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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v CCP  QCA 292
CA No 352 of 2018DC No 2752 of 2018
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 4 December 2018 (Devereaux SC DCJ)
18 December 2020
15 September 2020
Sofronoff P and Morrison and McMurdo JJA
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted of sexual offences against his daughter – where the appellant appeals against his convictions on the basis that there was a miscarriage of justice by the way in which his case was conducted – where the appellant argues that his then counsel and solicitor neglected to take full instructions from him and to consider all of the relevant and available material, particularly the record of his interview by police – whether the deficiencies in the preparation of the appellant’s defence could have affected the outcome – whether there was a miscarriage of justice
Criminal Code (Qld), s 668E(1)
Dhanhoa v The Queen (2003) 217 CLR 1;  HCA 40, cited
Nudd v The Queen (2006) 80 ALJR 614;  HCA 9, cited
TKWJ v The Queen (2002) 212 CLR 124;  HCA 46, cited
S J Hamlyn-Harris with N Edridge for the appellant
C N Marco for the respondent
Aitken Whyte Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: I agree with McMurdo JA.
- MORRISON JA: I have read the reasons of McMurdo JA and agree with those reasons and the order his Honour proposes.
- McMURDO JA: After a two-day trial by a jury in the District Court, the appellant was convicted of all counts on the indictment, which were sexual offences against his daughter. The offences were alleged to have been committed, in different locations where the complainant then lived with the appellant, in a period that began in December 2006 and ended in the middle of 2010. He was sentenced to various concurrent terms of imprisonment, the longest of which were for offences of rape for which the terms were eight years.
- He appeals against his convictions on the basis that there was a miscarriage of justice by the way in which his case was conducted. In essence, he argues that his then counsel and solicitor neglected to take full instructions from him and to consider all of the relevant and available material, particularly the record of his interview by police. As a result, it is contended, his case was presented in a way which deprived him of a prospect of an acquittal on the charges.
- For the reasons that follow, the appellant has failed to demonstrate that, through any failure by his lawyers to properly prepare and conduct his case, he was denied the prospect of an acquittal, and that there was a miscarriage of justice.
The evidence at the trial
- There were four witnesses in the prosecution case, who were the complainant, the complainant’s mother (“K”), the complainant’s stepmother (who lived with the complainant and the appellant during the period of the alleged offending) (“R”) and an investigating police officer. The appellant testified but did not call evidence.
- It is unnecessary to discuss in detail the complainant’s evidence of the events which constituted the offences. There is no argument that the verdicts, or any one of them, were unreasonable and not supported by the evidence.
- The complainant was born in 1994, so that the alleged offending occurred when she was aged 12 to 15 years. In 2007, she came to live with the appellant and R. Before long, she said, there were the first of the offences against her, by touching her in the area of her vagina and having her touch his penis. The complainant, the appellant and R then moved to another residence, where the offending continued and escalated. The appellant penetrated her mouth with his penis, and attempted to penetrate her vagina with his penis. They then moved to another residence, where the offending continued, including by this time the penetration of her vagina by his penis. The offending continued until she moved out of the house.
- There was no other witness to these events. There was one occasion, after she had woken up in her bed to find the appellant pushing his penis against her mouth, the complainant heard sounds of R’s footsteps outside her room. The appellant told her to lie down immediately, before R came to the door and asked what they were doing and was told by the appellant that the complainant was upset and that he was comforting her.
- There were two counts of rape and two counts of attempted rape. The complainant testified that she did not consent to that conduct, or any other conduct which was the subject of a charge.
- In cross-examination, the complainant agreed that before she finally moved out from the house, she had voluntarily returned for a short time. She agreed that after the time when she lived with her father, she saw him on a number of occasions socially, and that from time to time, she brought her first child to see him and he visited her house for occasions such as birthdays.
- She agreed that it was not until March 2016 that she went to police about this conduct, which was just after she complained to K and R (who by then was estranged from the appellant).
- In examination in chief, the complainant said that during the relevant period, she would smoke marijuana with the appellant. In cross-examination, the complainant said that “I’ve smoked marijuana, so I don’t have the best of memories.” She explained that she had also “blanked it out”, because she did not wish to remember these events. The complainant rejected the suggestion the appellant had never given her marijuana, and that she had found it in the house and smoked it without instruction from him.
- She admitted that she told others that she had had a mental breakdown. She said that at the time, she was taking anti-depressants as prescribed by a GP.
- She explained that she decided to complain after she had had her own children, because this “really put [the appellant’s conduct] in perspective.” She volunteered that before the period in which she lived with the appellant, she had been in foster care, because she had been raped by her older brother. She told the cross-examiner that she was fearful that if she had made a complaint about the appellant, she would be “ripped out and taken away again”. When asked to explain why she maintained contact with the appellant, the complainant said that “it wasn’t just for him”, but it was also to see R and two young children who had also lived in the third house where she lived with R and the appellant.
- She denied the suggestion that none of the conduct had occurred. The cross-examination ended as follows:
“I can’t put any motive to you for why you’d say this other than the fact that you’ve obviously decided that your life was a mess and the best way to fix it up was to turn up here and complain about your father. What do you say to that?---Disagree.
I thought you might.”
- R was in a relationship with the appellant from 2006 and they married in 2008. She worked mostly during the day. The appellant did shift work, which often had him at home when she was at work. R said that in February 2016, after a funeral for her nephew, the complainant telephoned her in a distressed state. She said that the complainant was crying and screaming and said words to the effect of “Dad sexually abused me for years, from when I was younger.” On the following day, R said, she visited the complainant. She was told by the complainant that the appellant had sexually abused her several times and that on most occasions, “he would get her stoned first.”
- In cross-examination, R said that the death of her nephew, which was by suicide, had distressed the complainant. She agreed that the complainant had moved in and out of her house on a number of occasions, but said that this did not occur until the complainant was about 16 years old. She agreed that on one occasion the appellant had asked her to move out.
- K gave evidence of being at a party at the home of the complainant and her partner at the beginning of 2016. The appellant was there, and holding the complainant’s child. The complainant then asked everyone to leave, and a few hours later, told her mother that she hated her, for not protecting her when the appellant had made her do things, including having sex, which she did not want to do. In cross-examination, she was asked only whether the things which she was told by the complainant were things that had happened after K and the appellant had separated. K agreed.
- The investigating officer gave brief evidence in chief, in which he said that he took statements from the complainant, R, and K, but that the complainant’s partner was unwilling to provide a statement. The officer was not cross-examined.
- The prosecutor tendered some formal admissions, before closing his case on the afternoon of the first day of the trial. They were admissions of the complainant’s date of birth, that her biological parents were K and the appellant, and of the periods in which the appellant lived at the three residences, where the offences were said to have been committed.
- Immediately after the closure of the prosecution case, the appellant, through his counsel, elected to give evidence. The appellant’s evidence in chief was brief. He named the people who were living in one of the houses. He said that after the complainant left the third residence, she kept in touch with the appellant and R, and that he had constant contact with her, in which she would come to his house perhaps once or twice a fortnight. She retained her own key to the house and he said there was “no unfriendliness”.
- The appellant said that he recalled telephoning the complainant to tell her that R’s nephew had committed suicide. He suggested to the complainant that she go to R’s workplace, and pick her up there. He told his counsel that there was no truth in the complainant’s allegations and that she had never complained to him about the way in which he had treated her.
- In cross-examination, he rejected the prosecutor’s suggestions that he had committed the alleged offences. Towards the end of the cross-examination there was this evidence:
“Now, there’s been some evidence about the consumption of marijuana. Is that something that you’ve consumed in the past?---I have, yes.
Okay. And you’ve consumed it, haven’t you, at times, at the various houses that [the complainant] has been living with at the time that she’s been living at those houses?---I absolutely did not.
And I suggest that, on occasion, you did share that with her; do you accept that?---I – I couldn’t, because I was still on two years parole, and I got drug tested every fortnight.
Okay. All right. But that wouldn’t stop you, you’d accept, supplying [the complainant] with cannabis; do you accept that?---I - - -
The appellant’s counsel then objected, saying (in the presence of the jury) that his client was “not charged with supplying” and that “they could have done that if they wanted to.” The prosecutor asked no further questions. The trial was then adjourned until the following day.
- On the next day, before the jury had returned, the trial judge discussed with counsel the evidence that the appellant had been on parole. His Honour proposed that the jury be told that the evidence was of no relevance, except in rebutting the suggestion that the appellant had shared cannabis with the complainant. Counsel agreed with the judge’s proposal. The jury returned and were given that direction by the judge. His Honour explained that there was no suggestion that the appellant was on parole in relation to a sexual offence and that his “history” was “obviously irrelevant, because the prosecution hasn’t aired it and does not rely on it.” The jury was told that they should not reason that because he was once convicted of an offence, he is the type of person who would commit the offences with which he was then charged.
The address by defence counsel
- The appellant’s counsel, Mr Nolan, addressed the jury briefly. He emphasised the importance of the onus and standard of proof. He told the jury that there were “pressure groups out there who want people who are simply accused [of offending] to be deemed to be guilty until they prove their innocence”.
- Counsel emphasised that after the complainant left the house for the first time, she voluntarily returned, and that after she finally moved out, she maintained contact with the appellant for many years. He suggested to the jury that all of this was inconsistent with the offending having occurred. Counsel reminded the jury that the complainant had conceded that she did not have a good memory because she had smoked a lot of marijuana.
- Mr Nolan told the jury that they should ask what it was that had happened in the course of the complainant’s life to make her suddenly complain about the appellant’s conduct. He said:
“Was it the nervous breakdown she spoke about, was it an incident in her life that she hadn’t told us about, was it some madness, was it something to do with the marijuana, was it to do with her depression? You don’t know. The bottom line is that she had a lot of opportunity from when she turned 16 to when she finally went to the police to talk about it, but she said nothing to anybody at all until shortly before March 2016 when she went to the … police station.”
- He completed his address as follows:
“I’m not going to continue on with this, because my submission to you, ultimately, is that her evidence is unreliable. I’m not here to call her a liar. I don’t have evidence to support that. If I did have, I would. I’d use it. But all I can say to you is that everything about her smells of unreliability. Everything about her makes you wonder what’s the real problem. I can’t answer that. I never will be able to answer it; I’m not qualified to. But I can answer this: I would be very reluctant, I would suggest, to ever convict somebody of what he’s accused of, because it’s serious, horrendous stuff.”
The preparation for trial
- This Court received evidence, by affidavit and oral testimony, from the appellant, Mr Nolan and the appellant’s previous solicitors. The witnesses differed in some respects, although, as I will discuss, the differences are inconsequential.
- On 15 June 2017, the appellant participated in a recorded interview with police which took about an hour. On the following day, having been charged with these offences, the appellant met Mr Hannay at his office in Southport for about 30 minutes. Mr Hannay was then retained and acted as the appellant’s solicitor before and during the trial.
- The appellant said that at this meeting, he handed Mr Hannay a copy of the charges and a disk containing the electronic record of interview which he had been given by police. (He also handed to Mr Hannay a typed document, which was his response to another matter, namely an application for a Domestic and Family Violence Protection Order which had been commenced against him by R.) He said that he then explained to Mr Hannay that he had limited reading and writing skills, and that he usually needed the assistance of another person to read lengthy documents to him.
- A few weeks later, at Mr Hannay’s suggestion, the appellant again went to his office. The appellant says, although this is disputed by Mr Hannay, that Mr Hannay was able to speak only briefly about this matter on the day. However he told Mr Hannay at that meeting some things, which he says Mr Hannay wrote down in a notebook. He told him that K had been his “girlfriend” for only three to four months, and that he was not living with her when the complainant was born. He said that he told Mr Hannay that about seven years later, when the appellant was in prison for unrelated matters, he was informed by the Department of Child Safety that the complainant had been removed from K’s care, due to allegations of domestic violence and incest. He says that he asked Mr Hannay to obtain the complainant’s records from the Department of Child Safety offices at Pine Rivers and Beenleigh.
- Sometime later, the appellant was charged with unlicensed driving and driving under the influence. He appeared at a Magistrates Court in January 2018 on that matter, and indicated that he wished to plead guilty, before the magistrate adjourned the case in order for him to obtain legal representation. He engaged Mr Hannay to represent him in that case also, in which ultimately he pleaded guilty and was sentenced in July 2018. For that offence, he was sentenced to imprisonment for six months, with a parole release date set as 23 November 2018. On the day after his release from prison, he returned to his mother’s house where he found a letter addressed to him from Mr Hannay advising that he was required to attend court on 23 November 2018 for a hearing in relation to this case. He says that he had received no communication from Mr Hannay while he was in prison.
- On 28 November 2018, which was five days before his trial, the appellant went to meet Mr Nolan. This was the first time that he had met Mr Nolan and it was the first time that he had discussed the case with Mr Hannay since their meetings more than a year earlier. The conference in Mr Nolan’s chambers, the appellant said, took about 15 or 20 minutes.
- The appellant’s recollection of the conference is that Mr Nolan advised that there was “nothing to worry about”, and that it was a “word on word” case. He said that he instructed Mr Hannay and Mr Nolan to obtain Centrelink records, because he believed that the complainant, when she was 16 years old, had told Centrelink that she could not live at home with him and R due to irreconcilable differences between the complainant and R, rather than because of anything about him. He said that he did not recall being asked any questions about the charges or his version of the alleged events. He said he was not shown, or given a copy of, the brief of evidence until after his trial.
- Mr Nolan’s recollection was that the conference went “close to an hour”. He recalled telling the appellant, in effect, that it was the appellant’s word against that of the complainant, and that in a case of that kind, it was critical that a defendant give evidence.
- Mr Nolan said that he asked the appellant about his interview by police, and was told that he had made no admissions. Mr Nolan told the appellant that the prosecutor had indicated that he would not tender the record of interview, because it had no admissions within it. He told the appellant that he did not have a copy of the record of interview, but that he had been told by the prosecutor that its only relevance was where the appellant had given incorrect details of places where the appellant had lived at relevant times. Mr Nolan said that instructions were given by the appellant to make the admissions which were tendered at the trial. At this time Mr Nolan was unaware that there existed a disk which recorded the interview, and which had been handed by the appellant to Mr Hannay.
- Mr Nolan had some recollection of a conversation about Centrelink at this conference, but said that it related to events which occurred after the time of the alleged offences.
- Mr Nolan’s recollection was that the appellant expressly denied any offending against the complainant. He said that he stressed to the appellant the need for instructions which would explain why the complainant would make up such a story. He recalled telling the appellant that juries look for an explanation of why a false complaint would be made. He recalled asking the appellant to go away for the weekend and to write down anything which he could remember about the case.
- Thus far, I have referred to Mr Nolan’s affidavit evidence. In his oral evidence, Mr Nolan gave a more detailed recollection of his pre-trial conference with the appellant. He recalled the appellant saying that the complainant had a boyfriend at a relevant time, of whom the appellant and R disapproved, but that Mr Nolan could not remember what else he was told on that subject.
- Mr Nolan gave evidence about a document contained within Mr Hannay’s file, which were notes of a conference, prepared by Mr Nolan and signed by him. This document, headed “Conference with Chris Hannay Wednesday 28th November”, was described as notes which he had caused to be typed after the trial. He there noted that his brief had contained no statement from the client and no record of interview. He noted that in conference, the appellant had explained to him that he couldn’t read, and that Mr Nolan had gone through the complainant’s statement with him. He recorded the appellant’s instructions as being that the complaints were “complete nonsense”, that she was making it all up and that the appellant blamed “his wife” (apparently a reference to K) for the complainant doing so. He noted that the appellant had instructed that the complainant had always been in trouble and that he had to “kick her out of the house a couple of times”. He noted that the appellant “didn’t have any real explanation as to her motive for making [false complaints]”. He also noted that he had asked the appellant to go away over the weekend and write down anything he could think of that might establish a motive for making these complaints.
- Mr Nolan’s oral evidence was that before the trial, he telephoned the prosecutor to ask about the record of interview. The prosecutor told him that there was nothing relevant within it, and that there was not a transcript but that the prosecutor had listened to the recording.
- In his oral evidence, Mr Nolan said that there were two conferences which he had with the appellant before the trial: that which was the subject of his typed note and a later one in Brisbane on the Friday before the trial. However there is no note of a second conference, if that occurred, and the conference note indicates that there was only one conference.
- In cross-examination, Mr Nolan recalled that he was told by the appellant in a pre-trial conference that the appellant had also been accused of “interfering with some other kids”, and that Mr Nolan was apprehensive that this would become known to the jury. Mr Nolan said that when he did see the record of interview, which was a week before the hearing in this Court, he saw there what the appellant had said to police about allegations of that kind, and it reminded Mr Nolan of what he had been told in conference.
- Mr Hannay’s affidavit evidence was as follows. Although he had no actual recollection of being handed a disk containing the record of interview, it would not be unusual for a client to do so. He denied that there was an occasion when he was too busy to see the appellant when the appellant came to his office. Mr Hannay said that he initially briefed another barrister on these charges. However, as recorded in an email to the DPP on or about 22 November 2018, that barrister was no longer available and the brief had been handed by that person to Mr Nolan. A conference was organised with the appellant and Mr Nolan, at Mr Hannay’s office at Southport. Mr Hannay recalled that in the conference, Mr Nolan provided “an overview of the matter and went over the brief with him”. In his affidavit, Mr Hannay suggested that there were further conferences on 26 and 28 November 2018, with the appellant and Mr Nolan, in which Mr Nolan advised that he was prepared and ready for trial.
- In his oral evidence, Mr Hannay said that he recalled that there were two conferences with counsel: one with Mr Nolan and the other with the first counsel. He thought that the conference with Mr Nolan was at Southport, but that he might be wrong about that. In cross-examination, he agreed that he had no notes of these conferences.
- Mr Hannay said that before the trial, he listened to the record of interview and made some notes about it. He expected that those notes would be “in the hard file” or “in archives”. However, no such notes are in evidence.
- He was asked why a formal proof of evidence was not obtained from the appellant. He provided no real explanation for that, beyond saying that he had made notes of the record of interview and that he presumed that in the conferences with counsel, the lawyers must have discussed what was in the record of interview.
During the trial
- The trial began on the following Monday. The appellant went to Mr Nolan’s chambers, where he waited until Mr Nolan joined him to walk to court. They did not then discuss the case.
- Mr Hannay was not there. Mr Nolan was instructed by an employed solicitor of Mr Hannay’s firm, Mr Sarabi. The appellant had not met Mr Sarabi previously, and did not confer with him before the trial began.
- The appellant recalled passing notes during the trial to Mr Sarabi as witnesses gave their evidence. In particular, he recalled passing a note about an event where the appellant required the complainant to leave the house and he believed that he also passed a note about the complainant driving whilst unlicensed and not waiting at the scene of an accident, when she was aged 16.
- He did not speak to Mr Sarabi or Mr Nolan during the lunch or adjournment, except for a short conversation in which he asked why questions had not been asked as suggested by his notes. The appellant’s recollection was that Mr Nolan told him that he did not want to “upset the witnesses”. Mr Nolan’s recollection of that conversation is that he explained that if he unnecessarily attacked the complainant’s character, there was a likelihood that the judge would allow the prosecution to put the appellant’s criminal history before the jury.
- The appellant said that the only conversation he had with Mr Nolan about giving evidence was either after K had given her evidence, or during a break in that evidence. The appellant said that he was angry about K’s testimony, and that Mr Nolan advised him “against getting in the witness box, because it would bring up my criminal history”. He says that he responded by saying that he didn’t care about that and that he “wanted to have my say”. At the end of that conversation, the appellant says, he did not expect that he would be called to give evidence and that he was surprised when that occurred.
- Mr Sarabi recalled, in his affidavit, “constantly touching base with [the appellant] during [the trial] …, passing on messages to Mr Nolan and answering [the appellant’s] questions during the trial.” He recalled asking the appellant whether he wished to provide evidence, explaining to him the consequences of doing so and having him sign a file note to record that advice. Everything which the appellant then signed, he said, was first read out to the appellant by Mr Sarabi.
- In this Court, there is in evidence a file note, signed by the appellant and witnessed by Mr Sarabi, and dated 4 December 2018, in which the appellant acknowledged that he gave evidence at the trial “from my own discretion and advised my solicitor and barrister to do so with my direction.” There is another note, made by Mr Sarabi, headed “File Note 3-4 December 2018”, in which Mr Sarabi recorded the following things. On 3 December, Mr Nolan had asked the appellant whether he would be agreeable to giving evidence, and the appellant agreed, it being his wish to deny the allegations put to him. The appellant at that time had provided new information, not previously disclosed to his lawyers, which Mr Sarabi brought to Mr Nolan’s attention. This had included statements by the appellant that “I kicked her out of my property” and “she was involved in a hit and run”. Mr Sarabi recorded that Mr Nolan “used his discretion in whether he was going to use any of this information.”
- It is unnecessary to refer to Mr Sarabi’s (short) oral evidence.
The record of interview
- There is now a transcript of the interview by police, which is in evidence in this Court.
- And a disk containing the record of interview in video format was located in Mr Hannay’s firm’s file, as retrieved from the firm’s archives.
- The interview contains no statement which was adverse to the appellant on any issue in this case. In the interview, the appellant repeatedly rejected any suggestion that he had offended against the complainant.
- Ahead of the hearing in this Court, it was ordered that the appellant provide particulars of those parts of the record of interview which contained things which, it would be argued, should have been put to a witness or witnesses at the trial, and the basis for a submission that there was a miscarriage of justice by that not having occurred. I will therefore focus upon those parts of the interview which were particularised as relevant to this appeal.
- The first of them is a statement by the appellant to police that there was no television in the bedroom where the first of these offences allegedly occurred, and where the complainant had said that she and the appellant would sometimes watch television. It is said that had counsel known about this statement in the interview, he would have put that to the complainant and R, and asked the appellant to confirm it in his own evidence. It is said that this was a fact which affected the honesty and reliability of the complainant.
- The second particular is the appellant’s statement to police that the complainant had been expelled from a number of schools during the time that she lived with the appellant. He also told police that the complainant was a trouble maker who was often caught with drugs.
- The third particular was the appellant’s statement to police that the complainant obtained cannabis at school and from a person whom the appellant said was her then boyfriend.
- The fourth particular refers to the appellant’s statement to police that he evicted the complainant from the house three times, because she was coming home “stoned” and causing trouble with neighbours.
- The next particular involves a different subject, namely the timing of the preliminary complaint to R. The appellant told police that the complaint to R was made only four hours after an argument between the appellant and the complainant, during which he had yelled and screamed at her because she had been driving whilst affected by drugs, and with his grandchild in the car. This is said to have provided a motive for her to make a false complaint. Had this been known to defence counsel, it is said, he would not have concluded his cross-examination of the complainant by saying to her that he could suggest no motive for her false complaints.
- Next there is a statement by the appellant to police that the complainant had been free to move out of his house to live with her mother (K). This is said to have been support for the complaints being untrue, when there was a safe house available to her during the period of the alleged offending.
- Lastly, there is his statement to police that the complainant had made false allegations about other men, who were said to have stalked her. This was said to be relevant to the credibility of the complainant.
- The particulars also contained this submission:
“The appellant maintains the submission that, irrespective of these particulars, a miscarriage of justice arose from the absence of comprehensive instructions and the fact that the police interview was not considered. These factors, without more, constituted a departure from the essential requirements of a fair trial.”
A miscarriage of justice?
- In essence, there are two complaints which are made by the appellant, as to the performance of his then lawyers. The first is that proper instructions were not taken from him, as illustrated by the absence of any written instructions, at least prior to the commencement of the trial, or any notes taken in a conference which can now be found on the solicitor’s file. Secondly, there is the complaint that his trial counsel was unaware of what he had said to the police when interviewed.
- The appellant must do more than demonstrate incompetence or lack of diligence in the preparation for and conduct of his case. The incompetence of counsel is not of itself a ground by which a conviction may be overturned, according to s 668E(1) of the Criminal Code (Qld). In Nudd v The Queen, Gummow and Hayne JJ said:
“ As four members of this Court explained in TKWJ v The Queen, describing trial counsel’s conduct of a trial as “incompetent” (with or without some emphatic term like “flagrantly”) must not be permitted to distract attention from the question presented by the relevant criminal appeal statute, here s 668E of the Criminal Code (Qld). “Miscarriage of justice”, as a ground on which a court of appeal is required by the common form of criminal appeal statute to allow an appeal against conviction, may encompass any of a very wide variety of departures from the proper conduct of a trial. Alleging that trial counsel was incompetent does not reveal what is said to be the miscarriage of justice. That requires consideration of what did or did not occur at the trial, of whether there was a material irregularity in the trial, and whether there was a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial.
 Pointing to the fact that trial counsel did not take proper instructions from the accused, did not properly understand the statutory provisions under which the accused was charged, or had not read the cases that construed those statutory provisions, would reveal that counsel was incompetent. Showing all three of these errors would reveal very serious incompetence. But an appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused’s counsel. Was what happened, or did not happen, at trial a miscarriage of justice?”
- Consequently, it is unnecessary to discuss extensively the criticisms which might be levelled at the lawyers, Mr Nolan and Mr Hannay at least, in this matter. It is sufficient to say that there is substance in some of the criticisms which are made in the appellant’s argument. It was known that the prosecutor did not intend to tender the record of interview. But that did not put paid to its potential relevance for the trial. Because it was likely, in accordance with counsel’s advice, that the appellant would give evidence, there was a potential for his evidence to be contradicted by what he had said to police, and the risk of that could have been managed better if counsel had known what had been said in the interview and had discussed it with his client.
- Mr Nolan received the brief only shortly prior to the trial, and it was devoid of any instructions beyond perhaps the appellant’s denial of the offences. During the time in which Mr Hannay was retained in this case, there was a period of four months when the appellant was in prison. Even then, proper instructions could have been taken from him, and there was no apparent unavailability of the appellant during the balance of the period of Mr Hannay’s retainer.
- However, as I have said, the relevant inquiry in this appeal is whether the suggested shortcomings of the lawyers “can be related to a legal rubric of relevance to the jurisdiction being exercised by the court of criminal appeal”, which here is a miscarriage of justice.
- The appellant’s particulars as to the record of interview must now be considered.
- The first of them is the appellant’s statement to police that there was no television in a bedroom where some of the offences were said to have occurred. Quite possibly, had he considered the record of interview, counsel would have put that as a fact to the complainant and R, and asked the appellant about it in his examination in chief. However, the consequence of doing those things is another matter. For example, R and the complainant may have asserted otherwise, leaving the jury with a contest about a peripheral matter which the jury may have resolved against the appellant, and to his disadvantage for the things that did matter. There was no independent evidence of the absence of a television in this room.
- The statements by the appellant to police, as to the complainant’s errant behaviour, drug taking and misbehaviour at schools, may be considered together. To an extent, some of this conduct was revealed to the jury. The complainant admitted that she was a frequent user of cannabis. There arose a factual issue as to whether she had obtained that cannabis from the appellant. The appellant’s case did not dispute that he was a user of cannabis and that he kept the drug in the houses where this family lived. But again, there was no independent evidence to show that she was not encouraged to use the drug by him.
- More generally as to her errant behaviour, the likely impact of his statements about her, had he repeated them in the witness box, remains unknown. The jury is just as likely to have considered that she was a troubled teenager, who had had such a difficult childhood that she was more vulnerable to his influence and exploitation.
- Further, his trial counsel would have been careful, in the cross-examination of the complainant, not to make unnecessary imputations on her character because of the prospect that this would result in the jury hearing of the appellant’s not insignificant criminal history. To this end, the cross-examination of the complainant managed to confine the apparent relevance of the complainant’s drug use to the reliability of her memory.
- In the submissions for the appellant, emphasis was placed on the statement to police that the preliminary complaint to R was made only hours after a heated argument between the complainant and the appellant. It was suggested that this statement did provide an explanation for a false complaint. However the appellant’s statement to police in this respect needs to be seen in its context. In the relevant passage of the interview, the appellant offered in fact two explanations for what he said were false complaints. One was the heated argument which had occurred, but the other was quite a different point. The appellant said to police:
“we had a fucking pretty heated argument, she didn’t like what I had to say and then fucking four hours later, she rings up [R] putting this bullshit on. Four hours later. At which makes up why she didn’t talk to me for fucking three months is because her mother said the same thing … because her mother tried to accuse me of other kids to stop me from getting [the complainant] out of court, … out of foster care…. [Her mother is] trying to … get back at me for her brother and sister that she’s pissed off at, because her mother has told her that I’ve done something to them. When I wasn’t even living with the fucking thing at the time.”
Later in the interview, the discussion returned to the same subject in this passage:
“SCON MACDERMOTT: Okay, so why do you think that she’s said the things that she has?
[APPELLANT]: Because um, she’s pissed off at me for a start--
SCON MACDERMOTT: Mmhmm.
[APPELLANT]: Especially over the thing. And secondly um, because of what her mother reckons, it’s had something to do with her mother and um accusing me of her brother and sister. That’s um, I’ve got a fair idea of it’s uh, she’s trying to get back at me for that, when um, I wasn’t even living there to start with, and basically the same fucking thing um, two years of bullshit for them to go oh fuck, hang on. I was in jail for that one, an uh fuck I wasn’t even living with it then, she was with her new boyfriend, two fucking years. Oh and it and also fucked me over in jail for a bit. Fucking wouldn’t want to fight me after that, do you know what I mean? And like I said we had a pretty fucking heated, heated uh conversation.”
And a little further on, the appellant agreed that K had accused him of “being with her children”.
- Had this information been available to the appellant’s trial counsel, the use of it would have been very risky, and far from likely to be beneficial to the appellant’s case. Clearly, it could have been very damaging to the appellant’s case for the jury to hear that K had considered that the appellant had abused her other children. It may have been difficult to prevent the jury from hearing about that, whilst advancing the first explanation for a false complaint of these offences. Indeed, the appellant might have seen fit to have volunteered this other explanation, just as he did about his being on parole.
- Further, as was submitted for the respondent in this Court, it was far from clear that the first of the preliminary complaints had been that made to R, rather than to the complainant’s mother, which would have weakened his claim of an explanation of the first preliminary complaint as following a heated argument with her. More generally, it was inevitable that the complainant would dispute that she made a false complaint against him, and that she was driven to do so by a heated argument with him. But it is not unlikely that she would have claimed that a heated argument with him was a further cause of her decision to tell others of what he had done to her.
- Importantly, it must be recalled that, according to Mr Nolan’s evidence, which I would accept on this point, Mr Nolan pressed the appellant to think of any possible explanation for the complainant to make these claims, as and when she did, and the appellant could provide him with no explanation by the time the trial commenced some days later.
- Next there is the statement to police that the complainant had been free to leave his house and go to live with K. This point needs to be considered with the complainant’s evidence that she was concerned that she would be placed in foster care if she told anyone about what was happening to her. Had this point been raised with the complainant, it is not unlikely that the jury would have heard the history of the complainant’s difficult relationship with her mother, and no benefit to the appellant’s case is likely to have come from that disclosure.
- Lastly, there is the point, as the appellant told police, that the complainant had made false allegations about other men stalking her. There was apparently no independent proof of such conduct by the complainant, and she is likely to have denied making false allegations of that kind.
- In summary, there was nothing within the record of interview which was significant for the prospects of an acquittal. Nothing was lost to the appellant from his counsel not knowing what he had said to police.
- What remains is the general submission that, irrespective of those particulars, there was a miscarriage of justice from the absence of comprehensive instructions and the fact that the police interview was not considered. It is said that those factors, without more, constituted a departure from the essential requirements of a fair trial.
- That submission cannot be accepted. There was, in this case, a fair trial in all respects. There is no complaint that the jury was misdirected, that inadmissible evidence was put before the jury or that there was some other irregularity in the trial. Nor is this a case where there was a failure of process which makes it impossible for an appellate court to decide whether a conviction is just. At the highest for the appellant, it is a case where there were deficiencies in the preparation of the appellant’s defence, but none of which could have affected the outcome. There was no miscarriage of justice.
- I would order that the appeal be dismissed.
Dhanhoa v The Queen (2003) 217 CLR 1 at 13 .
Affidavit of E Kurz, paragraphs 3, 4.
(2006) 80 ALJR 614;  HCA 9.
(2002) 212 CLR 124 at 134  per Gaudron J; 148 , 156  per McHugh J; 157  per Gummow J; 157  per Hayne J.
(2002) 212 CLR 124 at 134  per Gaudron J.
(2002) 212 CLR 124 at 149  per McHugh J.
(2002) 212 CLR 124 at 135  per Gaudron J, 149  per McHugh J, 157  per Gummow J, 157  per Hayne J.
Nudd v The Queen (2006) 80 ALJR 614 at 620  per Gleeson CJ.
Evidence Act 1977 (Qld), s 15(2)(c).
Transcript of the interview p 20.
Emphasis added to the second of his explanations for her false complaints.
Transcript of the interview p 40.
The appellant said that he did not remember being asked to do so, but did not deny that it occurred.
cf Nudd v The Queen (2006) 80 ALJR 614 at 618  per Gleeson CJ.
- Published Case Name:
R v CCP
- Shortened Case Name:
R v CCP
 QCA 292
Sofronoff P, Morrison JA, McMurdo JA
18 Dec 2020