R v G [1995] QCA 517

Court of Appeal (Qld)|1995-11-24|Before: Fitzgerald P, McPherson JA, Thomas J

The application for leave to appeal against sentence will therefore be allowed by adding that recommendation to the sentence.

I agree that the appeal against conviction should be dismissed. I do so essentially for the reasons given by Fitzgerald P. and Thomas J., which I have had the advantage of reading, save that I wish to reserve for future consideration the principles that should be applied to cases in which an appellant may successfully found his appeal on shortcomings or deficiencies in the conduct of the defence at the trial. The authorities helpfully collected in the reasons for judgment of Fitzgerald P. and Thomas J. were not referred to or canvassed on this appeal. They raise some difficult questions, about which it is, in my opinion, not prudent to generalise in advance and without the benefit of submissions from counsel for the Crown and the defence.

Without having information like that, it is in most cases difficult, if not impossible, to judge whether a particular course or decision taken by counsel at the trial was wise or foolish, prudent or fraught with risk, or hopelessly incompetent. Of this, the present appeal affords a compelling illustration. At the trial the complainant was not cross-examined about why the making of her complaint against the appellant was so long delayed. On the face of it, that is a matter that one might expect counsel to have asked her about. He did not. On the first hearing of the appeal, the appellant was accordingly allowed to amend his notice of appeal to add a ground that the trial miscarried due to counsel's failure to cross-examine the complainant with respect to her delay in complaining and her reasons for that delay.

That hearing was followed by a lengthy interval, in which affidavits of a sort were evidently filed on both sides; but the appellant, as was his right, declined to abandon his claim of privilege as regards communications with his previous legal representatives. For its part, the Crown adopted the stance that the privilege had been waived. The upshot was that the appellant by his solicitor advised that his affidavits would not be relied on, and they have not been.

When the appeal came on again for hearing, counsel who then appeared for the appellant submitted that it was possible from the Crown's material both to identify a letter which may have been the source of counsel's concern at the trial, and also to demonstrate that that concern was misplaced. The letter was, it seems, written long after the events with respect to which the appellant was charged; but it was written by the appellant; and it evidently revealed something that was highly unfavourable to him. The letter is said to have been mentioned in the depositions, presumably those at the committal hearing; but its text or its terms are not before us.

If there was such a letter, and it showed the appellant in a bad light, it does not take much imagination to realise its effect if it found its way into the evidence before the jury. In this Court, counsel for the appellant submitted that it would not have been admissible. He said its contents were hearsay; it was not probative of any facts in issue; and its prejudicial effect far outweighed its probative value. This is to overlook the fact that once a question is asked of a person about why she or he did or failed to do something, there is virtually no limit on the information that may be given in answer to it. In that event the answer to a question about the reasons or motives of a witness is not circumscribed by the protective rules of evidence excluding hearsay, secondary evidence, prejudicial matter, or any other factor that may have led to the action or inaction in question. Counsel who asked such a question might be considered incompetent. One who refrained from doing so cannot readily be censured for not doing so.

Counsel for the appellant submitted that it would have been possible to cross-examine the complainant about her delay in complaining without running the risk that damaging testimony would emerge, or would become admissible in re-examination. In the end, however, he seemed unable to formulate for our benefit an apt question for that purpose, or to demonstrate a way in which the matter could have been approached at the trial without attracting a serious risk that the appellant would probably, if not certainly, thereby have lost any and all chance of acquittal he might otherwise have had. Having read the written submissions which were handed up on the appeal, I am personally satisfied that there was no way in which such a risk would have been incurred by competent counsel.

Putting that question aside, I agree with the reasons of Fitzgerald P. and Thomas J. for concluding that the appeal against conviction in this case should be dismissed. I also agree that the application for leave to appeal should be allowed, and with the order their Honours propose in that regard.

While these complaints are easy to make, considerable time and effort is often necessary to determine whether they have any substance, even when they are baseless. This presents a major problem in an overloaded Court system in which the number of cases to be heard, especially criminal cases, is increasing and trials are growing longer, with a corresponding increase in the appellate workload and, because of the cost of legal representation and perhaps other reasons, more appellants are representing themselves. Almost invariably, the absence of competent legal representation adds to the burden on the Court, which is anxious to ensure that the unrepresented party receives appropriate assistance: cf. MacPherson v. R. [1981] HCA 46; (1981) 147 C.L.R. 512.

The mere fact that valid criticisms can be made of counsel's conduct of the trial does not mean that there has been a miscarriage of justice or that an appeal against conviction should be set aside. In Zullo, Pincus J.A. said "that there is a strong disinclination to allow an appeal on the ground that a decision taken by the appellant's counsel as to the mode of conduct of trial was mistaken", and, in Clinton, the English Court of Appeal said at p. 1187 that the circumstances must be "wholly exceptional" and that a conviction should be set aside on this basis only if it is, in all the circumstances, unsafe or unsatisfactory. This approach has since been approved in the Privy Council (Sankar v. Trinidad and Tobago [1994] UKPC 1; [1995] 1 W.L.R. 194, 200). In Birks, Gleeson C.J. may have gone further, when he said at p. 685:

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