The Queen v Griffiths[1998] QCA 397

IN THE COURT OF APPEAL 

SUPREME COURT OF QUEENSLAND

C.A. No.  263 of 1998

Brisbane

[R v.  Griffiths]

THE QUEEN

v.

ROY FREDERICK GRIFFITHS

(Applicant) Appellant

McMurdo P.

Shepherdson J.

Jones J.

Judgment delivered 27 November 1998

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - McMURDO P.

Judgment delivered 27 November 1998

1. I have read the reasons for judgment of Shepherdson J. who has thoroughly set out the relevant facts.

2. I agree with the orders proposed by him and generally with his reasons.  I would only add the following observations.  This trial was listed on 19 June 1998 as the number 3 trial in the week commencing 10 August 1998.  The system of listing of criminal matters in the District Court relies on the understanding that trials listed in a particular week will be ready to proceed at any time in that week: it is known by all who practice in the criminal jurisdiction that for various reasons trials listed early in the week often are adjourned for unexpected reasons or are completed earlier than anticipated.  There was therefore always a real likelihood that this trial would come on for hearing in the week of 10 August 1998.

3. It is of concern that the District Court at Southport was informed, at a trial review on Friday 31 July 1998, by the appellant’s solicitors, Witheriff Nyst, that the trial was ready to proceed as a three to four day trial and that counsel had been briefed.  This assertion was repeated at the trial review a week later on Friday 7 August 1998.

4. As often happens, the number 2 trial listed in the week commencing 10 August 1998 was unable to proceed and the appellant’s trial was then expected to begin on Tuesday, 11 August 1998.  The court, through its list clerk, was not informed until 1 p.m. on 10 August 1998 by Witheriff Nyst that the trial could not proceed on 11 August as there was a problem with funding, and Witheriff Nyst would not be acting for the appellant who would have to apply for Legal Aid.

5. It is completely unacceptable, to the court and to the client, for solicitors to continue on the record during trial reviews, informing the court that the trial is ready to proceed, without having in place proper funding for the trial.  Courts must be able to rely on what they are told by practitioners, their staff or representatives at trial reviews.  In the end, so far as appears from the material before this Court, the appellant, for whom Witheriff Nyst had acted since before and during the three day committal proceedings in December 1997, was left without legal representation on the afternoon before the commencement of his trial on serious matters.  This is a most concerning situation and one that should not be repeated.  If funding of the trial was not in place, the trial was not ready to proceed and the court should have been told of the problem, at least by the time of the trial reviews, so that the case could be properly managed.

6. The question is whether any injustice warranting this Court’s intervention has occurred as a result in the circumstances.

7. Fortunately, Legal Aid was able to be speedily arranged and an experienced solicitor-advocate, Mr Dooley, was engaged to conduct the trial.  The learned trial judge granted a one day adjournment to enable Mr Dooley to prepare the matter.  The trial proceeded on Wednesday, 12 August 1998.  As Mr Hanson Q.C. fairly and properly conceded, in these circumstances there was sufficient time for Mr Dooley to prepare the trial and a perusal of the record shows the appellant was adequately represented at his trial.  Mr Hanson Q.C. raised a number of matters which were not dealt with by Mr Dooley at the trial.  For the reasons given by Shepherdson J., there is nothing in the conduct of the defence case at trial that has resulted in any miscarriage of justice warranting interference by this Court.

8. I agree with Shepherdson J. that the appeal against conviction should be dismissed and that the application for leave to appeal against sentence should be refused.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 27 November 1998

1. On 13 August 1998 the appellant was convicted of three counts of unlawfully and indecently dealing with a female child under the age of 16 years, each count having a circumstance of aggravation namely, that at the material time the child was under the age of 12 years.

2. On each count the appellant was sentenced to 18 months imprisonment without any recommendation of eligibility for parole.

3. He has appealed against the convictions on the grounds that the verdicts “were unsafe and unsatisfactory given the nature of the evidence” and that the “learned trial judge should have allowed for an adjournment”.  He has also applied for leave to appeal against the sentence on the ground that it is manifestly excessive.

Appeal against conviction

4. When the appeal came on for hearing on 15 October 1998, the appellant was given leave to add a further ground of appeal which reads:-

“The trial miscarried in that:-

1. the appellant’s solicitor refused to follow his client’s instructions to apply to adjourn the trial in order to:-

1. retain counsel; and

2. make proper preparation for trial

2. lack of sufficient time for the appellant’s solicitor to prepare for trial had the effect that factors adverse to the complainant’s credit were not canvassed or not sufficiently canvassed with her at trial.”

The significance of this added ground will later appear.

5. The appellant, who is a single man, was born on 23 January 1940.  The first offence was allegedly committed on an unspecified date in June 1997, and the second and third offences on 5 August 1997.  All offences concern the same child who was 11 years old at the time of each offence.

6. In count 1 the appellant was alleged to have touched the child on the breasts and vagina.  In count 2 he was alleged to have again touched the child in the same places and then - and this was the subject of count 3 - he was alleged to have taken the child’s hand and placed it on his penis.

7. At the relevant times the child was living with her mother at a Gold Coast residence.  The mother had met the appellant some time earlier and one night she and the child had stayed at the appellant’s then residence because the mother had to hide from her boyfriend.  The mother formed a good impression of the appellant and later, when the appellant’s flat mate moved out and the appellant was looking for someone to flat with him, the mother invited the appellant  to reside with her and the child.  He accepted this offer, and there was evidence that in about April 1997 he began to live with the mother and the child.  He occupied his own room and the child and her mother occupied separate bedrooms.  He was employed at the time.  He cooked his own meals and did his own washing at a Laundromat. 

8. The child’s evidence-in-chief at trial was in the form of an audio video tape recorded on 5 August 1997 at the Surfers Paradise Police Station, when the child was interviewed by a female police officer.  This video became Exhibit 1 at the trial.  At the direction of the learned trial judge the child gave unsworn evidence.

9. The child’s evidence was that each of the three offences occurred when she and the accused were alone in the house.

10. The child said that a few weeks after the appellant moved into the house he began to give the child and her mother shoulder massages, and that these massages were quite openly done, there being nothing secretive about them (T22).

11. The mother agreed that she had seen the child massaged by the appellant.  When she was asked "And how would that take place?" she replied "we’d be sitting watching TV and he  would just say ‘would you like your shoulders massaged’? I think.”  "I saw it [as] harmless, we were both sitting there and there was nothing in it, nothing."   In cross-examination the mother agreed that the appellant would give the child a shoulder rub from time to time, but denied it happened regularly.

12. At trial before Senior Judge Hanger and a jury the appellant was represented by a Mr Dooley, a solicitor who, at the request of the Legal Aid Office at Southport, had been asked on 10 August 1998 to appear for the appellant at his trial on the above charges - the trial was expected to begin the next day 11 August.  In fact it began on 12 August and ended on 13th August. 

13. When this appeal came on for hearing on 15 October, Mr Hanson QC appeared for the appellant.  His written submissions at that stage were that the appellant’s trial was brought on at short notice, that the appellant was assigned a solicitor, Mr Dooley by Legal Aid, that the appellant gave instructions that he wanted Mr Dooley to apply for an adjournment so that counsel could be obtained, but that Mr Dooley refused and took on the trial himself; and that during the course of the trial the appellant wrote a note to the trial judge which he requested Mr Dooley to hand to the judge but he refused - a copy of the note was attached to an affidavit of the appellant sworn on 14 October 1998 and read next day at the hearing of the appeal.

14. Mr Hanson’s submissions went on to state that the appellant was concerned that a number of points established at committal during cross-examination of the complainant child were not sufficiently or not at all explored with her at trial and he detailed these in para. 11 of his affidavit;  that these omissions and the failure to seek to have the trial adjourned meant that the appellant was deprived of a significant possibility of acquittal, that being because:-

1. the trial required the services of an experienced trial counsel;

2. the matters set out in para. 11 of the appellant’s affidavit combined with other discrepancies between the complainant’s trial evidence and committal evidence may have affected the jury’s view of her credibility. 

Mr Hanson provided the following particulars of those other discrepancies:-

1. at committal the child said the accused had not touched her breasts on the second occasion whereas at trial she said that he had;

2. at committal she said that on 5 August she was wearing nothing under her upper garment whereas at trial she said she also wore a "crop top" a garment like a sports bra.

At trial, the complainant was cross-examined on these discrepancies and in his summing-up adverted to these matters.  The summing-up is not criticised.

15. Mr Hanson’s submissions on 15 October concluded by saying:-

"The inconsistencies mentioned above make the conviction unsafe and unsatisfactory."

16. The appellant’s affidavit sworn on 14 October 1998 made allegations against Mr Dooley.  On 15 October, Mr Dooley had not had any opportunity to respond to matters raised by the appellant against him including an allegation in para. 11 of his affidavit that on the second day of the trial he once again attempted to voice his concerns to Mr Dooley.  In para. 11 he also swore:-

"I advised him that he had not followed my instructions and as a result I was concerned about the way the trial had been conducted.  As a consequence I then wrote a letter addressed to Judge Hanger wherein I requested that the trial be adjourned because important points of evidence had not been placed before the jury by my solicitor.  Such points included:-

1. the complainant was not questioned about whether I told her not to tell anybody about the alleged incident (at committal the complainant said that I did not ask her not to tell anybody);

2. the complainant was not asked about whether she borrowed money from me to make the telephone call to S’s residence or whether I told her not to go out at night until her mother came home;

3. the complainant was not questioned about the conversation I had with her after she had called S’s residence whereupon I told her to leave a note for her mother;

4. the complainant was not questioned about her demeanor after making the telephone call to S or whether she had packed her bag to go to S’s residence;

In para. 12 the appellant swore “I then called Mr Dooley over to the dock and requested that he hand my letter to the judge.  He again refused to do so."

17. Towards the end of the hearing on 15 October, Mr Hanson sought and was given leave to add the ground of appeal which I have earlier set out.

18. The hearing was then adjourned to enable Mr Hanson to check with Mr Dooley on certain matters which had been raised in the appellant’s affidavit, and to enable this Court to obtain from the learned trial judge his report on the added ground of appeal.

19. The hearing resumed on 21 October.  By that stage the appellant’s solicitors Witheriff Nyst had obtained an affidavit sworn by Mr Dooley on 19 October 1998, and the learned trial judge’s associate had on the judge’s instructions responded to the added ground of appeal by bringing to this Court’s attention the following:-

1. a transcript of a review of the appellant’s case on 7 August 1998, before his Honour Judge Newton.

2. notes from the District Court Southport list clerk dated 19 October 1998.

3. a report dated 12 August 1998 from the Southport District Court list clerk requested by Senior Judge Hanger.

20. It is appropriate now to set out the events which led to Mr Dooley being retained to act - it is necessary to do this in view of the appellant’s claim on the first day of hearing the appeal that he was in effect incompetently represented and so lost the chance of a fair trial.

19 June 1998

At a call over on this day the appellant’s trial was set down as number 3 trial before Senior Judge Hanger in the week commencing 10 August 1998.

31 July 1998

The appellant’s trial was reviewed at 2.30 p.m. on this day.  Witheriff Nyst appeared and advised that the defence was ready and that Mr Macgroarty had been briefed.  The trial was estimated to last 3-4 days.

7 August 1998

The matter was again reviewed.  The transcript of the review on this day shows Witheriff  Nyst again told the judge at the review that the defence was “ready to proceed”, the estimate was “still the three day mark”, that the counsel was Mr Macgroarty, and in response to his Honour’s question “And there is no reason why the matter will not be ready for trial next week?”  the defence said “not at this stage, your Honour, no”.

10 August 1998

A report dated 12 August 1998 requested by Senior Judge Hanger and made by the District Court list clerk, showed

“Re Griffiths

Just prior to lunch time Monday 10 August I was advised by the DPP that No2 trial before his Honour Senior Judge Hanger would now not be able to proceed because the complainant was overseas.  After discussion with Judge Newton’s Associate ... I listed McGlone for mention for 9.30 a.m. Tuesday before his Honour Judge Newton.  I rang Jason Murakami from Witheriff Nyst and advised him that the Griffiths trial would be the next trial to proceed after the [naming the next matter].  At this point I was not yet aware that [naming the next matter] would continue into Tuesday.  Judge Hanger’s court had not yet adjourned for lunch.

After I returned from lunch at 1 p.m. Jason Murakami (Witheriff Nyst) rang to tell me there was now some problem with funding for Griffiths - something he had not been aware of when I spoke to him approximately 1 hour earlier.  He stated that Mr Griffiths would be seeking assistance from Legal Aid.  I told Jason that this would have to be listed for mention on Tuesday at 9.30.  I confirm the mention times with Judge Newton’s Associate.

Shortly after that Mr Griffiths phoned our office.  He told me that his solicitors could no longer act for him due to funding problems and that he was seeing Legal Aid that afternoon.  I advised Mr Griffiths that he would be required in court at 9.30 a.m. on Tuesday if he was not able to be legally represented.  I obtained his phone number

At 2.00 I e-mailed the DPP (copy attached) advising them of the mentions for McGeone and Griffiths. [List clerk telephoned solicitors in the trial listed after Griffiths notifying them to be ready to start that trial].  At about 2.20 I was advised that the matter of Griffiths was to be mentioned at 2.30.  At 2.25 I advised Karen Bryant from DPP (copy of e-mail attached) and rang Witheriff Nyst’s office.  I asked for Jason Murakami I was put through to Chris Nyst.  I told him the matter of Griffiths would be mentioned in Judge Hanger’s court at 2.30.   It was almost 2.30 when I spoke to him.  I apologised for the short notice ... .”

21. The transcript of the mention at 2.30 p.m. on 10 August shows Mr Nyst appeared for the appellant in which he said (inter alia):-

“I haven’t been much involved in the preparation of the matter but my understanding was that as of Friday we were told there was to be a contested plea today then a defended trial which my clerk understood was to go 3 days following it which really left us not much chance of getting a start in Griffiths because it was a three to four day trial.  Now as a result of that as at late Friday afternoon we advised counsel who has been briefed in the matter Mr Macgroarty that that was so and he hasn’t done any work on the matter to bring it to a trial situation but more significantly there were other matters that we had to put into place with our client.  He did not put anything in place as of Friday and was advised of no likelihood that he would have to.  As of today he has been contacted.  He said he is just not able to provide us with appropriate instructions if the matter is to proceed tomorrow so in the circumstances we would be asking that it go over to I suppose to the next call over but if it is to proceed tomorrow then it looks as though he would be unrepresented.”

22. The Crown opposed the application for adjournment and his Honour said:-

“I perhaps should indicate for the record that Judge Newton has informed me that at the review on Friday he was informed that this matter was ready for trial that counsel had been briefed there was no reason why it shouldn’t proceed this week.”

23. [I interpose to say that this statement by his Honour appears perfectly correct in light of what appeared in the transcript of the review on 7 August].

24. His Honour refused to adjourn the appellant’s matter and said:-

“I don’t see any reason why it shouldn’t be ready to proceed tomorrow even if different counsel has to be briefed.  It’s apparently a comparatively simple case and no doubt can be prepared by any competent counsel between now and tomorrow morning so I refuse the application.”

25. Mr Nyst said:-

“Your Honour could I make it clear though its not a matter of another counsel being briefed we won’t be in it.  What I’m being told is we will have no instructions as at tomorrow.”

26. I interpose to say that Mr Nyst’s reference to instructions appears to have meant instructions were withdrawn because the appellant had not paid Mr Nyst’s funds for the trial.

27. On this day, Mr Dooley appeared before Judge Hanger and sought and obtained an adjournment of the trial until 10 a.m. on 12 August.

28. Before turning to Mr Dooley’s affidavit, I note that the appellant’s affidavit sworn on 14 October 1998 and filed by the Town Agents of Witheriff Nyst said (inter alia):-

1. that on 10 August 1998 he was notified by Mr Murakami of Witheriff Nyst by telephone that his trial would start next day Tuesday 11 August, and that this was contrary to Mr Murakami’s previous advices that his trial would not commence in the week starting 10 August, because there were two preceding matters listed which would take up the majority of the week.

2. that later on 10 August, Mr Murakami had told him that Mr Nyst had appeared before Judge Hanger that day, that the trial would proceed next day and that the appellant should urgently apply to Legal Aid at Southport.

3. that the appellant made the necessary application and was told by the Legal Aid office that Mr Dooley from Dooleys Solicitors would meet him between 5 and 5.30 p.m. and that at about 5.20 p.m. Mr Dooley arrived.

29. The appellant’s affidavit contains a number of allegations against Mr Dooley and in particular:-

1. That about 5.20 p.m. on 10 August he asked Mr Dooley to apply for an adjournment on the basis that he, the appellant was concerned that he, Mr Dooley would not have time to prepare for the matter; that Mr Dooley replied that he would not be able to get a long adjournment but that he was going to ask for a 24 hour adjournment, that he told the appellant to report to his office at 9 a.m. the next day and that he the appellant “reiterated” his instructions to seek an adjournment to allow for reasonable preparation (these statements are in para. 5 of the appellant’s affidavit).

2. That on 9 a.m. on 11 August he attended Mr Dooley’s office and again asked him to seek an adjournment because he was concerned he would not have enough time to prepare; he said he told Mr Dooley he was concerned that he had not been allocated counsel, that there was no way “we could prepare for this trial in 1 day and that Mr Dooley assured him that he had read all the material and that he would be prepared”.  He said he had an interview with Mr Dooley for more than 1 hour (see para. 6 of the appellant’s affidavit).

3. That on 12 August 1998 during cross-examination of Crown witnesses at the trial the appellant wrote various notes for Mr Dooley to ask the prosecution witnesses various questions; that he spoke to him a number of times and advised him that most of the points which were brought out during the committal proceedings had not been raised during the trial; that Mr Dooley continued not to follow his instructions; that at the end of cross-examination he was still in the dock and called Mr Dooley over and asked that he recall the complainant to the stand; that Mr Dooley asked why, and the appellant said that he Mr Dooley had missed out major points that were brought out during the committal proceedings and that Mr Dooley told him the complainant could not be called back (para. 8 appellant’s affidavit).

4. After the hearing on that day and while seated on the park bench, the appellant who had been joined by his brother David, pointed out to Mr Dooley, items which he the appellant wanted addressed in relation to the complainant; that Mr Dooley asked how he knew about these discrepancies, and the appellant replied that they were brought out in the committal proceedings.  He alleged that Mr Dooley then became agitated and said he did not want to be compared to counsel who had conducted the committal proceedings (para. 9 of appellant’s affidavit).

5. That on 13 August 1998, he the appellant attempted to voice his concerns to Mr Dooley once again telling him that he had not followed his instructions and as a result he was concerned about the way the trial had been conducted; he then deposed to the letter addressed to the judge which I have earlier mentioned wherein he requested that the trial be adjourned because “important points of evidence had not been placed before the jury” by Mr Dooley.  These points listed in the affidavit included:-

“(a)the complainant was not questioned about whether the appellant told her not to tell anybody about the alleged incident (at committal the complainant said I did not ask her not to tell anybody)”;

“(b)the complainant was not asked about whether she borrowed money from me to make the telephone call to S’s residence, or whether I told her not to go out at night until her mother came home”;

“(c)the complainant was not questioned about the conversation I had with her after she had called S’s residence, whereupon I told her to leave a note for her mother”;

“(d)the complainant was not questioned about her demeanour after making the phone call to S, or whether she had packed a bag to go to S ’s residence”.  (para. 11 of appellant’s affidavit).

6. In para. 12 he said “I then called Mr Dooley over to the dock and requested that he hand my letter to the judge.  He again refused to do so”.

30. Mr Dooley’s affidavit shows that he was first admitted as a barrister and solicitor in New Zealand on 10 February 1975, that he was a member of the Queensland Bar from February 1984 to August 1992, that since August 1992 he has practised as a solicitor at Southport, that he has been on the roll of Barristers in New South Wales since 1986 but has never practised in that State in any capacity, that he has extensive experience in conducting criminal trials at District Court level and that he estimates that since 1984 he has conducted some 60 criminal trials in the District Court at Southport, which trials “have ranged from rape and grievous bodily harm to misappropriation and the lesser indictable offences”.  He further has sworn that after his admission as a solicitor in August 1992 he was appointed one of three solicitor advocates on the Gold Coast by the Legal Aid office, and he has continued to conduct trials in the District Court in that capacity since he has been admitted as a solicitor.  He was present in Judge Hanger’s Court on 10 August 1998 when Mr Nyst applied to have the applicant’s trial adjourned.  He said the essence of the Crown case was canvassed during argument; he said his Honour refused the application “in emphatic terms” and in doing so referred to the review of the previous Friday when the Court was told that the matter was ready to proceed to trial.   He said Mr Nyst informed the judge that his firm no longer held instructions from the appellant and was given leave to withdraw.

31. His affidavit went on to state that at 4.30 p.m. on 10 August he was approached by Mr Peter Lancaster an employed solicitor with the Legal Aid office at Southport, and who is also a solicitor advocate; that  Mr Lancaster told him of the appellant’s application to the Legal Aid office and a grant of Legal Aid for the trial which was to commence next day; that Mr Lancaster said he could not appear  because of other commitments and asked Mr Dooley if he would appear, and Mr Dooley agreed.  Mr Lancaster told Mr Dooley that the appellant had no file but that he was waiting outside the Legal Aid office to see him.  Mr Dooley said that because of the lateness of the hour he went directly to the office of the Director of Public Prosecutions and requested a copy of the  depositions.  He swore that once he received the depositions he quickly scanned them, he said they went to 200 pages most of which was Mr Macgroarty’s cross-examination of the complainant and he formed the view that it was not possible for him to be ready for trial the next morning.  He agrees he met the appellant outside the Legal Aid Office at about 5.20 p.m.  and had a brief discussion with him.  He said the appellant in response to his question, said he would be pleading not guilty to the charges and he said that he had no difficulty in obtaining the appellant’s instructions.  He said he told the appellant he would apply to adjourn the trial to the Wednesday to enable him to properly prepare saying he preferred to read the depositions before he had a conference with him, and that he would see him at 9 a.m. next morning at court.  Mr Dooley swore that the appellant agreed, and asked Mr Dooley if he thought he could be ready in 1 day;  Mr Dooley said “I told him that I could be ready if we both applied ourselves to the preparation”.  Mr Dooley has sworn that at no time during this conversation did the appellant instruct him to apply for a longer adjournment.

32. Mr Dooley  swore that he read all the depositions during the evening of 10 August and noted any discrepancies which he observed in the evidence of the complainant and other Crown witnesses at committal.

33. He has sworn that at 9 a.m. on 11 August 1998 he met the appellant at the District Court [this is contrary to the appellant’s claim that at 9 a.m. on that day he attended Mr Dooley’s offices].  Mr Dooley has deposed to a Ms Anne Nides from Legal Aid Office being present in relation to a query concerning the appellant’s eligibility for Legal Aid.  He said she had a discussion with the appellant in his presence; the appellant was to get certain information and Miss Nides then left.  The appellant remained with Mr Dooley until after he had appeared before Judge Hanger at 9.30 a.m. when he applied for an adjournment on the basis that whilst he had obtained and read the depositions he had not had sufficient time to take detailed instructions from the appellant.  He referred to the judge having adjourned the trial until the following day and contrary to what the appellant had sworn in para. 6 of his affidavit said:-

“Mr Griffiths did not request me to seek a longer adjournment.  He did not tell me that he was concerned that he had not been allocated counsel.  No interview took place at my office.”

34. He said that after he obtained the adjournment he told the appellant to sort out his problems with the Legal Aid Office, and to meet Mr Dooley at his office at 12 noon sharp.  He said the appellant left about 9.40 a.m. to obtain bank statements from his home and bring to the Legal Aid Office but did not attend at 12 noon, instead arriving at 2.30 p.m.  When Mr Dooley asked him why he was so late the appellant said he had gone to his home to retrieve the missing bank statements  and that he had seen a man about the sale or purchase of a motor vehicle.

35. Mr Dooley then deposes to a conference with the appellant until about 4.30 p.m.  He has sworn that during that conference the appellant made many references to Mr Macgroarty, who had appeared for him at the committal hearing, and he asked the appellant if Witheriff Nyst had taken a statement from him but the appellant was not sure.  Mr Dooley took a statement from the appellant and at the end of the conference asked the appellant to recover his file from Witheriff Nyst and bring it to him.  He said the appellant returned with the documents later that afternoon; those documents consisted of the depositions and the police brief (which Mr Dooley already had) and approximately 6 pages of analysis of the prosecution evidence at committal).  There was no statement from the appellant, and he raised this with him.  The appellant said he had been told by Mr Nyst that they had deliberately avoided taking a statement from him.  Mr Dooley has sworn that he was not provided with Mr Macgroarty’s brief on committal and commented in his affidavit that the instructions he received and his (Mr Macgroarty’s) notes would have assisted him to get a focus on his cross-examination of the complainant at the committal.

36. Mr Dooley then referred to the appellant’s allegations in para. 8 of his affidavit and he has sworn that he had a conference with the appellant at his office from 8.30 p.m. until 9.40 a.m. on 12 August 1998.  He said that overnight he had gone back over the depositions in light of the analysis on the Witheriff Nyst file; that at trial and during the course of his cross-examination of the complainant the appellant handed Mr Dooley notes on two or three occasions prompting him to ask certain questions which questions he asked.  He swore that before he ended his cross-examination of the complainant he asked Mr Griffiths if he had missed anything and he replied “No”.  In particular, referring to allegations in para. 8 of the appellant’s affidavit he has said:-

1. the appellant did not during his cross-examination inform him that points which had been brought out during committal proceedings had not been raised during the trial;

2. he did not ignore the appellant and spoke to him on each occasion that the appellant sought his attention;

3. he did not act contrary to the appellant’s instructions;

4. he reviewed the progress of the trial with the appellant during the luncheon adjournment and the appellant made no complaints of the manner in which he, Mr Dooley was conducting his defence;

5. the appellant did not ask him to recall the plaintiff while he was in the dock.

37. Mr Dooley then referred to para. 9 of the appellant’s affidavit.  He agreed that at the conclusion of the first day’s hearing the appellant and he sat on a bench opposite the court house to review the day’s proceedings.  He has sworn that during the course of this discussion the appellant told him there were a number of points which he believed had been brought out at committal but which had not been brought out during his cross-examination of the complainant; that to the best of his recollection they were the matters (b) and (c) in para. 11 of the appellant’s affidavit; that as well the appellant mentioned that he had paid for the complainant to go to Sea World as payment for some domestic work she had done for him; that the appellant said that he, Mr Dooley, ought to have cross-examined the complainant about that payment; that Mr Dooley did become irritated when told of these matters because he had asked the appellant before he concluded his cross-examination if he had missed anything and he had told him he had not.  He said he was also irritated by the appellant’s constant reference to “Kel” (Mr Macgroarty) and to “Chris” (Mr Nyst).  He formed the opinion that the appellant appeared to be still wedded to his previous legal advisers and he, Mr Dooley asked him not to compare him with them.  He has sworn that the appellant asked him if the complainant could be recalled and he told him she could not be recalled.

38. In relation to para. 10 of the appellant’s affidavit, Mr Dooley has sworn that the discussion referred to in para. 9 of the appellant’s affidavit occurred between 4.30 and 5 p.m.on 12 August and that the appellant did not return to court on that day.  He further denies that Mr Murakami attended court at approximately 2.10 p.m. and had a brief discussion with Mr Dooley and then left the court.  Mr Dooley said Mr Murakami did not speak to him at all on that day and not at 2.10 p.m. as alleged by the appellant.

39. Mr Dooley referred then to para. 11 of the appellant’s affidavit.  He has sworn that he met the appellant at court at 9.30 a.m. on 13 August 1998, and conferred with him until the resumption of the trial at 10 a.m.; he says that for the most part they discussed the issue as to whether or not he should give evidence when put to his election; that at the precise moment when the court stood for Judge Hanger’s entrance the appellant beckoned to him from the dock; that Mr Dooley went over to him, and the appellant told him he was going to ask his Honour to adjourn the trial because he believed there had been insufficient time to prepare and because some questions which had been put to the complainant at committal had not been put to her during her cross-examination at trial;  that the appellant showed him but did not give him a torn piece of paper on which there were notes to the appellant which began with the words “ask the judge”; that Mr Dooley asked him why he had not mentioned this during the conference which they had just concluded and he made no reply.  Mr Dooley said he asked him “Who have you been speaking  to?” and the appellant replied “Witheriff Nyst and my brother”.  Mr Dooley said he told the appellant “Well you can ask for an adjournment if you want to but if you do I will withdraw” to which the appellant replied “Well I don’t want that”.  Mr Dooley said he returned to his seat and as soon as he sat down he was tapped on the shoulder by Mr Jason Murakami of Witheriff Nyst who asked if he could speak to the appellant.  Mr Dooley said “What about?” and Mr Murakami said “About this trial and other matters”.   Mr Dooley said he asked Mr Murakami  not to speak to the appellant and he left.

40. He then referred to para. 12 of the appellant’s affidavit - I have earlier set it out, and he has sworn that para. 12 “is an absolute fabrication”.  He has further sworn “there never was a time whether in court or out of court that Mr Griffiths asked me to hand a letter or anything to his Honour Judge Hanger”; that on 19 October 1998, Mr Chowdhury [the Crown counsel appearing in the Court of Appeal] had faxed him a copy of a letter addressed to “Your Honour” which he understood the appellant alleges is the letter referred to in para. 12 of his affidavit and went on- “I say that the first time that I saw that letter was on 19 October 1998 when Mr Chowdhury faxed it to me”.

41. The affidavits of the appellant and Mr Dooley show disagreement in a number of respects.  On 21 October, 1998 at the resumed hearing of this appeal Mr Hanson did not asked this Court to resolve those disagreements saying, in respect of the disputed proposal to hand a letter to the learned trial judge “If my client is correct and Mr Dooley is wrong, it probably doesn’t go anywhere in the context of this appeal.”  At the resumed hearing Mr Hanson also informed the court that having regard to Mr Dooley’s affidavit he accepts that the appellant was adequately represented at trial and further accepts that having regard to Mr Dooley’s experience, time to prepare was sufficient; he reiterated a submission made on the first day of the hearing of the appeal namely that capable counsel should have been able to prepare on Monday afternoon for a trial on Wednesday.  He further said:-

“The complaint about the points that Mr Dooley missed and I’ve been through them last time we were here are probably not of sufficient substance to enable me to take the case within the principles set out in Greens case.”

42. Greens case was a reference to R v. Green [1997] 1 Qd.R 584.  He further submitted:-

“I said I couldn’t put it any higher than he’s missed a few points, missed a few talking points and before we knew his background the submission was that there was perhaps a combination of circumstances where the client was stampeded into a trial run by perhaps an inexperienced trial lawyer but that appears not to be the case so I can’t press that argument I was pressing last week.”

43. He candidly told this Court that submission which he had made on the first day of hearing of the appeal namely that there was not sufficient time to prepare and that the trial should have been adjourned to enable competent trial counsel to be retained could not be made out as there was no factual basis for the submission.  He conceded that all that was left in the appeal was an argument about points which it was said Mr Dooley missed and he described these as “talking points”.  These were the four points (a) to (d) set out in para. 11 of the appellant’s affidavit.

44. He was unable to contend that the appellant was not adequately represented by a reasonably competent and experienced lawyer.

45. The material now before this Court showed that there was nothing in the conduct of the defence case at trial such as to amount to “wholly exceptional circumstances” to entitle the appellant to have the conviction set aside and a retrial ordered (see R v Green [1997] 1 Qd.R. 584 at p. 587). Nor could it be said that Mr Dooley, in conducting the defence acted incompetently let alone conducted the defence in such a way that it fitted the description of “flagrantly incompetent” (see The Queen v. Paddon (CA No.122 of 1998)) - judgment delivered on 28 August 1998. 

46. Paddon, was a case in which the appellant sought to have a murder conviction set aside on the ground that the conduct of the defence by counsel for the appellant was incompetent with the result that the trial was rendered unfair and that a miscarriage of justice occasioned.  Chesterman J., with whose reasons the other members of the court agreed, referred to Green (supra), R v. Birks (1990) 19 N.S.W.L.R 677 and R v. Miletic [1997] 1 V.R. 582.  He said (at pp. 8 and 9):-

“The judgment in R v. Birks appears to have been the most influential.  It is to the reasons for judgment in that case that subsequent decisions have turned for assistance.  What emerges from the authorities is that before a Court of Criminal Appeal will set aside a conviction on the ground that the conduct of the defence occasioned a miscarriage of justice it must fit the description of ‘flagrantly incompetent’.”

47. At the end of the day, the points which it was said Mr Dooley missed in cross-examining the complainant were, as Mr Hanson submitted, matters which amounted to “talking points” in an address to the jury.  These omissions could not be said to amount to flagrant incompetence.  The four omissions appear in para. 29 of these reasons.

48. The appellant gave evidence in his defence.  He said that on each occasion he massaged the child’s shoulders and he denied the sexual allegations made against him. It is quite apparent that the jury must have rejected entirely his denials of touching the child in the manner alleged by her.  Had the jury had any doubt about his denials they must have found him not guilty.  Having rejected the appellant’s denials, the jury then had to decide in each charge whether or not the Crown had, by the child’s evidence satisfied them beyond reasonable doubt of the appellant’s guilt on that charge.

49. The jury had evidence of and comment by the trial judge during his summing up, upon the 2 discrepancies between the child’s evidence at trial and at committal - they are set out in para. 14 of these reasons.

50. Those discrepancies appear not to have caused the jury to have any doubt about the child’s evidence.

51. Each point in para. 11 is concerned with the child not having been questioned about a particular matter - each point appears not to relate to any inconsistency between the child’s evidence at committal and at trial.  In my view each of these was as Mr Hanson said a “talking point” in an address to the jury.

52. A consideration of all the evidence in this case has led me to conclude that failure to question the complainant child on each of the four points in para. 11 if it be a failure, does not raise a significant possibility that an innocent person has been convicted.

53. The evidence in this case shows quite clearly that it was open to the jury to convict the appellant on each charge.

54. I mention the evidence of S and her mother J.  The evidence-in-chief of S who was aged 11 years was put before the jury in video tape form (Exhibit 2).

55. Her evidence was allowed in as the learned trial judge said, to show consistency between the story told by the complainant in court and what she said to S after the incidents of 5 August.  J gave evidence that on 5 August she saw the complainant child to be very very distressed.   

The appeal against conviction should be dismissed.

Application for leave to appeal against sentence

56. Mr Hanson has submitted that the sentence imposed - 18 months - was manifestly excessive.  He concedes the top of the range of sentences for the offences in this case is 18 months.

57. The applicant has no relevant criminal history.  Nevertheless, this Court cannot interfere with the sentence imposed unless there has been some demonstrated error in the exercise of the sentencing discretion or, if there is no such error the sentence is manifestly excessive.

58. No such error has been demonstrated and it cannot be said the sentence is manifestly excessive.  The application for leave to appeal against the sentence should be refused.

59. Since the above reasons were prepared, I have read the reasons for judgment in this matter prepared by the President.  I endorse and agree with the comments of the President appearing in paragraphs 2, 3 and 5 of her reasons.

REASONS FOR JUDGMENT - JONES J.

Judgment delivered 27 November 1998

1. I agree with the reasons of Shepherdson J. and with the comments of the President.

2. I agree with the orders proposed.