Tongahai v R

Preliminary issues 6Before turning to the substance of the ground, it is necessary to deal with two preliminary issues. The first is temporal: the appeal was lodged out of time and in the course of oral argument, senior counsel for the appellant did not ultimately dispute that an extension of time was required. Rather, he submitted that it was appropriate to consider whether the ground of appeal had merit, because, if it did, the Court should extend time to determine that a miscarriage of justice had occurred and the appropriate relief. 7The second preliminary issue concerned the evidential basis for the factual premise underlying the question of law. Thus, accepting that the applicant had a right to be present at the view, did he waive that right by giving free and informed consent to the view proceeding in his absence, or was that consent vitiated by things said by the trial judge in court and by his counsel in conference? To determine the latter question, was the applicant required or permitted to give evidence of his subjective beliefs, based on what was said in Court and what was said to him by his counsel? Alternatively, in the absence of any assertion that counsel was less than competent, was the issue to be determined by reference to what was said in open court, based on the transcript (to the content of which there was no challenge)? 8Senior counsel for the applicant on the appeal submitted that the Court was entitled, and indeed required, to have regard to the applicant's own evidence. To that end he sought to read an affidavit sworn by the applicant on 5 October 2013. The Director of Public Prosecutions sought to read an affidavit of trial counsel, Robert Sutherland SC, dated 1 April 2014. 9One matter demonstrated by this issue is that the sole ground of appeal was not confined to a question of law alone. Accordingly, even if time is extended, leave is required to pursue the proposed appeal: Criminal Appeal Act 1912 (NSW), s 5(1). 10It is convenient to deal first with the need for an extension of time and then turn to the principles applicable with respect to the presence of the accused at a view. The relevance of the affidavit material will be revisited in the light of those principles; the conclusion as to the application can then be addressed.

Need for extension of time 11A person seeking to appeal against the person's "conviction or sentence" is required to give notice of intention to appeal or to apply for leave to appeal within 28 days "after the conviction or sentence": Criminal Appeal Act, s 10(1)(a). On one view, the provision operates disjunctively, so that notice of intention to appeal with respect to a conviction should be given within 28 days after the applicant is convicted. In any event, the court may "at any time, extend the time within which the notice under paragraph (a) is required to be given to the court or, if the rules of court so permit, dispense with the requirement for such a notice": s 10(1)(b). 12A notice of intention to appeal has effect for six months after the day of filing and may be extended by the court: Criminal Appeal Rules, r 3A. A notice of appeal or an application for leave to appeal may only be given while a notice of intention has effect or, where no notice of intention has been given, within three months after the conviction or sentence. The latter period may be extended by the court before or after its expiry: r 3B. 13The records indicate that the date of conviction was the date of the jury's verdict, namely 2 December 2009. The applicant was sentenced on 26 March 2010. 14The first notice of intention to appeal was given on 1 April 2010. During 2010 and the first part of 2011, the applicant's then solicitor filed requests for extensions of time which were granted up to 29 July 2011. 15In 2010, the applicant had been seeking funds for an appeal to allow him to brief counsel privately. Sufficient funds not being forthcoming, an application was made for legal aid. That application was granted in order to brief counsel. Counsel was briefed and an advice received in late August 2011. The grant of aid was terminated. The applicant then instructed new solicitors and his file was transferred to them early in 2012. 16The final extension of time lodged by the former solicitor expired on 31 August 2011. That was not discovered until the Registrar so advised the applicant's new solicitor on 2 February 2012. A further request for an extension of time, dated 2 February 2012, was refused by a deputy registrar, notice of the refusal being given by letter dated 7 February 2012. The letter noted that the decision "does not prevent your client filing an appeal out of time with the Court, supported by an application for such an extension." 17On 18 October 2013 a notice of appeal was filed: an extension of time was granted by the Registrar on 17 January 2014, up to 18 October 2013. On later being advised that the deputy registrar had earlier refused to extend time, the Registrar expressed the view that he had no power "to review the decision of a deputy registrar" and, on that basis, the decision to refuse an extension of time remained in effect. 18While the Registrar has power to extend the periods fixed by s 10(1)(b) of the Act and by rr 3A and 3B, notice of intention having been given, it was the period for which that notice had effect that required extension beyond the nominal periods. It was not submitted that a notice could not be extended on more than one occasion, nor that the Registrar did not have power to extend time either before or after the expiry of the period, pursuant to r 3A(2). It is by no means clear that the Registrar does not have power to reverse an earlier decision to refuse an extension, although that would usually require fresh material being made available to found the exercise of the discretion. In any event, neither party submitted that this Court did not have power to grant an extension up to and including 18 October 2013, if a further extension were necessary. The Court was not invited to review either the decision of the Registrar to grant an extension or the availability of his power to, in effect, revoke his earlier decision, or if that course were open, to consider whether it was properly taken in the circumstances. 19Because at least the evidentiary issue raised is of some importance and, despite lengthy delays, there was no demonstration that the applicant had affirmatively abandoned his intention to appeal, the extension of time to 18 October 2013 should be confirmed.

Right of accused to attend view - legal principles 20The starting point for the applicant was the "essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused": Lawrence v The King [1933] AC 699 at 708 (Lord Atkin). The principle was further described as an "inviolable" rule in respect of a trial for a felony: ibid. The distinction between felonies and misdemeanours no longer exists in New South Wales and the "inviolable" rule has given way to practical considerations. Lord Atkin envisaged a possible exception in the case where "the violent conduct of the accused himself intended to make trial impossible renders it lawful to continue in his absence." Similarly, where the accused deliberately absconds the trial may proceed in his or her absence. In modern parlance, it is the principle of procedural fairness which requires that an accused must be given every reasonable opportunity to attend his or her trial. However, it is a right and not an obligation: if the accused refuses to attend he or she cannot later demand that a conviction be quashed on the ground of his or her absence: Karamat v The Queen [1956] AC 256 at 265 (PC, Lord Goddard CJ); cf R v Hallocoglu (1991) 29 NSWLR 67 at 72 (Hunt CJ at CL). 21There is older authority for the proposition that the accused need not be present at a view, a conclusion which appears to have been primarily based on the somewhat technical ground that "a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence": London General Omnibus Co Ltd v Lavell (1901) 1 Ch 135 at 139, cited with approval by Davidson J in Unsted v Unsted (1947) 47 SR(NSW) 495 at 498; in turn cited with approval in Scott v Numurkah Corporation (1954) 91 CLR 300 at 313 (Dixon CJ, Webb, Kitto and Taylor JJ). The proposition that a view could be conducted by a jury in the absence of accused, without invalidating the trial or conviction, was accepted in R v Martin (1872) LR 1 CCR 378 at 380-381 (Bovill CJ), considered and applied in R v Abrahams [1956] VLR 575 (Herron CJ, Martin and O'Bryan JJ), on the basis that the absence of the accused would not cause prejudice. 22It was contended in the course of the present proceeding that this line of authorities should not be followed because s 54 of the Evidence Act 1995 (NSW) permits a jury to "draw any reasonable inference from what it sees, hears or otherwise notices during [an] ... inspection". Thus, it was suggested, a "view" was now part of the "evidence". 23In Karamat, the Privy Council accepted that the "holding of a view is an incident in and therefore part of the trial", a characterisation accepted in Abrahams. That did not depend on what was observed during a view being treated as evidence. 24The potential importance of a view cannot reasonably be gainsaid. Similarly, the potential importance of the presence of the accused is also beyond contradiction. A view is often undertaken with a "shower", that is someone who points out particular features of the premises to the judge and members of the jury. There is undoubtedly room for mistakes, misunderstandings and the possibility that changes have occurred since the events in question, which the accused may be aware of but which are not identified to the jury. The simple proposition that the accused has a right or entitlement to be present during a view should be accepted as a fundamental element of procedural fairness in a criminal trial. 25The entitlement is for the benefit of the accused: it is not an obligation which can be imposed on the accused at the potential cost of causing prejudice. It is not uncommonly the case, especially in relation to serious crime where the accused has been refused bail, that significant security steps may be taken to ensure that he or she does not abscond. Thus, the jury are likely to see the accused shackled, in prison uniform and with guards in attendance. In one case, the accused was taken to the view in a prison van: R v Crossman [2011] QCA 126; [2011] 2 Qd R 435 at [22]. In applying relevant provisions of the Queensland statutes, the Court in that case (Chesterman JA, Fraser JA and Cullinane J agreeing) held that "the trial judge could not compel the appellant to attend the view and the order that he do so was made without power so the making of it was an error of law": at [32]. 26Absent some statutory provision to the contrary, that approach should be accepted as reflecting the relevant legal principles to be applied in this jurisdiction. However, it was not the present applicant's case that he was obliged to attend on the view, nor that he was not entitled to absent himself, as he did. The proposition on which the appeal turned was a more limited one, namely that he had been misled to believe that he had no right to attend. His right to attend in this case must be accepted.

Relevance of subjective views of accused 27The statutory basis for the ground of appeal is the third limb of s 6(1) of the Criminal Appeal Act, namely that there was a miscarriage of justice. The miscarriage was said to arise from a combination of the conduct of the trial judge and the conduct of trial counsel. As Gleeson CJ noted in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [7], "[t]he concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error." He further noted that there may be a miscarriage resulting from a failure to conduct a trial in accordance with legal procedure, either where the court is unable to determine whether the resultant conviction is just or not, or where there is a departure from an essential requirement of a fair trial. In most cases, the Chief Justice continued, what has to be assessed is the procedural step taken, rather than the reasons for taking it. He continued at [9]: "Sometimes, however, a decision as to whether something that happened at, or in connection with, a criminal trial involved a miscarriage of justice requires an understanding of the circumstances, and such an understanding might involve knowledge of why it happened. A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise." 28The process in the appellate court will involve an interplay of potentially conflicting principles of differing provenance. Some principles involve basic elements of the trial process, including the requirement that the tribunal must act upon admissible evidence, presented in circumstances where the accused is present and has an opportunity to test and contradict the evidence and, particularly in relation to serious crime, with the assistance of legal representation. A person accused of serious crime who is denied a reasonable opportunity to obtain representation may have a basis for setting aside a subsequent conviction: Dietrich v The Queen [1992] HCA 57; 177 CLR 292. However, where an accused is represented, a further set of principles is engaged, with respect to the relationship between counsel and client. Many decisions will be taken in the course of the trial without specific instructions and some, perhaps, even against instructions. In relation to matters where counsel is required to act on instructions, as with a plea, there is likely to be an obligation, of variable content, to give advice, both legal and practical, before obtaining instructions. Subject to such considerations, it is generally said that the client will be bound by steps taken by counsel in the course of the trial. The last principle is based largely upon the practical consideration that, were it otherwise, important principles of finality would be undermined. 29In R v Birks (1990) 19 NSWLR 677 Gleeson CJ (then on this Court) identified the principles that must be applied where a conviction is challenged on the basis that counsel failed adequately to present the accused's defence. A practical problem in such cases arises from the fact that only the accused and counsel will know what instructions were given, what advice was proffered and what decisions were or were not made. Those matters will not be apparent from the objective circumstances of the trial, recorded in the transcript. The principles to be applied by an appellate court in such circumstances were summarised by Gleeson CJ at 685, in the following terms: "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 of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 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." 30These principles have been referred to and applied in many subsequent cases, including, quite recently, Matthews v R [2013] NSWCCA 187 at [63] (Leeming JA, Hoeben CJ at CL and Beech-Jones J). Because the circumstances in which an inquiry can properly arise as to communications between counsel and an accused are incapable of being stated with precision, it will not infrequently happen that proffered evidence must be accepted on a conditional basis and, if sought, the deponents of affidavits cross-examined. Those steps were taken in the present case, subject to a final ruling by the Court as to the admissibility of such evidence. In this case, the evidence was irrelevant and inadmissible: it is necessary to explain why that is so.

Events at trial 31The first step in all cases must be to determine objectively, by reference to the record of the trial, the basis upon which the process is said to have miscarried. The relevant passages in the transcript fall within a short compass. 32The trial commenced on Monday, 26 October 2009. Justice Buddin gave initial instructions to the jury which included reference to the fact that a view would be taken of the place where the incident occurred, which would occur on Thursday morning. The following exchange then took place between Mr Sutherland, counsel for the accused, and the trial judge: "SUTHERLAND: Your Honour, thank you for that brief period of time. The timetable for the next few days which has been discussed with the learned Crown and with your Honour, the only additional matter I should raise is Mr Tongahai would like to be present on Thursday morning. He understands that that may require certain restrictions in relation to any positions of restraint as it were, but he would like to be there. HIS HONOUR: I'll have to consider whether or not administrative arrangements can be put in place for that. It's not necessarily something that happens as a right where he is represented by counsel, and obviously the question of his being secured and secured in the face of the jury is one reason why normally accused persons don't wish to be present for fairly obviously reasons. SUTHERLAND: If we could perhaps discuss what the administrative arrangements are for tomorrow, I'll take it up with Mr Tongahai today. HIS HONOUR: Putting that to one side for the moment, the administrative arrangements that I understand have been tentatively put in place, are ... It might be further complicated by whether or not Corrective Services can, in fact, affect [sic] having Mr Tongahai brought here and then brought to the establishment where the view will take place. So some consideration will need to be given to that. I don't know the answer to those questions. We'll work on the basis that's what he wants to do and see whether it can be given effect to that timing." (Emphasis added.) 33That passage was said to involve a clear indication from the trial judge that the accused had no right to attend the view and that it was not normal for the accused to be present. However, the passage, read as a whole, is by no means unequivocal. Although it commenced with the judge saying that "it", apparently referring to the attendance of the accused at a view, did not necessarily happen as of right, in the final passage he also appeared to assume that if the accused wished to be present then that wish would be accommodated. 34On the following morning, a brief exchange took place, again in the absence of the jury: "SUTHERLAND: Your Honour, apologies for any difficulties this may have caused with the people trying to make arrangements. My client tells me this morning, having reflected upon the interaction yesterday in court and considerations of the difficulties regarding the view, that he is content not to go tomorrow. HIS HONOUR: Can you let him know that that is the norm. SUTHERLAND: I have, your Honour. HIS HONOUR: It's rare that a person goes and because of security concerns, the accused does not want to be disadvantaged. They are dressed in prison greens, they are shackled, handcuffed. It doesn't create a very good impression on the jury. SUTHERLAND: That's precisely what we've reflected on overnight. I apologise for the inconvenience. HIS HONOUR: That being so, what we'll do is have the view at a time and in a fashion which assists the smooth running of the premises themselves. ... Thank you for that indication." 35Later that day the trial judge made a formal order that there would be a view, noting that he had taken into account various considerations that are outlined in s 53 of the Evidence Act: Tcpt, 28/10/09, p 31(5). 36It is appropriate to note the terms of ss 53 and 54 of the Evidence Act although, in the final analysis, nothing turns upon the application of those provisions. 53 Views (1) A judge may, on application, order that a demonstration, experiment or inspection be held. (2) A judge is not to make an order unless he or she is satisfied that: (a) the parties will be given a reasonable opportunity to be present, and (b) the judge and, if there is a jury, the jury will be present. (3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following: (a) whether the parties will be present, (b) whether the demonstration, experiment or inspection will, in the court's opinion, assist the court in resolving issues of fact or understanding the evidence, (c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time, (d) in the case of a demonstration-the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated, (e) in the case of an inspection-the extent to which the place or thing to be inspected has materially altered. .... 54 Views to be evidence The court (including, if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection. 37It is sufficient for present purposes to note that neither provision in its terms confers a right on an accused to be present at a view. Further, the requirement in s 53 that the judge be satisfied that the accused "will be given a reasonable opportunity to be present", in contrast to the position of the judge and jury who will be present, assumes that there is no obligation for the accused to attend. 38An objective assessment of the events recorded in the transcript leads to the following conclusions: (1) in discussing the proposed view, the occurrence of which was not opposed, the trial judge used language which might have suggested that the accused had no right to be there despite his wish to attend; (2) the accused was represented by experienced senior counsel who had obtained instructions before the issue of attendance was raised and who had a further discussion with the accused before a final decision was made; (3) having discussed the matter with counsel, the accused decided not to attend, based on practical considerations as to security arrangements which might prejudice him in the eyes of the jury; (4) if at any stage the accused had formed the view that he had no right to attend, he had the opportunity to clarify his belief with counsel before making a decision. 39The evidence proffered by the accused was to the effect that he had formed a subjective belief, based on the statement of the trial judge (set out in italics at [32] above), that he had no right to attend. Secondly, that belief was confirmed by his senior counsel. Thirdly, he asserted that, being convinced that the view was "extremely crucial" to his case, he only "reluctantly agreed" not to attend, because he understood he did not have such a right. 40This evidence triggered a response from the Director, who obtained an affidavit from trial counsel, Mr Sutherland. Both deponents were cross-examined, although the questions asked were focused and the matters were dealt with efficiently. (There was also evidence in relation to the issue of delay, to which no objection could be taken.) 41The thrust of Mr Sutherland's evidence was that he had not understood the trial judge to be denying the accused a "right" to attend if he wished, but rather had been stating that it was "not something which happened automatically where an accused was represented, particularly in circumstances where custody arrangements might be perceived to be somewhat prejudicial in the eyes of an attendant jury". He confirmed what appeared from the face of the transcript, namely that the accused changed his instructions after the discussion as to potential prejudice, an entirely practical consideration. His evidence was based primarily on what appeared in the transcript and on a file note made by his instructing solicitor. Senior counsel gave his understanding of the law and general practice in terms which made it quite improbable that he would have told the accused, if asked, that he had no legal right to be present at a view. He referred to his apology on Wednesday morning when he indicated a change in the accused's position, the apology being a response to the fact that he understood steps had been taken to arrange for the accused to be present, on the basis of his earlier indication of intention. 42If it were necessary to determine which of the accounts given by the applicant and senior counsel was more likely to be correct, I would prefer the evidence of senior counsel. There was no suggestion that his understanding of the law or practice in criminal trials was deficient in any respect. The decision-making process he recounted was entirely plausible. On the other hand, the applicant, in an affidavit sworn in October 2013, was giving evidence of events and beliefs formed at the very beginning of his trial, in October 2009. Further, although in colloquial terms one may understand why a person says that he "reluctantly" agrees to forego something to which he has not right, it is more likely that his reluctant agreement was to forego a right for practical reasons. 43No final view need be formed as to the proper inferences to be derived from the evidence given by the applicant and counsel: the evidence was irrelevant and therefore inadmissible. The transcript revealed a phrase used by the trial judge in an exchange with counsel. He was not advising the applicant, nor even describing trial procedure for the information of the applicant, as might occur if the applicant had been unrepresented. Reading the passage in the transcript as a whole, it is unlikely that the accused would have formed a subjective belief that he had no right to attend the view. However, if he did form such a belief it was a matter which he had an opportunity to discuss with his counsel, against whom there was no suggestion of incompetence, lack of diligence, or failing to follow instructions. The change of intention communicated by senior counsel in the second passage set out above was stated to be based on practical considerations and was in accordance with the rational expectations of those familiar with criminal trials. Those circumstances provided no warrant to investigate why particular decisions were made. They revealed no basis for concluding that there had been a miscarriage of justice. The proper outcome in these circumstances is to extend time but refuse leave to appeal. 44The Court should make the following orders: (1) To the extent that the applicant requires an extension of time within which to seek leave to appeal, grant the applicant an extension up to and including 18 October 2013 for the filing of the notice of appeal. (2) Reject as inadmissible the evidence of the applicant and Mr Sutherland with respect to the circumstances in which the trial judge directed that there be a view to be undertaken in the absence of the accused. (3) Refuse leave to appeal against the applicant's conviction on the charge of murder. 45FULLERTON J: I agree with Basten JA. 46DAVIES J: I agree with Basten JA.

Amendments 15 May 2014 - Amending order (2) by adding the word "to" after "respect". Amended paragraphs: Coversheet, [44] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2014