jury.
[14] In the interview the appellant said that her current occupation was a prostitute, and that most of the women she knew who worked in the occupation were addicted to heroin. She said she had worked with a woman, Nicola Hound, and admitted to supplying heroin to Ms Hound on six occasions. She was paid between $100 and $250 for each supply. She admitted also that she had assisted her de facto partner Brett Barran on two occasions to supply heroin to one Peter Litster.
[15] Counsel for the appellant objected to its reception into evidence. A voir dire was conducted to ascertain whether, as the appellant contended, she had been induced to give the interview by a promise of favourable treatment from Constable Russell, the investigating officer. The favour was identified as a promise that if the appellant agreed to the interview she would, at its conclusion, be given bail and allowed to go home.
[16] Having heard evidence from the appellant and Constable Russell the trial judge admitted the interview. Her Honour pointed to the appellant's very lengthy criminal record and her vast experience in dealing with police officers with respect to criminal charges suspected or charged against her. Most of the charges were for possessing or dealing in drugs for which, for the most part, the appellant had been released on bail without agreeing to be interviewed. Her Honour pointed also to the fact that the appellant testified that she had not been asked by the police interviewers to give any particular answer and had not been told what to say, or not to say, in response to any particular question. In this state of affairs the appellant was asked in the course of the interview:
"... before I ask you any questions I must inform you that you do have the right to remain silent. This means you do not have to say anything ... unless you wish to do so. ... Do you understand this warning? - Yes.
... has any threat, promise or inducement been held out to you today to take part in an electronic record of interview? - No.
Are you taking part in this interview of your own free will? - Yes."
[17] The appellant also gave evidence at the trial. She said that the meetings observed by the police were not for the purpose of selling heroin but for the purposes of arranging prostitutes for the "clients" who met her in the various car parks. She admitted to being a heroin addict and possessing the heroin found in her car. She denied supplying drugs to Giorgatzis and generally denied trafficking and supplying heroin. In cross-examination she gave the same account as Giorgatzis about receiving money from him to pay for repairs to the rental car. She claimed she lied in the answer she gave when interviewed because she was affected by heroin withdrawal and wanted to go home.
[18] The failures of counsel which the appellant submitted should be found to have wrought a miscarriage of justice are:
a. The failure to take a proof of evidence from the appellant;
[19] The legal principles are not in doubt. In TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 McHugh J said (149-150):
"The critical issue ... is not whether counsel erred ... 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? Secondly, 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 ... 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."
[20] In R v G [1997] 1 Qd R 584 Fitzgerald P and Thomas J said (587):
"... conduct by counsel will not automatically entitle an accused person to a retrial in every case; ... whether or not a new trial should be ordered will depend on the circumstances of each case; a new trial will generally not be appropriate unless incompetent or improper conduct by counsel deprived the person convicted of a significant possibility of acquittal ... This test will not be satisfied, other than in 'wholly exceptional circumstances', by reference to decisions made in the conduct of the trial which might have involved both advantages and disadvantages for an accused person".
[21] Counsel who appeared for the appellant at her trial has since died. His brief and any papers which his instructing solicitor generated for the purposes of defending the appellant cannot be found. A statement addressing the appellant's contentions about him was not taken from counsel before his death. His solicitor has sworn an affidavit concerning her retaining and instructing of counsel. It is not very informative.
[22] The appellant did not press the first three of the forensic failures cited in the submissions. They can be quickly disposed of.
[23] It appears right that no proof of evidence was taken from the appellant prior to her trial. This complaint seems to be levelled at the solicitor who, as far as one can tell from the fragments of explanation proffered by the appellant, was retained late to replace another firm. Nothing is said about the circumstances which led the appellant to change solicitors, nor how long prior to the commencement of the trial the change occurred. What is said is that there was a substantial conference between the appellant, her solicitor and counsel during which the appellant's instructions were taken and recorded in handwritten notes by the solicitor. At the conclusion of the conference the appellant signed the notes as a correct record of her instructions.
[24] There is no material to suggest that the notes were not comprehensive and a satisfactory substitute for a proof of evidence.
[25] The material does not show what "any other potential witness" (apart from Barran) might have been able to say in the appellant's defence. Her present solicitor deposed that:
"On 3 July 2009 the appellant swore ... that prior to her trial she instructed her lawyers that there were witnesses relevant to her trial. These ... included:
[26] Giorgatzis was a witness for the prosecution. His statement was, no doubt, provided to the appellant well in advance of trial. The appellant does not depose what it was that Giorgatzis might have said that would assist her case. The statement given to the police made him an improbable defence witness. Anything he said in contradiction of that statement would lead, as it did, to his discredit.
[27] Whether Barran could have been a useful witness for the defence will be discussed shortly. Anna Caric is the appellant's daughter. An interview between Ms Caric and the appellant's solicitors revealed that there was nothing she could say relevant to the charges against her mother, or any defence to them. Nicola Hound is the woman to whom the appellant admitted supplying heroin. Despite the considerable time that has elapsed since her conviction and the filing of the notice of appeal the appellant has not provided any information as to what Ms Hound might have said.
[28] There is no substance in the complaint that the persons identified could have assisted the appellant's defence.
[29] The appellant in her affidavit of 3 July 2009 does assert that she "wanted to apply for an adjournment of the trial". She does not explain what ground might have been advanced to the trial judge for the adjournment or when it was, relative to the commencement of the trial, that she spoke to her lawyers about an adjournment. The former solicitor who provided an affidavit offers no corroborating evidence for the appellant's assertion. It is not shown what advantage may have accrued to the appellant from an adjournment. If obtaining testimony from the identified witnesses was the object of the adjournment there is no substance in the complaint that no adjournment was sought. There is no basis for thinking that the witnesses could have assisted the defence.
[30] There were four complaints of substance. The first was that Giorgatzis was not questioned by the appellant's counsel so as to adduce evidence that the statement he gave to the police, so damaging to the appellant, was false and was a result of police coercion.
[31] The genesis of the complaint is the explanation Giorgatzis gave the Crown Prosecutor on the voir dire for the difference between the contents of his statement and his evidence-in-chief at the trial. This was the evidence:
"Are the contents of the statement what you told the police officer Sean Sharkey on the 2nd of August? - Sort of.
...Well, what did you tell Constable Sharkey on that day? - ... from the beginning I basically told him that I was going there (the railway station) to see them (the appellant and Barran) about painting. He kept throwing things at me about they got me for supply, bla, bla, bla, bla. He then said to me, 'We're taking you into the police station to strip search you.', and basically I just went along with everything he said.
... I just kept going along with it 'cause I just wanted to get out of there."
[32] The appellant's counsel did not question Mr Giorgatzis on the voir dire. As I mentioned the trial judge gave the prosecutor leave to cross-examine Giorgatzis on his statement the contents of which he admitted telling the police. The ensuing cross-examination on behalf of the appellant was brief. Relevantly it was:
"... you say in your statement ... you gave Marianne $100 cash 'which she gave me a small plastic bag cut and tied at the top. Inside the bag was a quarter of a gram of white powdery substance which I know to be heroin.' Now, were they your words? - My exact words? Yes? - No, not really. Like, when I was writing this statement here the police officer said to me, 'Come on, mate, we've got to make it sound like it's you.' ... I'm not too good at ... explaining myself unless I have someone actually helping me ... I didn't voluntarily for a start go to the police station ... I was actually being taken in to get strip searched ...
You weren't strip searched? - First of all, it was they're going to wait for the police dogs to come ... That didn't happen and then I was taken away to get strip searched."
[33] The appellant argues that counsel should have cross-examined Giorgatzis to have him repeat his claim that he made the statement in response to a threat from Constable Sharkey that he would be charged with supplying drugs if he did not. It is submitted that the failure to prove the statement false by showing it was a fabrication to placate the police and avoid a serious criminal charge worked seriously to the appellant's detriment before the jury.
[34] The argument is met by the observation that the explanation which the appellant wanted advanced to discredit the statement was in fact given. Counsel elicited from Giorgatzis that he went reluctantly to the police station, that his account of relevant events was prompted by Constable Sharkey and that he provided the information which he gleaned the police wanted from him out of fear that if he did not an unwanted close encounter with the police dog awaited, and/or that he might undergo the indignity of an intimate search.
[35] The question which the appellant complains counsel omitted to ask might have produced another, kindred, reason for giving the police false information. That was the threat of being charged with supplying drugs. There are good reasons for thinking that would have been a dangerous topic. It would have squarely raised the question whether the police in fact had evidence to justify charging Giorgatzis with supplying drugs. If his answer was that there was no such evidence because he was not a drug supplier then his sworn rationale for giving a false statement would be seen to be threadbare. If he said, on the contrary, that there may have been evidence implicating him in supplying drugs the appellant's case would have been severely damaged. It would have appeared that a known or suspected supplier of drugs met clandestinely with the appellant at the Salisbury Railway Station.
[36] Wise counsel may well have thought the topic better left alone, especially as the essence of what Giorgatzis could say to explain away his statement had been elicited.
[37] In any event Giorgatzis was a discredited witness. He had given two wholly inconsistent descriptions of his meeting with the appellant. The one given in his evidence-in-chief, supportive of the appellant, was risible. No sensible hope could exist that his exoneration of the appellant might be accepted.
[38] The next complaint is that Barran was not called to give evidence, either on the voir dire with respect to the record of interview, or at the trial.
[39] Having lost the point on the voir dire counsel for the appellant did not renew the contest before the jury. The complaint is that whether on the voir dire or at the trial Barran should have been called to offer corroboration that the interview was induced by the promise of a prompt release on bail.
[40] The appellant deposed in her recent affidavit that after their arrest on 1 March 2006:
"(2) The police allowed Brett and I to have a cigarette together on three separate occasions during the ... day. ... police officers were ... a few metres away.
(3) During these conversations Brett told me that the police wanted to make him a deal and get him to say who he bought drugs from. He told me that he didn't want to endanger his life. He said that the police had told him that if he provided a statement they'd let me go. I told Brett that the police officers told him that I would get bail if I made a statement about supplying drugs.
(4) Later in the day, Brett and I were taken into an interview room and left alone. I was ... sick from heroin withdrawal, strung out and needed a fix. The police officer could see that I was sick and kept saying that I could get bail if I gave them an interview.
(5) Brett told me that I should go home and to just tell the police what they wanted to hear so that I could get home."
[41] Barran said, in an affidavit of 30 June 2009:
"(3) In the time that I have known her (over 10 years), I have never seen (the appellant) supply drugs to anyone despite being addicted to heroin herself. I know that (the appellant) used to work as a prostitute to help pay for her drug habit.
(4) On 1 March 2006 we were both arrested ... in the morning and taken to the city CIB ... .
(5) During the day, the police officers let (the appellant) and I talk to one another downstairs ... We were left alone when this happened ... the police officers were a few metres away ...
(6) (the appellant) told me that the police officers wanted her to do an interview and admit to supplying drugs. (The appellant) said that she did not want to do an interview.
(7) Later in the day ... (the appellant) and I were upstairs together and alone in the interview room.
(8) I told (the appellant) that the police ... had said if she did an interview they had promised not to charge her with trafficking ... only ... with one supply with a friend ... and that she'd get a non-custodial sentence ... The police had told me that (the appellant) would only get this lower charge if I gave a statement saying who I bought drugs from. They also said that she'd get bail (in the morning) if she did an interview...
(9) I told her to do an interview ... I told Mary to be careful what she said, and that the police had told me that she wouldn't be charged with trafficking ..."
[42] Barran's affidavit is confusing. It appears to contain evidence of three inducements: one to Barran himself to reveal the identity of his supplier, and two made to the appellant to induce her to agree to an interview. The first inducement was a promise that she would not be charged with trafficking but only with one count of supplying heroin to a friend. The second inducement was that she would be released on bail. The confusion arises because of an apparent qualification to the first inducement; that the appellant would only "get this lower charge" if Barran identified his supplier. It is not easy to discern why the appellant agreeing to an interview and Barran identifying his supplier should be linked as the consideration for the promise of a lesser charge.
[43] It is noteworthy that the appellant has a different account of her conversations with Barran. According to her Barran said that the police had told her that if he gave a statement "they'd let me go". There is no mention of a lesser charge in return for Barran's assistance on the appellant's interview. She deposes to telling Barran about the inducement made to her. He does not mention that conversation. Nor does he say that he passed onto the appellant the intimation given to him that the appellant would be released on bail if she agreed to an interview. The curiosities make one reluctant to accept the affidavits at face value despite the fact that they were admitted without objection and neither deponent was required for cross-examination.
[44] There is however another more cogent reason for rejecting the affidavits as affording evidence that counsel failed in his duty in not calling Barran. It is that on her account of the instructions given to her solicitor and counsel there was no basis for their thinking that Barran might have corroborated her evidence. In paragraph (12) of her affidavit the appellant deposes:
"I told (counsel and the solicitor) about the circumstances leading to my giving a record of interview ... set out at paragraphs (2) to (6)".
I have reproduced paragraphs (2) to (5). Paragraph (6) is irrelevant.
[45] If those were the instructions they contained nothing to alert her lawyers to Barran's potential use as a witness. Crucially she did not tell them that Barran had also been told that she would be released on bail if she agreed to an interview. The only mention of Barran was in the context of an inducement made to him, not the appellant, and what would have been an inadmissible prior consistent statement by the appellant that she told Barran of the inducement made to her.
[46] That the appellant did not give her lawyers instructions about the usefulness of Barran as a witness appears also from her evidence on the voir dire. The appellant's only account, then, of what Barran had told her, was that he advised her:
"... to do the interview so (she) could get back to the premises and to (her) daughter, because there was no one there and the place was completely left wide open."
It is, I think, safe to conclude that that account reflected the appellant's only instructions about what Barran could say. That account offered no corroboration of an inducement made by police officers to the appellant along the lines she described.
[47] The circumstances are no different with respect to the complaint that Barran should have been called as a witness in the trial. In fact counsel initially intended to call Barran but struggled to find anything relevant that he might say. After the intimation that Barran might be called the prosecutor asked for an opening of his expected testimony. After a conference with him counsel indicated to the Court, in the absence of the jury, that Barran could say:
"... he was married to (the appellant). ... he knew that she was addicted to heroin (but) ... at no stage did she traffic or deal in any way with heroin ... She used it for herself."
[48] It is at once apparent that this evidence would not have helped the appellant. If accepted it proved only that the appellant had not dealt in heroin in front of Barran.
[49] Moreover the prosecutor alerted the appellant's counsel to the detail of Barran's criminal history which included several convictions for dealing in drugs. One conviction of particular relevance was the charge of supplying heroin, jointly with the appellant. The prosecutor pointed out that if Barran were called to bolster the appellant's credit he might well be cross-examined on his record which would destroy his credibility and reveal the appellant's criminal past.
[50] In these circumstances to call Barran would have been to risk gaining very little and paying an inordinately high price for the possibility. The decision not to call Barran appears eminently justifiable. In all likelihood his evidence would have done much more harm than good.
[51] One must bear in mind the Court sounded by Hayne J in TKWJ (at 158):
"... when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence?"
[52] The appellant's submission on the appeal was that her confession was fatal to the defence if not effectively countered; and that what was required was "a proper and thorough investigation of the appellant's case" to put before the jury in an endeavour to persuade it that her confession was false, the falsity being explained by the inducement. The argument comes down to saying that trial counsel should have led from the appellant evidence that her answers at interview were lies told in response to the inducement.
[53] There is a fundamental objection to the complaint that counsel failed to lead evidence that the appellant had given dishonest answers given in the interview. It is that the appellant swore on oath on the voir dire that what she said in the interview was the truth. She said when asked what she thought about the inducement:
"I believed them because ... I don't give interviews, and I believed what they were telling me, and I was trying to be helpful and answer their questions as truthfully as I could."
[54] It is at once obvious that counsel could not have asked questions of the appellant designed to elicit evidence that she had lied if her instructions to him were that what she said in the interview was the truth. Significantly the appellant does not depose in her affidavit of 3 July 2009 that what she said in the interview was false. That fact that she swore on oath that it was the truth makes it entirely plausible that those were her instructions.
[55] Certainly the appellant said in cross-examination that her answers were lies but the question to be addressed is why counsel did not ask her, in chief, whether she had lied. There is an obvious answer, not displaced by her change of testimony between what she said on the voir dire and in cross-examination at the trial.
[56] Viewed objectively the record of interview does not support an opinion that the answers were fabrications and falsehoods given to placate the interviewers and secure the appellant's early release. The admissions she made of supplying drugs were circumspect and evasive. When questioned about her contact with people to whom she had not sold drugs the appellant immediately and adamantly denied the fact and gave a plausible explanation for the contact which the police had observed. When questioned about the occasions on which she had been observed in her car speaking to people who approached her she was noncommittal and appeared forgetful.
[57] Another factor is that the appellant's evidence, contained in her affidavit, that she was "really sick from heroin withdrawal ... doubled over ... and really sick" appears demonstrably false. The visual recording of the interview shows the appellant to be normal in appearance and not discernibly affected by any symptoms. She admitted in cross-examination the accuracy of that depiction.
[58] The remaining complaints are that counsel did not address the jury:
1. On the reasons why the appellant gave a false confession to the police; and
[59] The obvious explanation for the first alleged failure is that counsel had been told by the appellant, conformably with her sworn testimony on the voir dire, that her answers given at interview were truthful. Another possible reason for avoiding the topic was that it would inevitably have drawn attention to the fact that the appellant was a liar: either when she said on oath that she told the truth in the interview or when she said at her trial, on oath, that she had lied in her answers.
[60] An attempt to persuade the jury in address to accept that the appellant's confession was false would have had as its focus the appellant's credibility. It was a topic of little attraction to an advocate.
[61] The same holds true for Giorgatzis' evidence. To invite the jury to conclude that his statement to the police was false must have drawn attention to what he said, at the trial, was the truth. That account was nonsensical. He said he met the appellant at Salisbury Railway Station to discuss painting a fence at Kenmore. The arrangement could have been effected over the telephone. The appellant lived at Kangaroo Point. It beggars belief that she would drive to Salisbury to discuss with Giorgatzis the painting of a fence in the western suburbs.
[62] The evidence advanced by Giorgatzis to explain why he had given cash to the appellant on several occasion is no more credible. He was, he said, paying off his brother's debt. The amount was unspecified, the payments were not receipted, and were made in cash at different locations to which Giorgatzis travelled to meet the appellant.
[63] The reality is that the case against the appellant was overwhelming. It included her confession and Giorgatzis' statement, admissible as to the truth of its contents, that he had bought drugs from the appellant on several occasions. There were as well the evidence of clandestine meetings in different locations with different persons two of whom were found in possession of heroin immediately after meeting the appellant.
[64] A fundamental difficulty with the appellant's explanation for the clandestine meetings was that they were unnecessary if they were, as she said, for the purposes of putting prostitutes in touch with those who wanted their services. The arrangements could have been made by telephone. Indeed there must have been telephonic contact with the men involved for them to know where to meet her. It is beyond belief that the same telephone call could not have conveyed information about the desired contact with the prostitutes. There is the added difficulty there is no evidence that any of the meetings observed by the police resulted in a sexual encounter.
[65] Faced with such an overpowering case there was little counsel could do or say to make an effective defence. As counsel for the respondent submits the tactic of a brief opening, succinct examination-in-chief and limited address is explicable as part of what he described as a "small target strategy". The more that was said the greater the exposure of the inconsistencies, contradictions and incredible explanations which underlaid the defence postulation. There was not much to be said for the appellant and it is not a fair criticism of her counsel that he did not say more.
[66] The appellant's complaints are without substance. It has not been demonstrated that counsel's conduct of the case deprived her of a chance of acquittal which was fairly open, or that any error by counsel affected the outcome of the trial. There was a reasonable explanation for each of the tactical choices made. They were dictated by the strength of the prosecution case and the weakness of the appellant's.
R
Caric [2009] QCA 319
(2002) 212 CLR 124
Appeal dismissed