R v Hunter and Sara [1999] NSWCCA 5 | Case summary

1 Meagher JA: I agree with Wood CJ at CL. 2 WOOD CJ at CL: The appellants were indicted in the District Court at Coffs Harbour on 4 February 1998, on the charge that they, on 22 May 1997, did rob Raymond Gordon Forbes of certain property comprising a wallet, $150 in cash and some personal papers, and immediately after the robbery did use corporal violence on him. This charge was preferred under s95 Crimes Act 1900, and carries a maximum penalty of penal servitude for 20 years. 3 At the conclusion of a five day trial, they were each found guilty of the offences charged. The appellant Sara was thereafter sentenced to a minimum term of penal servitude for 18 months to commence on 9 February 1998, and to expire on 8 August 1999. An additional term of 18 months was fixed to commence on 9 August 1999. The appellant Hunter was sentenced to a minimum term of penal servitude for 12 months, to commence on 9 February 1998 and to expire on 8 February 1999. An additional term of 12 months was fixed to commence on 9 February 1999. Hunter was granted bail on 25 June 1998, pending appeal. Sara was similarly granted appeal bail on 3 July 1998. 4 The appellants were represented by the same Counsel at their trial, but were separately represented during the sentencing proceedings. Each now brings an appeal against conviction and sentence. Although now separately represented, their appeals raise essentially the same grounds: first, that by reason of the alleged incompetence of their Counsel there was a miscarriage of justice; and secondly, that the verdicts were "unsafe and unsatisfactory" and should be set aside pursuant to s6(1) Criminal Appeal Act 1912. The Crown Case 5 It was the Crown case that at about 7.30pm on 21 May 1997, the victim went to the Coffs Harbour RSL club. He set out for the night with $30 in cash. Whilst there he won $210 on the poker machines. At 9pm. he went to the Coffs Harbour Hotel where he continued to drink. In the early hours of the following morning, he moved on to the nearby Penguins Nightclub. 6 At that club, the victim met the appellant Sara, who introduced himself as "Torres". The appellant Hunter was in his company. Sometime before 3am, as the bar was closing, the victim offered to bet Sara $20 that he would be able to purchase another drink. Sara accepted the bet. The barman refused to serve the victim the drink. He and Sara were escorted out of the premises by the hotel security officer. 7 As they walked into the alley behind the nightclub, Sara kept insisting that he was owed $20. The victim tried to explain that it was not a serious bet, but when Sara persisted with his demand, he pulled out his wallet and went to hand over $20. Sara knocked the wallet from his hand. It fell to the ground. Sara then struck him in the head near his right temple. The victim put up his arms to protect himself. As he did so the appellant Hunter, he said in chief, hit him in the side of the head from behind. The victim fell to the ground and covered his head and face with his arms. He was hit twice more whilst on the ground, but could not tell who had hit him while in that position. He heard both men swearing at him, but in cross examination he was less certain whether Hunter struck him. At best he said that he "sensed" his participation in the assault, and reconstructed his involvement from the circumstance that he had not seen any other persons in the vicinity. 8 As the victim recovered his footing he saw the two men crossing the road. He glanced around for his wallet unsuccessfully, and replaced a boot which had fallen off in the struggle. He saw Hunter running back toward him. He then began to run in a southerly direction down the Pacific Highway across West High Street past the Coffs Harbour Hotel. Hunter pursued him for a time, but gave up the chase outside the Coffs Harbour Hotel. The victim saw both appellants meet up at the entrance to the mall which runs off the highway. They walked down the mall together. 9 The victim returned to the entrance to the nightclub, making another search for his wallet. It was similarly unsuccessful. He did not notice anybody else in the vicinity either at the time he was struck, or was chased, or when he returned to the nightclub. The incident was reported to police, who arrived at the scene at 2.40am. They had been called by Mr. Todd, a Chubb security officer, who had been alerted by yelling from outside the Coffs Harbour hotel, where he was making a security check. After going outside, he saw two men run across the highway towards the man whom he had seen outside the hotel a little earlier shouting at them. 10 A taxi driver, John Arkan, was called to give evidence that he saw two men crossing the Pacific Highway from the Vernon Street intersection. While obtaining fuel at the Mobil Service Station a little way up the highway, he saw them again. The engaged his taxi and he drove them to a house in middle Boambee. They were loud and boisterous. They man, who he identified as Hunter, said that he had dragged "this guy bald arsed across the road". That man added "then he fucking well said sorry - I didn't want any fucking sorry". They both laughed, and Hunter said, "then I hit him". 11 The fare of $15.80 was paid by the man with the shorter hair (agreed to be Sara) with a $20 note. Mr. Arkan was invited to keep the change. As he was backing his taxi out of the driveway two police officers arrived and spoke to him. 12 A barman from the nightclub, Damien Cameron, gave evidence of seeing the two men at the Mobil Service Station, and of recognising them as the men who had left the club about 15 to 20 minutes earlier. He said that he had seen them arguing at the club with a third man over a bet. They were asked to leave when the conversation became somewhat tense. 13 Senior Constables O'Mahony, Gray and Black who had spoken to the victim and to Messrs Forbes, Todd and Arkan, entered the premises where the two men had been dropped off. As Senior Constable O'Mahony approached the house he saw a light, in what appeared to be a kitchen. He observed the two appellants in that room. He heard Sara say, "That's paid for the cab and our night out". There was a knock at the front door, and as Sara walked out of the room, Senior Constable O'Mahony saw Hunter pick up some cash from the kitchen bench and place it in his pocket. 14 Sara was arrested and searched. Police located $180 in notes (comprising three $50 notes, one $20 note, one $10 note) and coins to the value of $17 on his person. Hunter was also arrested and found to have $240 in cash (comprising four $50 notes, two $10 notes, and one $20 note). The victim's wallet was found by Robert Rose in the gutter on the corner of Vernon Street and the Pacific Highway at about 5.40am. Some cards and personal papers of the victim were lying nearby. Mr. Rose took the wallet and papers to the police station. Some further personal papers were retrieved from the same location by police a little while later. 15 The appellant Hunter denied any wrongdoing and said that he required legal advice before being interviewed. He declined to participate in an identification parade. Sara took the same course. As a result of an incident occurring between Sara and a police officer, while he was being strip searched, he was additionally charged with an offence of indecently assaulting that officer. That matter was later no billed. 16 The banknotes found in the possession of the appellants were entered into their property, but not tested for fingerprints. Detective James explained that prior attempts to obtain identifiable fingerprints from banknotes had proved unsuccessful, and for that reason the notes went untested. The wallet and some of the papers that were recovered from the roadway were, however, tested, with a negative result. 17 An admission was made by counsel, on behalf of both appellants, pursuant to S184 of the Evidence Act 1995, that Mr. Forbes had won a jackpot at the RSL on the night in question, and had received a sum of money from that source. The Case for Hunter 18 This appellant gave sworn evidence to the effect that he had been employed by Bay Island Taxi Service in Queensland as a captain of a motor vessel and earned $560 gross each week. He was a friend of Sara and had travelled with him to Coffs Harbour in May. They stayed with Sara's uncle in Boambee. He had brought about $600 in cash with him from Queensland. On the evening of 21 May he, Sara and two other people went to the Hoey Moey hotel, where he drank ten to twelve glasses of rum and coke, and four or five "shooters" of straight Benedictine, before going on to the Penguins nightclub. 19 He acknowledged having spoken to the alleged victim (Forbes) at the nightclub. At about 2.30am Forbes and Sara were standing together at the bar, while he was sitting at a table. Sara came over and said that a guy had made him a $20 bet that he would get a drink after closing. He went to the bar and realised there were no drinks available. Sara left. A short time later he walked to the door, where he spoke briefly to the bouncer, and then proceeded out into the alley. He estimated that he had spent between $160 and $180 that night of the $600 that he had brought with him. 20 He said that he saw Sara and Forbes standing on the footpath. As he approached he saw Forbes hand over some cash, and then pull the money away, before taking a swing at Sara. The latter hit him a couple of times and Forbes fell to the ground. He stood back for a while and then walked over toward them. As they wrestled on the ground he said to Sara, "don't worry about it mate, it's not worth it". He grabbed Forbes by the foot and dragged him away. Forbes said "I've had enough". He let him stand and then chased him down the road towards the hotel, in order to get rid of him. He stopped near the West High Street intersection, and then met up with Sara again. 21 He denied striking or punching Forbes, and said that he did not see or do anything with the wallet after Forbes had made as if to give the $20 to Sara. 22 He said that he was very drunk but was able to walk to the Mobil Service Station where they got into a taxi. He agreed that he and Sara were laughing and joking, but he could not recall any particular conversation they had. The taxi driver was given a piece of paper with their address written on it. 23 He said that the words spoken in the kitchen by Sara were "that was a good night out", and not "that's paid for the cab and our night out". He said that he had pulled all the money out of his pockets and placed it on the table, to see how much he had left. 24 When he was taken to the police station he did not realise what it was about. It was not until Detective James told him that he was there in relation to a robbery that he realised it was serious. He advised police that he wanted legal advice before making a statement, as he was still under the influence. He said that his requests to make a telephone call were refused. 25 He had only one prior entry on his criminal record. For an offence of behaving in a disorderly manner, he had been fined $50, without a conviction being recorded, in the Cleveland Magistrates Court on 5 September 1995. Evidence of his good character, that would have been available from several sources, was not called in his trial, but it was tendered in the sentencing proceedings. Its effect was to show that having attained Master Class V qualifications, he had secured the command of a sixty foot catamaran, carrying 120 passengers, between the Island and the mainland. He had a steady relationship and marriage plans in conjunction with a planned move to Cairns. He had a very positive reference from his employer, as well as references from Island residents as to his courtesy, reliability, honesty and maturity. Oral evidence was also called in the sentencing proceedings from his step father, mother, partner and recent employer, all confirming his positive character and suggesting that the offence of which he had been convicted was foreign to his nature. That evidence, it may be assumed, would have been available to be called at the trial had a decision been made to place his character before the jury. The Case for Sara 26 The appellant Sara, who similarly lived on Russell Island in Queensland, gave sworn evidence. He said that he travelled to Coffs Harbour to sell his car with his uncle's assistance. The appellant Hunter accompanied him because he did not have a driver's licence. He took $600 in cash with him. After drinking with Hunter at the Hoey Moey they went on to the Penguins nightclub where he met Forbes. After going to the bar to get another shout, he was informed that it was closed. Forbes bet $20 with him that he could get another drink. When the barman refused, he told Forbes that he owed him $20. Forbes changed the subject, and said that he only had a $50 note. He told Hunter that he was leaving and walked outside. 27 Forbes, he said, approached him outside the club with his wallet open. He saw that it contained only one $20 note. Forbes took out the note, placed it in his hand, and then snatched it back before throwing a punch at him, which missed. Sara punched him twice in the head and wrestled with him on the ground. He heard Hunter say "it's not worth it". Hunter dragged Forbes away and chased him down the road. He remained where he was standing. At no time, he said, did either he or Hunter go near the Vernon Street intersection where Forbe's wallet was later found. He did not take the wallet or any money from it. 28 He said that he walked with Hunter to the Mobil Service Station where they engaged Mr. Arkan's taxi. He denied that Hunter said in the taxi that he had hit anyone. While they were in the kitchen he instructed Hunter to keep quiet as his uncle and aunt were asleep upstairs. Any conversation that occurred, he said, was in a whisper. The window to the kitchen he said was closed, and the blind was drawn. He denied making the observation attributed to him by Senior Constable O'Mahony. 29 He later saw his uncle talking to a police officer. He realised that it was to do with the fight, so he went down to the police station. It was not until later that he realised that he was being investigated in relation to a robbery and assault. He told police that he was too drunk to make a statement. He went to sleep for a short while at the station. When he woke he was strip searched. 30 The uncle of Sara gave evidence to the effect that the kitchen window was fitted with a 'block out' blind. The window was always kept shut, and the blind was "almost closed", which he defined as 90% closed. It was in that condition before he went to bed on the evening of 21 May, and was still in that condition the following morning. He said that from the driveway, even if the window and blind were open, very little of the kitchen could be seen, and with the blind almost shut, the fittings in the kitchen could not be seen. 31 Sara had a significantly more extensive criminal record than Hunter, commencing with an entry on 5 November 1985 when he was discharged, without a conviction being recorded, on a recognisance to be of good behaviour for twelve months on a charge of unauthorised dealing with shop goods. His subsequent record included convictions in August 1986 for counts of possession of a prohibited plant and of a utensil, for which he was fined; entries in July 1987 for stealing and false pretences, for which he was respectively convicted and released on probation to be of good behaviour for twelve months, and ordered to pay compensation (without a conviction being recorded); convictions in November 1990 on two counts of supplying a dangerous drug for each of which he was fined; convictions in February 1991 for two further counts of supply dangerous drugs, which for which he was ordered to perform community service; a conviction in August 1991 for possession of a utensil for which he was fined; a conviction in October 1993 for false pretences for which he was fined; and convictions in May 1996 on six counts of false pretences for which a recognisance to be of good behaviour for six months was imposed. In the meantime, in November 1993, he was sentenced to suspended terms of imprisonment for 6 months and 3 months in respect of breaches of probation and community service orders, which had earlier been imposed in relation to offences for driving while disqualified. 32 His character was similarly not placed into issue. He was unemployed and on a disability pension, by reason of an earlier motor vehicle accident. He was engaged to be married. For the purpose of the sentencing proceedings, a number of character references, gathered after conviction, were tendered, the effect of which was to suggest that, despite spending most of his childhood in foster care or in State homes, having encountered the earlier problems with the law apparent from his criminal history, and becoming involved in the serious motor vehicle accident which led to the cessation of his employment, he had nevertheless managed to purchase a house and to become actively involved in a Youth Action Group on Russell Island He was well thought of by the Island community being described as a person who was reliable, generous, honest and trustworthy. 33 The effect of this evidence would have been to water down, but not to eliminate entirely the suggestion of bad character conveyed by his criminal antecedents. The number of offences recorded may, however, have been somewhat misleading, since it is clear from the sentences imposed that they were not regarded as sufficiently serious to attract immediate terms of imprisonment. Most were in fact dealt with by way of fine, the more serious items attracting either suspended sentences or community service. SUGGESTED INCOMPETENCE OF TRIAL COUNSEL 34 Material was placed before the Court in the form of affidavit evidence, from each appellant, their solicitors, the Crown Prosecutor, solicitors from the Office of the DPP, and from Counsel who appeared for the appellants at their trial. The appellants and defence counsel were cross examined upon those affidavits. The grounds of incompetence in representation, with which this material, and this ground of appeal, were concerned, relate to a number of matters. 35 So far as Hunter is concerned, they relate to: (a) the failure of counsel to advise him that the appellants should be separately represented at their trial; (b) the failure to call evidence of good character on his behalf, or to explore the precise nature of the one matter on his record; (c) errors of fact or of law, made during the closing address by defence counsel, which required correction by the trial Judge and censure of counsel, in the presence of the jury. These related to the reference made by counsel to the circumstance that conviction of the appellants would lead to their imprisonment; that motive needed to be proved by the Crown; that it was the Crown case that Forbes had been struck twice from behind (when in fact he said that he had only been struck once in that manner), and that a club security officer (William) should have been called by the Crown. (d) incidents of apparent inexperience by defence counsel, during the examination or cross examination of witnesses, for example his habit of talking over witnesses which attracted either a rebuke or correction by the trial Judge, and his failure to ask pertinent questions that made it necessary for several witnesses to be recalled for further cross examination; (e) arranging for a semi-retired local solicitor to attend for the first day of the trial to assist him, contrary to Bar rule 80; (f) failure to advise the appellants adequately on the charge and penalty that they were facing, so far as it had been held out to them that the maximum penalty for the offence was only twelve years (when it was in fact 20 years), and that there was no risk of them facing a sentence of imprisonment if convicted; (g) failure to take him or Sara through the police brief or statements of the witnesses before the trial, in conferences; (h) failure to explain his option of giving evidence or remaining silent at his trial. 36 The appellant Hunter said that his reason for retaining Counsel, who was briefed on a direct client access basis, was that he understood him to be acquainted with relatives of his co-accused. 37 In a supplementary affidavit, he deposed that in November 1997, he asked counsel whether he should be separately represented at his trial. The reply from counsel, he said, was to the effect that it would be better for him to appear for both accused as he was aware of a similar case where the accused had been separately represented and ended up going to gaol. He added that, had he been advised to engage separate counsel either before, or during the trial, he would have done so. 38 He also deposed to the fact that, prior to the trial, he had supplied to his counsel a substantial number of references attesting to his good character, and informed him that these referees, as well as his partner and his employer, were available to give evidence on his behalf. According to him, his counsel said that it would not be advisable to use this evidence at the trial because it would reflect adversely on his co-accused. Had he understood the benefits of calling good character, he said that he would have insisted that the material be used in the trial. 39 The appellant Sara relied on the same matters, and raised a number of additional complaints concerning the conduct of his case by defence counsel. Thus it was that he asserted that: (a) Counsel agreed to conduct the trial for the two appellants for a fee of $500 each, upon the basis that it was a simple matter that would be completed within a day, an estimate which obviously had to be wrong; (b) he was late in appearing for his trial because of advice received that it was unlikely to proceed, and was then disadvantaged because counsel failed to seek an adjournment, even though he was suffering from a temporary facial palsy and a severely lacerated hand; (c) on the morning when he was advised that the trial was to proceed, he was, for the first time, informed that he needed to provide an additional sum ($285) by way of fees for another person to assist defence counsel, that being a person to whom he had never spoken, who was present only for the first day of the hearing, and who turned out to be a semi retired solicitor practising on a part time basis from a farm in the district; (d) defence counsel made an admission on his behalf (and on behalf of Hunter) without their instructions, that the victim had won a jackpot at the RSL club during the night in question, and had received a sum of money from that source. This admission was in fact offered and given in response to a question asked by the jury, during the case for the accused, in the following terms: "Can the Court establish that Mr. Forbes actually had money in his wallet, that is winnings from the RSL?" The admission was made following counsel's assurance to the trial Judge, that he had personally checked with the club, and had confirmed that the victim had won a jackpot. This arose from an exchange concerning the omission of counsel to challenge the victim along the lines that he had only a $20 note in his wallet. (e) he received no advice as to whether he could, or should, exercise the right not to give evidence at his trial; nor was there any exploration with him of the factual issues, or of the Crown case, other than in the initial conference, or any discussion with him of the evidence that he should give other than advice to the effect that he should endeavour to confine his answers to 'yes' or no without any further expansion; (f) his assertion, made as far back as the initial conference, that there was never more than $20 in the wallet of the victim at the time of the alleged incident, was not properly placed before the jury, and was effectively conceded as incorrect by reason of the admission that was made concerning the jackpot, and by the terms in which the victim was cross examined, so far as it was put to him that he did not know how much was in his wallet, other than that he had $50 notes in it; (g) in so far as either, in the cross examination (particularly of Senior Constables O'Mahony and Gray), or in his address, counsel had spoken in terms suggesting an acceptance by him that there had been a "robbery" and an "assault" of the victim, this was without instructions from him and was counter productive for his case; (h) the explanation for his act in taking a swing at Mr. Forbes, as an act taken in self defence following a punch thrown at him, was not sufficiently put to the jury; (i) from the outset he was advised by defence counsel that he was at no risk of receiving a prison sentence if convicted, and that it was not until the jury delivered a note suggesting that they were deadlocked, before the Black direction was given, that the possibility of a plea to the lesser offence of assault was discussed. (j) defence counsel failed to raise, through cross examination, the possibility that another patron leaving the club, or a passer by, had seen and picked up the wallet after it was knocked from the victim's hand; (k) defence counsel, in his cross examination of Senior Constable Gray, secured his corroboration for the admission in the kitchen of which Senior Constable O'Mahony had given evidence, even though the Crown Prosecutor had not led that evidence in chief through Gray; and failed to put to Senior Constable O'Mahony that the conversation did not occur at all (as was his instructions); (l) defence counsel, in his cross examination of Senior Constable O'Mahony, painted a picture of Sara being drunk, noisy and abusive when spoken to by police and, despite a caution from the trial Judge, repeated this line in his cross examination of Senior Constable Gray, a matter that was likely to rebound to his discredit in the eyes of the jury; (m) defence counsel displayed his incompetence by the manner in which he endeavoured to call evidence from the appellant in the trial, that saw him inviting an account in a narrative form after he had been stopped from leading the witness, and then cutting his evidence short, causing the trial Judge to ask some further questions of him concerning the important issue of whether it would have been possible to see into the kitchen, from the garden, in the way that the police had described. Counsel's complaint, in the absence of the jury, that he had not been allowed to examine the appellant as he had wished led the trial Judge to give him what he described as a 'lecture on evidence' concerning the way a witness should be examined; (n) defence counsel failed to object to a jury question concerning whether Sara had been "affected by anything else other than alcohol to cause his behaviour", which when put to Senior Constable Gray, evoked a positive response, followed by the explanation: "Could've been some form of a drug, they form similar influences in persons", even though the witness then acknowledged that he had found no material that would assist him to come to that conclusion; (o) defence counsel failed to appreciate the circumstance that, absent an adoption by the other accused, any "admission" made by Hunter in the taxi, or by Sara in the kitchen, was admissible only in relation to the accused who made it. Not only was this point not taken during the evidence, it was raised for the first time at the end of the summing up when the Crown Prosecutor persuaded his Honour to give a redirection to the jury concerning the matter. Although that redirection was appropriately given, the apparent failure of Counsel to direct his mind to the point was said to be a further circumstance demonstrating his incompetence. 40 Although not expressly relied upon by Sara as a ground of incompetence, it was the case that evidence was permitted to be led from Detective James without objection, concerning his attempt to secure an interview with the accused, in the following terms: "I said, 'I am Detective James and this is Detective Atkinson, are you Troy Sara' the accused said 'Troy but people call me Tory, turn that fucking machine off ', indicating the ERISP machine. I said 'it isn't on' the accused said ' it fucking is, the light's on ' I said 'settle down it's not going, look there are no tapes in there, I am making inquiries into a man being assaulted outside Penguins Nightclub early this morning, the man was also robbed of his wallet which contained a hundred and fifty dollars. I'm going to ask you further questions about this matter I want you to clearly understand that you're not obliged to say anything unless you wish as anything you say may later be used in evidence, do you understand that' the accused said ' I'm not fucking doing any interview, this is all shit, you cunts are picking on me , I want to speak to my solicitor' I said' who is that' the accused said 'he's in Brisbane' I said 'are you prepared to go in a line up about this matter' he said ' no, just fucking charge me' I said 'are you prepared to participate in an electronic recorded interview he said 'no'. 41 Sara similarly said that, at no time, was the question of separate representation discussed with him, nor was his entitlement to have separate representation explained, save so far as defence counsel said that it would be cheaper for 'you guys to go together'. Counsel agreed that he had not seen any need to discuss separate representation with Sara, since had he seen any potential conflict in interest, it would have been Sara for whom he continued to appear, as he was his "primary client". 42 Sara submitted, similarly to Hunter, that defence counsel had failed to recognise the separate issues that arose in relation to each accused which should have led to them being separately represented. The failure to recognise those differences, or the possibility that certain evidence may have been admissible in respect of one accused but not the other, as well as his election to conduct the trial as a single defence, it was submitted, meant that he was also deprived of the opportunity of a fair trial. 43 In this regard, attention was drawn to the cross examination of the witnesses Arkan and Senior Constable O'Mahony, in the course of which counsel framed questions in terms which assumed that the accused had acted in concert, when that was not an accurate representation of their instructions, or additionally in the case of Mr. Arkan, a fair representation of his evidence in chief. So it was that counsel asked Mr. Arkan questions in the following terms: "Q. But they were also talking about some sort of - did you think - what did you think it was they were talking about when they were talking about dragging him off the road and that sort of thing?" and "Q. but there is no doubt in your mind that they said they dragged him across the road?' which he then adopted. 44 Similarly he asked questions of Senior Constable O'Mahony in the following terms: "Q. They did not deny that they had anything to do with assaulting the man did they?" and "Q. They didn't deny they'd been in a fight in other words" propositions with which he did not express any disagreement. 45 Sara said that defence Counsel did not discuss with him the collection and placement before the Court of references in the event of him being convicted, or advise him of his right to call character evidence during the sentencing proceedings. The references that were available he said were gathered by his girlfriend, at his initiative. Further, he said that counsel did not take any instructions from him as to his antecedents until the morning of the proposed sentencing hearing. He similarly recalled counsel saying, before or during the trial, that it would not be advisable to raise Hunter's good character, because it would reflect adversely on his own position. 46 Sara also said that although the duty solicitor had indicated that he was eligible for legal aid, defence counsel indicated that he did not really need it, as he would 'only be in and out' and would get a 'slap on the wrist and a bond'. He added that counsel had never mentioned that the maximum available penalty for the offence was penal servitude for 20 years, and that he first learned of the possibility that imprisonment was a real option during the trial. Counsel gave a different version of events concerning the first of these matters, stating that when he discussed legal aid with Sara he was 'most emphatic' that he did not want it. He acknowledged, however, being in error as to the maximum available penalty. 47 Defence counsel provided a chronology of his involvement in the proceedings, the material events in which were recorded as follows: 22 May 1997- the appellants were charged and bailed to appear in the Coffs Harbour Local Court 4 June 1997 - a preliminary conference was held in which the police facts sheets were discussed, the procedures and rights of the appellants were discussed, some notes were made of the instructions given and they were asked to provide written summaries of the events (which were later provided) 5 June 1997 - the committal hearing was conducted as a paper committal: 20 June 1997 - request was made to Sara's solicitors in Brisbane, placing them on notice that details of his medical history may be required; 21 June 1997 - an application for a no bill was made in relation to Hunter, and an invitation was extended to vary the charge concerning Sara; 30 October 1997 - a conference was held with the appellants in which their summaries of events and the police brief were discussed, arrangements were made for character references to be obtained, and an inspection of the scene was carried out; 20 November 1997 - letters were sent to Sara and Hunter enclosing draft proofs of the evidence that each would be expected to give at their trial for checking, and completion or correction as necessary; and providing an estimate of the probable legal costs of a one day trial at Legal Aid rates (including fees to date on a shared basis); 12 December 1997 - an application was made to the District Court for a separate trial in relation to the charge of indecent assault against Sara; December 1997 - counsel inspected the home of Sara's uncle, and made inquiries at the Mobil Service Station, and at the Coffs Harbour RSL Club; 3 and 4 February 1998 - pre-trial conferences were conducted with the appellants, during which the possibility of offering a plea to a lesser charge of assault was discussed. 48 In his evidence defence counsel acknowledged that although he had formerly been a police officer and a detective of many years standing, he had only appeared as a junior to another counsel in three or four trials in the District Court, and that this was the first trial that he had conducted by himself. His area of practice, since coming to the Bar in 1991, he said was principally in the area of employment law. At the end of his cross examination he made a frank concession concerning his ability to conduct a criminal trial in the following exchange: "Q. Did it at any time cross your mind this may have been beyond you? A. Not a case of being beyond me, I well know my way around all these courts. I have been in them for nearly 50 years. However, by the time this trial was over I was quite certain I wouldn't do another one." 49 He explained that he had agreed to act for each appellant for the reason that he was so instructed. He said that he had not seen any potential conflict in interest or difference between their cases, although he accepted that the jury could have returned different verdicts for each. 50 That this was so is obvious since it was the case for Hunter that he had nothing to do with the bet, or with its attempted recovery, and that he intervened only after the exchange in the street over the money, and then only to break up the fight. Moreover, defence counsel put to the taxi driver in cross examination that it was Sara, and not Hunter, who said "I hit him". This was a matter of some significance for each accused. It was incriminatory of Sara, and it needed to be understood in the context that the victim, Forbes, had conceded in cross examination that he was unable to say whether Hunter had hit him at all. 51 Additionally defence counsel deposed to the follow matters: (a) he had asked the semi retired solicitor to assist him by taking a note of the evidence of the prosecution witnesses, and to give him advice, although he could not recall whether he was present beyond the first day; (b) he had been optimistic that the trial could conclude within a day; (c) he had secured an understanding with the Prosecutor on the morning of the trial, that he would accept a plea of guilty to a charge of assault, subject to the approval of the victim, but that was not carried forward as the victim would not agree, and he had discussed that matter with the appellants in the presence of the semi retired solicitor; (d) he went through the police brief, and the evidence likely to be called by the Crown, with the appellants either on 5 June or on 30 October; (e) he had reached a tactical decision that it would be 'too dangerous' to place evidence of Hunter's good character before the jury, because of his understanding of the earlier incident when Hunter had been charged after going to the assistance of a person involved in a fight in the street, and had explained to the appellant that the apparent factual similarity of the two incidents, and its element of "violence", was the reason for his decision, rather than any concern that he entertained as to the consequences for Sara; (f) he had discussed with the appellants on the morning of the trial, their option to give evidence, or to remain silent; (g) he acknowledged that he had erroneously advised the appellants that the maximum penalty for the offence charged was penal servitude for twelve years, although he had told them that it was a serious matter that was likely to attract a custodial sentence if they were found guilty of the offence charged (with its element of robbery), as distinct from the offence of common assault; (h) he did receive the instructions of the appellants before making the admission concerning the jackpot; (i) he had not considered it necessary to seek any directions from the trial Judge concerning accessorial liability or joint enterprise, as he had judged the matter as one involving an 'all or nothing situation' so far as Hunter was concerned; (j) he acknowledged that his cross examination of the police officers to show that the appellants were quite intoxicated produced 'the wrong answers', but said that his purpose had been to raise a doubt concerning their mens rea - ie the existence of their intention to steal the property in question; (k) he acknowledged his error in raising in his closing address, the consequences for the appellants if they were convicted of the offence charged, but explained that he had simply become "carried away". 52 The circumstances in which incompetence of trial Counsel may give rise to a miscarriage of justice, leading to intervention by a Court of Criminal Appeal, were examined by Gleeson CJ in Birks (1990) 19 NSWLR 677at 683 to 685. His Honour initially noted at 683: "In our system of criminal justice a trial of an accused person is conducted in the manner of a contest between the Crown and the accused, and that trial has many (although not all) of the features which attend civil litigation conducted in accordance with what is sometimes described as the adversary system of justice. To a large extent the parties to such proceedings are bound by the manner in which they conduct them. It is the parties who decide, for example, what information will be put before a tribunal of fact, and the tribunal bases its decision on that information. As a general rule, a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted. Decisions as to what witnesses to call, what questions to ask or not to ask, what lines of argument to pursue and what points to abandon, are all matters within the discretion of counsel and frequently involve difficult problems of judgment, including judgment as to tactics. The authorities concerning the rights and duties of counsel are replete with emphatic statements which stress both the independent role of the barrister and the binding consequences for the client of decisions taken by a barrister in the course of running a case." 53 His Honour then noted the tension between the principles governing the independent role of counsel, and the binding consequences for the client ,of decisions taken in the running of a case, and the power and duty of a Court of Criminal Appeal to correct a miscarriage of justice, observing at 684: "It would be wrong, however, simply to regard these as two competing considerations which must from time to time yield to some compromise. The principles as to the role of counsel and the capacity of counsel 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. It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common theme running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious". 54 His Honour cited with approval (at 685) the view expressed by the Lord Chief Justice in Ensor (1989) 1 WLR 497: "that if defending counsel in the course of the conduct of the case makes a decision, or takes a course, which later appears to have been mistaken or unwise, that generally speaking, is not a proper ground for an appeal. To that, however, his Lordship added the rider that 'if the court had any lurking doubt that the appellant might have suffered some injustice as a result of flagrantly incompetent advocacy by his advocate, then it would quash the convictions.' before continuing: "The relevant principles may be summarised as follows: 1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes ofthe client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of 'flagrant incompetence' of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention." 55 This statement of the law by Gleeson CJ in Birks has been adopted in several subsequent decisions of this Court (eg Igniatic (1993) 68 A CrimR 333; Sandford (1994) 72 A CrimR 160; and D Court of Criminal Appeal New South Wales, 22 February 1996, unreported. What does emerge from these decisions is that no single test of general application exists, by which it might be determined whether an error, or series of errors, of counsel has led to a miscarriage of justice. Each case will depend on its own facts and upon an assessment whether the errors made or incompetence displayed were of such a nature or consequence, in the particular circumstances of the case, as to have led to a miscarriage of justice. 56 The first matter of significance for the present case concerns the circumstance that counsel elected to appear for each accused, and did not advise them to secure separate representation, or ensure that they received independent advice on that question. 57 As I have observed earlier, there was a real difference between the cases of the two appellants in that Hunter (on his case) had not been party to the bet, or to any demand for its payment. At the highest he only became involved after the wallet had been knocked from the victim's hand, and that person had been struck by Sara. There was no direct evidence to suggest that he did anything to assist Sara in taking the money, or was there present ready to assist him in that activity. On his account, he did no more than break up a wrestling match, and chase away a man who he said, had tried to assault his companion. 58 Whatever may have been Sara's role, it was incumbent for Hunter's involvement to be examined by reference to the principles concerning joint criminal enterprise as discussed in Tangye (1997) 92 ACrimR 545; Clough (1992) 28 NSWLR 396 and McAuliffe (1993) 70 ACrimR 303 (affirmed on appeal by the High Court (1995) 183 CLR 108), a matter that appears to have been overlooked not only by Counsel but also by the trial Judge, who gave no relevant instructions in this regard. 59 A direct consequence of the single representation, and prosecution of a 'joint defence', was that the individual cases of the two appellants were not adequately separated in the addresses or in the summing up. Moreover, the possibility of different verdicts for each, and of any statutory alternative involving a lesser offence for Hunter, was left unexplored. 60 A serious question also arose, in respect of which Hunter was entitled to independent advice, concerning whether or not evidence of his good character should have been raised. It is difficult to see how counsel acting for both accused could have delivered impartial advice on this question. Raising the character of one of two accused alone inevitably invites speculation, by the jury, as to the position of the other accused, who in this case was the one against whom the prosecution case was a good deal stronger. 61 Additionally, there were some respects in which it would have been to Hunter's advantage, in the light of the manner in which the trial unfolded, to distance himself from Sara, including the circumstance that evidence was received showing that the latter had behaved very aggressively and had spoken to police in obscene terms, when they sought to interview him at the police station. Further, it was evident from the several questions asked, at the request of the jury, that they saw Sara's role (and possible motivation) as somewhat different, so far as they inquired whether he thought Mr. Forbes was gay, when it was prior to this incident that he claimed to have seen gay people in the mall, and whether he had taken some substance other than alcohol to make him behave in the way he did. None of these questions seems to have been relevant, and the fact of their asking invites the possibility that the jury were reasoning along inappropriate lines. Counsel did not address the admissibility of those questions. 62 Although there was something of an issue as to whether or not defence counsel gave the appellants any advice as to their representation, and if so what the advice was, it is in my view clear, for the reasons mentioned, that they should have been separately represented, and that counsel made a serious error in not ensuring that Hunter at least received independent advice on this question. 63 The next matter of significance relates to the decision whether or not to raise Hunter's character, a question that emerged during the trial, after defence counsel had led from him some material concerning his family background and his work history. The Crown Prosecutor, being concerned that an attempt was being made to raise character, cautioned defence counsel, at the short adjournment, that he was 'sailing close to the wind' if he did not intend to do this. Counsel replied that it was not his intention to do so, his purpose being merely to show that Hunter had money of his own (and did not need to steal money from Forbes). This was confirmed in open Court, in the absence of the jury, later that day. 64 Hunter agreed that he had gathered a portfolio of character evidence, which was presented in a folder, at defence counsel's request, before the trial. He denied that any explanation was given by counsel along the lines he described. It was his assumption that the portfolio would be used in the trial, since the single prior entry on his record related to a street offence, when he was aged about 22, had not involved violence on his part, and had not led to a conviction being recorded. He still considered himself a person of good character. It was his evidence (as well as that of Sara) that Counsel informed him, either before or during the trial, that he would not use the evidence in the trial because it would reflect adversely on his co-accused, and that in any event, it would not make any difference to the outcome. 65 The decision whether or not to open up character is often a difficult one, upon which minds may differ. It is one that needs a great deal of careful consideration, as well as a full knowledge of what might be elicited or led by the Crown if character is raised The potential damage that may be caused to the defence case, if an error is made is considerable: Hamilton (1993) 68 ACrimR 298 at 300 to 301. Hunt CJ at CL there said, at 300: "All of this makes it obvious that counsel for an accused (and I include here a solicitor for the accused where acting as the advocate) bears a very heavy burden when advising the client in relation to the decision which the client must make as to whether good character should be raised. That advice can only be given properly when it is based upon a full knowledge of what may be elicited or led by the Crown should character be raised by the accused. It is not sufficient for counsel merely to rely upon a belief based only on information provided by the accused. To put it bluntly, a person facing a criminal trial which may have a severe consequence to his or her liberty and/or reputation is not always a reliable source of such information. Such unreliability may result from the client's educational standards, culture, health, embarrassment or lack of comprehension. It may also result from the client's mendacity. Not only is it wise, it is imperative, that the information which the client gives be checked from a source which is reliable before any forensic step is taken to raise character." 66 It may be accepted that there is here an issue of fact as to the reason defence Counsel gave for the decision that he says was in fact made. It does, however, appear that his inquiry into and his appreciation of the nature of the earlier incident, was at best superficial, and that the present case is one where counsel failed to fulfil the obligations enunciated in Hamilton. 67 The decision reached was, in my judgment, erroneous. The 'portfolio' assembled was impressive and persuasive, and the earlier incident, which did not involve any element of robbery, was capable of being explained away. More important, however, is the consideration I have previously identified, arising out of the conflict of interest counsel had in appearing for both accused. The present case is, to my mind, more akin to D (Court of Criminal Appeal New South Wales, 22 February 1996 unreported) where it was held that the failure of trial Counsel to lead character evidence did lead to a miscarriage of justice, than VRJ (Court of Criminal Appeal New South Wales, 22 November 1996) where the decision was regarded as justifiable, on tactical grounds, and not such as to lead to a miscarriage of justice. 68 The remaining matters relied upon by the appellants vary in their significance, and not all have been conceded as having any factual foundation. I do not, however, consider it necessary to resolve those factual issues. I am of the view that sufficient has been conceded, or is apparent on the face of the record, to show that the defence case was very poorly conducted, with the consequence that the jury were likely to have been left with a most unfavourable impression of its merits. 69 In this respect, the following matters appear to me to be of significance: (a) the circumstance that the trial Judge found it necessary to intervene repeatedly, by reason of the apparent inability of defence counsel to lay the foundation of his case in the cross examination of prosecution witnesses (leading to their recall, on more than one occasion) or to call the evidence that he wished to adduce from the appellants eventually leading his Honour to give counsel advice as to how he should go about his task; (b) the impression formed by the trial Judge, which is evident in his remarks on sentence, to the following effect: "The trial was marked by a number of occasions when … counsel, for both prisoners at the time, omitted to observe important rules of evidence and presentation. Without prejudice to either the prosecution or defence, a good deal of latitude was allowed to defence counsel to ensure that each of the prisoners had a fair trial." (c) the need for his Honour to correct a number of errors in the closing address of the appellants' Counsel including the observation, (of which he was particularly critical), to the jury to the effect that the "freedom of the accused was in (their) hands" and that the offence attracted a gaol sentence; (d) the failure to object to the evidence concerning Sara's aggressive and obscene response to the police when they sought to interview him, evidence which had no probative value but was of such a prejudicial kind that it should have been excluded under S135 or S137 Evidence Act 1995; (e) the failure to object to the jury question, the response to which floated the possibility, for which there was no factual foundation whatsoever, that Sara may have consumed drugs and that this may have accounted for his behaviour; (f) the cross examination of police inviting agreement to the proposition that the appellants had been intoxicated and boisterous, the net effect of which served only to raise the possibility that, being disinhibited by the effects of alcohol, they may well have engaged in the conduct charged (particularly as no direction concerning the relevance of intoxication to intent was sought or given); and (g) accepting a brief in a matter involving a serious offence, without the benefit of the assistance of a junior or experienced solicitor who was properly instructed, who was able to give meaningful assistance, and who would be present through the trial, when his own experience as trial counsel was so limited; 70 This combination of circumstances leads me to the view that there was a miscarriage of justice, such that the convictions of each appellant should be set aside. VERDICT UNSAFE AND UNSATISFACTORY? 71 Having regard to the conclusion reached in relation to the first ground of appeal, which would require the convictions to be quashed, this ground can be confined to the question whether upon the whole of the evidence properly before the jury, it was open to them to be satisfied beyond a reasonable doubt of the guilt of either appellant, as that principle was stated by the High Court in M (1994) 181 CLR 487;and in Jones (1997) 72 ALJR 78, and later explained in Gipp 155 ALR 15. If the question is answered in the affirmative, then it would follow that a new trial should be ordered. If the answer is in the negative, in respect of either accused, then a verdict of acquittal should be substituted for that accused. 72 The position in relation to Sara is relatively simple. Although the prosecution case depended largely upon acceptance of the complainant and of the police officers, there is nothing in their evidence which was inherently improbable, or cut down in cross examination. The assessment of those witnesses was quintessentially a matter for the jury, whose advantage in seeing and hearing the evidence unfold, and in assessing its credibility, must be respected. 73 I am not persuaded, after an independent review of the evidence earlier outlined, that the jury ought to have entertained a reasonable doubt in the case of Sara. It is accordingly my conclusion that, while his conviction should be quashed for the reasons raised in relation to the first ground of appeal, a new trial should be ordered. 74 The position in relation to Hunter is somewhat more complicated in that, on the Crown case, this appellant was not involved in the argument between the victim and Sara, either inside or outside the hotel, or in knocking the wallet from the hand of the victim, or in the initial blow to his head. Moreover, the victim conceded in cross examination that he did not know who had struck him while he was lying on the ground. The only evidence of physical contact came from the appellant himself so far as he acknowledged dragging the victim across the road, and away from Sara, by his foot, before 'chasing him off'. There was no evidence that he picked up the wallet, or that he subsequently shared in its contents. Nor was there any evidence of preconcert. 75 The Crown case against him, when properly viewed, depends upon the proposition that he acted in concert with Sara in the robbery and physical assault of the victim, and in that capacity either provided actual assistance, or was ready to provide assistance as required. It would not be enough to make out the offence charged (as distinct from some other offence) if, not being party to any such joint criminal enterprise, he was present at the early stages of the incident as a passive observer; or if after the assault and taking of the wallet by Sara, he intervened and assaulted the victim, or even if he received a share of the money known to have been stolen from the victim by Sara. Conduct of this kind, depending on the circumstances, might have given rise to offences of common assault, harbouring, or goods in custody, but these were not the charges preferred, nor was any statutory alternative left to the jury. 76 It is true that elaborate pre-arrangement is not an essential element for a joint criminal enterprise, since such an enterprise may arise spontaneously: see Lawson (Court of Criminal Appeal New South Wales 16 March 1988 unreported) where Gleeson CJ said, at 11: "… it is not necessary that there be any kind of elaborate pre-arrangement. If a number of people together set upon a person in the street and join in punching and kicking him, then their conduct bespeaks concert on their part." However, what is necessary is that there be concert in relation to the offence charged, not in relation to some other offence. Unless the evidence supported the rational inference that by his conduct, Hunter acted in concert with Sara in the robbery and assault of the victim, then he was entitled to an acquittal. 77 While it is the case that the victim remained of the view when giving evidence, that Hunter had struck him from behind before he fell to the ground, he had in his statement to the police made no mention of Hunter striking him before that occurred. The account that he gave was to the effect: "This bloke Torres then struck me in the right side of the fact with a closed right fist and I fell to the ground. In the cover up on the ground, this bloke Torres then kept punching me in the head area whilst I was covering up on the ground. As Torres was bashing his mate was standing right next to him. This bloke also punched me once while I was on the ground." 78 In cross examination, after being taken to this statement and asserting that he had omitted to mention the blow from behind while he was standing, he gave the following evidence: "Q. I'm asking you what happened, and you said with no equivocation that it was whilst you were on the ground that Hunter hit you. Not from behind when you're standing up? A. When I was standing I was hit from behind --- Q. By someone you don't know who? A. Mr. Hunter because I didn't see anyone else and when I got up there was only them two. Q. But see in here in this statement you say it happened on the ground? A. I hit the ground. Q. And you've already - you said not only that you were punched on the ground, but you were punched by Mr Hunter and then in this court today you have admitted that you could not have seen who punched you on the ground because you were covering up? A. I gathered that I was punched once by Mr. Hunter and once by Mr Torres -- Q. See your - CROWN PROSECUTOR: Please let him finish. HIS HONOUR; Let him finish please …. Q: Yes? A. Because they was both swearing at me while I was on the road. And they were right next to me, there was no-one else. Q. See the fact of the matter is Mr Forbes you do not know if Mr Hunter hit you at all? A. Not exactly no." 79 Earlier, there was the following exchange: "Q. And he (Sara) then claimed you in a sort of a wrestle and there was a bit of a scuffle between youse, during which you fell to the ground? A. No then Mr Hunter knocked me from behind and I hit the ground. Q. Are you sure that Mr Hunter punched you, well firstly are you sure that Mr Hunter punched you at all? A. He could've hit me with anything. Q. Well he hit you at all, are you sure he did? A. Cause I didn't - cause I didn't see it. Q. You didn't see it. Well how ca n you be sure it was him? A. Cause when I got up the two of them were together, there was no-one else around and they - Q. So you put two and two together and think it was him, that's about the best you can do isn't it? A. Yes." 80 Given this equivocation, and his reference to a 'sixth sense' that Hunter was behind him, and his concession that he had no recollection of seeing Hunter approaching him, there must remain a reasonable doubt as to the moment this appellant intervened, and whether he did any more than drag the victim away from Sara, in order to end the incident, as he deposed. 81 In these circumstances, upon the whole of the evidence, I am of the view that the jury ought to have had a reasonable doubt as to the guilt of Hunter in respect of the offence charged, and that as a consequence, in his case, a verdict of acquittal ought to be entered. For the reasons discussed by Sperling J, in Francipone (Court of Criminal Appeal New South Wales, 23 December 1988 at 28 to 34), I do not consider it appropriate to order a new trial that would permit the Crown to mount a different case, on the same evidence, in respect of the offence either of assault, or of goods in custody, or of harbouring, that may have been otherwise available to it. 82 In the light of my conclusion, it is inappropriate to deal with the application by Sara for leave to appeal against the severity of the sentence imposed. 83 The orders I would accordingly propose are as follows: (1) In the case of the appellant Hunter, appeal allowed, conviction and sentence quashed and a verdict of acquittal entered; (2) In the case of the appellant Sara, appeal allowed, conviction and sentence quashed, and a new trial ordered. 84 DUNFORD J: I agree with Wood CJ at CL.

R v Hunter and Sara

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Judgment (14 paragraphs)

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